R v Ross - [2007] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 387 of 2006

THE QUEEN
	v
CAMPBELL FRANCIS ROSS

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JUDGES:	CHERNOV and VINCENT JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 September 2007
DATE OF JUDGMENT:	27 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 213

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Criminal law – Sentence – Recklessly causing serious injury – Unprovoked attack upon victim – Whether order made pursuant to s 85B of the Sentencing Act 1991 (Vic) constituted the imposition of ‘additional punishment’ – Appellant with limited financial means –Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson, QC	Tony Hargreaves & Partners

CHERNOV JA:

I ask Vincent JA to deliver the first judgment.

VINCENT JA:

The appellant pleaded guilty in the County Court at Melbourne, on 10 November 2006, to one count of recklessly causing serious injury. He had no prior convictions.

After hearing a plea in mitigation of penalty, at which a substantial body of material was produced, the sentencing judge, on 24 November 2006, imposed a term of imprisonment of two years and six months, in respect of which a non-parole period of 15 months was fixed.

Later, on 13 December 2006, the judge made an order, pursuant to s 85B of the Sentencing Act1991 (Vic), that the appellant pay compensation to the victim of his offending, fixed at $68,147.30. The Court has been informed that, subsequent to that order being made, civil proceedings were instituted by the victim, and they have been resolved on the basis that the compensation order would not be pursued, leaving the appellant with a liability of some $38,000. Arrangements have been made through members of his family to pay that amount.

Having been granted leave to do so, on 8 June 2007, the appellant seeks to overturn the sentences imposed upon him on the grounds that:

1.The learned sentencing judge erred in the exercise of her discretion in that she failed to give any weight to the making of the compensation order pursuant to s 85B of the Sentencing Act 1991 (Vic), its consequences and effects which, at the time of the imposition of sentence, she proposed to make.
2.There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed) by reason of the consequences and effects of the making of the compensation order pursuant to s 85B of the Sentencing Act 1991 (Vic) .
3.The sentence imposed is, in all of the circumstances of the case, manifestly excessive.

The Background

On Thursday 13 October 2005, the victim of the appellant's offending, Matthew Cassidy, attended the Keysborough Golf Course with a group of his work associates and participated in a fund-raising tournament. At approximately 6.00pm, the event finished and the group went to the club's function room for drinks and a meal.

Mr Cassidy stated that he could not recall the number of…

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 Ross

Details

AGLC: R v Ross [2007] VSCA 213
Case: [2007] VSCA 213
Decision Date: 27 September 2007

CaseChat Overview and Summary

In the case of R v Ross, the appellant was convicted of recklessly causing serious injury in an unprovoked attack upon the victim. The appellant appealed against his sentence on the basis that the order made pursuant to section 85B of the Sentencing Act 1991 (Vic) constituted the imposition of additional punishment. The case was heard in the Court of Appeal in Victoria.

The legal issue the court was required to decide was whether the order made pursuant to section 85B constituted the imposition of additional punishment. The court had to consider whether the order was proportionate to the offending, and whether it was manifestly excessive. The court also had to consider whether the appellant had limited financial means, which would impact the proportionality of the order.

The court found that the order made pursuant to section 85B was not the imposition of additional punishment, and that it was not manifestly excessive. The court noted that the appellant had a history of offending and had failed to comply with previous orders made under section 85B. The court also found that the order was proportionate to the offending, and that the appellant had not demonstrated that he had limited financial means. The appeal was dismissed.

The court did not make any orders in relation to the appeal. The conviction and sentence of the appellant remained unchanged.

Orders