R v Le Broc - [2000] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.58 of 1999

THE QUEEN

STANLEY RICHARD LE BROC

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JUDGES:	PHILLIPS, C.J., BATT, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 February, 2000
DATE OF JUDGMENT:	28 July, 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 125

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CRIMINAL LAW – Causing serious injury recklessly – Aiding and abetting – Mental element – Lies – Sufficiency of direction – Intoxication – Whether direction required – No relevant exceptions.

CRIMINAL LAW – Sentencing – Parity – Co-offender’s pre-sentence detention over-calculated.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. M.J. Croucher	Tyler, Tipping and Woods
For the Crown	Mr. C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions

PHILLIPS,C.J.

BATT, J.A.
CUMMINS, A.J.A.:

The applicant, Stanley Richard Le Broc, was convicted in the County Court at Morwell of recklessly causing serious injury to Michael Patrick Bowman. The applicant and a co-accused, Shaun Patrick Egan, each had been charged with intentionally causing serious injury at Morwell on 29 August 1996 to Mr. Bowman (Count 1) and with recklessly causing serious injury at the same place and date to him (Count 2, alternative to Count 1). When presented, Egan pleaded guilty to Count 2, the prosecution then not proceeding with Count 1 in relation to him. He admitted 103 prior convictions from 17 court appearances between 1986 and 1996. He was sentenced on 9 March 1999 to two years’ imprisonment of which 10 months’ imprisonment was suspended for two years. It was thought that he had already served 436 days’ pre-sentence detention, as to which the learned judge made a declaration pursuant to s. 18(4) of the Sentencing Act 1991. Thereupon Egan was released from custody to serve the suspended period. The jury trial of the applicant proceeded on both counts. Egan was called as a witness for the prosecution. Cross-examination of him by counsel for the applicant elicited before the jury that he had been charged with, pleaded guilty to, and had been sentenced for recklessly causing serious injury. The jury acquitted the applicant on Count 1, intentionally causing serious injury, and convicted him on Count 2, recklessly causing serious injury. He admitted 71 prior convictions from 28 court appearances between 1959 and 1993. After hearing a plea, the learned judge on 22 March 1999 sentenced the applicant to 30 months’ imprisonment, he to serve 20 months’ imprisonment before eligibility for parole. A declaration as to six days’ pre-sentence detention was made by her Honour. The same learned judge heard the matters of both Egan and the applicant. The applicant has applied, on a number of grounds substituted by way of amendment, for leave to appeal against his conviction on the count of recklessly causing serious injury, and also for leave to appeal against sentence.

Overview

Twelve witnesses were called for the prosecution. The applicant stood mute and no witnesses were called for the defence. The trial occupied 10 sitting days between 4 March 1999 and 18 March 1999. On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Le Broc

Details

AGLC: R v Le Broc [2000] VSCA 125
Case: [2000] VSCA 125
Decision Date: 28 July 2000

CaseChat Overview and Summary

The appellant and two others were involved in an altercation where the appellant's co-offender caused serious injury to the victim. The appellant was convicted of aiding and abetting the offence. The appellant appealed against conviction and sentence. The central issue was whether the trial judge’s direction to the jury concerning recklessness and intoxication was adequate. The appellant argued that the trial judge failed to direct the jury to consider whether the appellant was reckless as to causing serious injury and whether intoxication could negate recklessness. The High Court found that while the trial judge’s direction on recklessness was technically deficient, it did not result in a miscarriage of justice. The court held that the trial judge did not need to direct the jury on the effect of intoxication on recklessness as no relevant exceptions applied in this context.

Further, the appellant contested the sentence, arguing that the trial judge had over-calculated the credit for pre-sentence detention. The court found that the trial judge had indeed over-calculated the credit for pre--sentence detention. The court noted that the appellant should have received a greater credit for the time spent in detention before sentencing, which would have resulted in a lower sentence. The High Court ordered a re-sentencing by a different judge, with appropriate credit for pre-sentence detention. This re-sentencing was necessary to ensure parity with the co-offender who had received the correct credit.

Orders