R v Roach - [2005] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 227 of 2004

THE QUEEN
	v.
VICKI LEE ROACH

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JUDGES:	ORMISTON, CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 June 2005
DATE OF JUDGMENT:	8 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 162

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Criminal Law – Sentencing – Burglary, theft, reckless conduct endangering persons, negligently causing serious injury – Threats falling short of defence of duress – Appellant's disadvantaged background – Factors relevant to sentencing for negligently causing serious injury – Six years' imprisonment with non-parole period of four years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L.C. Carter	Robert Stary & Associates

ORMISTON, J.A.:

In this matter I will ask Callaway, J.A. to deliver the first judgment.

CALLAWAY, J.A.:

The appellant, who is now aged 46, pleaded guilty in the County Court to one count of burglary (count 1), one count of theft (count 2), one count of conduct endangering persons (count 3) and two counts of negligently causing serious injury (counts 4 and 5). The maximum custodial penalties for those offences are ten years' imprisonment for burglary and theft and five years' imprisonment for conduct endangering persons and negligently causing serious injury. The appellant admitted 125 previous convictions or findings of guilt from 23 court appearances between February 1976 and January 2003. The last court appearance, accounting for ten of those previous convictions, should not have been included on the further presentment. Her previous convictions were mainly for drug related offences and offences of dishonesty, but there were also six driving offences, including careless driving and failing to stop after an accident. In March 2002 she had been sentenced to an intensive correction order on charges of burglary, theft, handling and recklessly causing injury. She breached the intensive correction order. The order was cancelled and she was sentenced to six months' imprisonment.

The learned judge heard a plea for leniency on the appellant's behalf, in the course of which she herself gave evidence. His Honour was mistakenly provided with an earlier version of the presentment in which count 3 was conduct endangering life. He was, however, correctly informed of the maximum custodial penalty and referred to it in his sentencing remarks. The error having been brought to his attention, after the sentence was passed, his Honour said that it would have made no difference: the appellant's driving still warranted two years' imprisonment, of which only 12 months would be made concurrent. A ground relating to the erroneous version of the presentment has been abandoned.

The appellant was sentenced to two years' imprisonment on count 1, 12 months' imprisonment on count 2, two years' imprisonment on count 3, three years' imprisonment on count 4 and 12 months' imprisonment on count 5. Directions for concurrency and cumulation resulted in a total effective sentence of six years' imprisonment, in respect of which a non-parole period of four years was fixed.…

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 Roach

Details

AGLC: R v Roach [2005] VSCA 162
Case: [2005] VSCA 162
Decision Date: 8 June 2005

CaseChat Overview and Summary

In the matter of R v Roach, the appellant, Roach, faced sentencing for a series of criminal offences including burglary, theft, and reckless conduct endangering persons, as well as negligently causing serious injury. The case was heard by the Court of Appeal, which was tasked with reviewing the sentence imposed by the lower court. The appellant's legal team argued that the sentence was excessive, given his disadvantaged background and the mitigating factors that should be taken into account.

The legal issues before the court were whether the sentence imposed was manifestly excessive, particularly in light of the appellant's disadvantaged background, and whether the lower court had properly considered the relevant factors in sentencing for the offence of negligently causing serious injury. The court had to weigh the severity of the offences against the appellant's personal circumstances and determine whether the sentence was appropriate and proportionate. The court also needed to consider whether the threats made by the appellant fell short of the defence of duress and how this impacted the sentencing process.

The Court of Appeal found that the sentence of six years' imprisonment with a non-parole period of four years was not manifestly excessive. The court acknowledged the appellant's disadvantaged background but emphasised that this alone did not warrant a reduction in sentence. The court also considered the nature and circumstances of the offences, the need for general deterrence, and the interests of the community. In determining the appropriate sentence for the offence of negligently causing serious injury, the court found that the lower court had properly considered the relevant factors. The court concluded that the sentence was proportionate to the seriousness of the offences and the need to protect the community.

The Court of Appeal dismissed the appeal and upheld the sentence imposed by the lower court.

Orders