JUDGES:	NETTLE, ASHLEY and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2007
DATE OF JUDGMENT:	1 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 241

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CRIMINAL LAW – Sentence – Manslaughter, aggravated burglary and theft – Whether sentencing judge failed to consider offender’s intellectual disability in assessing moral culpability – Whether impermissibly small difference between total effective sentence and non-parole period – Whether excessive cumulation of individual sentences – Whether total effective sentence breached totality principle – Whether sentence manifestly excessive – Whether excessive disparity between sentences passed on applicant and co-offenders – No error demonstrated – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr J P Dickinson	Slades & Parsons

NETTLE JA:

I invite Ashley JA to deliver the first judgment.

ASHLEY JA:

Wayne Frederick Norris (conveniently, ‘the applicant’ or Norris Senior’) seeks leave to appeal against sentence passed upon him, by a judge sitting in the Trial Division, on 7 September 2006. On that day, he having earlier pleaded guilty, he was sentenced as follows:
·     Count 1, manslaughter[1] – 9 years’ imprisonment.
·    Count 2, aggravated burglary[2] – 5 years’ imprisonment.
·    Count 3, theft[3] – 2 years’ imprisonment.
The learned judge directed that two years of the sentence on count 2 be served cumulatively on the sentence on count 1. The total effective sentence was thus 11 years’ imprisonment. His Honour imposed a non-parole period of nine years. He also disqualified the applicant from obtaining a driver’s licence for a period of eight years; and he made a declaration of pre-sentence detention of 569 days.
[1]Common law offence, maximum penalty 20 years’ imprisonment.
[2]Crimes Act 1958, s 77, maximum penalty 25 years’ imprisonment.
[3]Crimes Act 1958, s 74, maximum penalty 10 years’ imprisonment.

The learned judge sentenced two co-offenders at the same time.

Wayne Leslie Norris (conveniently, ‘Norris Junior’) was sentenced to seven years and six months’ imprisonment on count 1, four years’ imprisonment on count 2, and 18 months’ imprisonment on count 3. The judge directed that 18 months of the sentence on count 2 be cumulated on the sentence on count 1, this yielding a total effective sentence of nine years’ imprisonment. His Honour fixed a non-parole period of six years and six months.

Joabie Bodere was sentenced to six years’ imprisonment on count 1, two years and six months’ imprisonment on count 2, and nine months’ imprisonment on count 3. The judge directed that nine months of the sentence on count 2 be cumulated on the sentence on count 1. The total effective sentence was six years and nine months’ imprisonment. The judge fixed a non-parole period of four years and three months.

Grounds of appeal

Each of the applicant and Norris Junior lodged an application for leave to appeal against sentence. Today we…

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 Norris

Details

AGLC: R v Norris [2007] VSCA 241
Case: [2007] VSCA 241
Decision Date: 1 November 2007

CaseChat Overview and Summary

The case of R v Norris involved the appellant who was convicted of manslaughter, aggravated burglary, and theft. The appellant appealed against the sentences imposed by the sentencing judge, arguing that the judge failed to consider his intellectual disability when assessing his moral culpability. The appellant also contended that the difference between the total effective sentence and the non-parole period was impermissibly small. Furthermore, the appellant argued that the sentences were excessively cumulative, breached the totality principle, and were manifestly excessive. The appellant also claimed that the disparity between the sentences passed on him and his co-offenders was excessive. The case was heard in the court of appeal.

The court was required to decide whether the sentencing judge failed to consider the appellant’s intellectual disability in assessing his moral culpability. The court also needed to determine whether the difference between the total effective sentence and the non-parole period was impermissibly small. The court was further required to assess whether the sentences were excessively cumulative, breached the totality principle, and were manifestly excessive. Finally, the court needed to determine whether there was an excessive disparity between the sentences passed on the appellant and his co-offenders.

The court found that no error was demonstrated in the sentencing judge's consideration of the appellant's intellectual disability. The court held that the difference between the total effective sentence and the non-parole period was not impermissibly small. The court also found that the sentences were not excessively cumulative, did not breach the totality principle, and were not manifestly excessive. The court further held that there was no excessive disparity between the sentences passed on the appellant and his co-offenders. The court of appeal therefore dismissed the appeal and refused the application.

The court made no orders as to costs.

Orders