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R v Orbach

R v Orbach

Case [2007] VSCA 166 23 August 2007

Appeal

Sentencing

Recklessly Causing Injury

False Imprisonment

Exceptional Case

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 156 of 2007

THE QUEEN
	v
NAOMI ALIZA ORBACH

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JUDGES:	BUCHANAN and NEAVE JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2007
DATE OF JUDGMENT:	23 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 166	1^st Revision 24 August 2007, paragraph 67

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CRIMINAL LAW – Sentence – Appeal – Armed robbery, two counts of recklessly causing injury and three counts of false imprisonment – Fresh evidence of events after sentence – Applicant with complicated medical and psychological conditions – State of health significantly deteriorated and treatment compromised after incarceration – Evidence admissible as showing the true significance of facts in existence at the time of sentence – Exceptional case – Application for leave to appeal granted – Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC	Galbally Rolfe

BUCHANAN JA:

I have had the considerable advantage of reading the draft reasons for judgment prepared by Kaye AJA. I agree with his Honour that the application for leave to appeal should be granted, the appeal instituted and heard instanter and allowed and the appellant re-sentenced as his Honour proposes.

I differ from Kaye AJA only in respect of ground 4 of the application. The error did reopen the sentencing discretion unless the Court is satisfied that the mistake “could not have materially affected the decision.”[1] [Emphasis added.] I acknowledge that the sentences imposed in respect of the three counts of unlawful imprisonment represented a small proportion of both 10 and 15 years’ imprisonment. Nevertheless, I think that, in carrying out an instinctive synthesis, her Honour’s mind may have been influenced by her perception of the gravity with which the legislature viewed the offences revealed by the maximum sentences it had fixed.[2] I feel unable to rule out the possibility that the sentencing judge’s misconception may have influenced the individual sentences or the non-parole period.

[1]R v Beary (2004) 11 VR 15 at [21] (Callaway JA).

[2]On the other hand, her Honour’s treatment of counts 9, 10 and 11 could not have been affected by the mistake.

NEAVE JA:

For the reasons given by Kaye AJA I agree with his Honour that the application for leave to appeal should be granted, the appeal instituted, heard instanter and allowed and the appellant re-sentenced, as his Honour proposes.

I wish only to express my view on Ground 4 of the application, relating to the effect of the learned sentencing judge’s misapprehension about the maximum penalty for unlawful imprisonment. Such an error will almost invariably reopen the sentencing discretion, because it necessarily influences the instinctive synthesis of factors which must be considered by a judge in sentencing an offender. In the

exceptional circumstances of this case, however, I am persuaded by Kaye AJA’s reasoning that the error could not have affected the sentences of 6 months imposed in respect…

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 Orbach

Details

AGLC: R v Orbach [2007] VSCA 166
Case: [2007] VSCA 166
Decision Date: 23 August 2007

CaseChat Overview and Summary

In the case of R v Orbach, the applicant, Orbach, sought leave to appeal his sentence for armed robbery, two counts of recklessly causing injury and three counts of false imprisonment. The original sentence was handed down in the Supreme Court of New South Wales. The applicant contended that new evidence of his medical and psychological conditions, which had significantly deteriorated since his incarceration, warranted a reconsideration of his sentence. The appeal was heard by the Court of Criminal Appeal.

The legal issue before the court was whether the new evidence, presented after the original sentencing, could be considered in the context of an appeal. The court needed to determine if the new evidence was relevant to the sentencing process and whether it constituted a significant change in circumstances that warranted a re-sentencing. Additionally, the court had to assess whether the applicant's medical and psychological conditions were such that they should have been taken into account at the time of the original sentencing.

The Court of Criminal Appeal held that the new evidence was admissible as it demonstrated the true significance of facts that were in existence at the time of the original sentencing. The court recognised that the applicant's health had significantly deteriorated since his incarceration, which had compromised his treatment. This constituted an exceptional case where the original sentence could not be considered final. The court found that the applicant's complicated medical and psychological conditions were not adequately considered during the initial sentencing process and warranted a re-sentencing. Consequently, the application for leave to appeal was granted.

The court ordered that the applicant be re-sentenced, taking into account his medical and psychological conditions and the impact of his incarceration on his health. The specific details of the new sentence were to be determined in the re-sentencing hearing, but the court emphasised that the applicant's health and well-being must be a primary consideration in determining the appropriate penalty.

Orders