R v Ross - [2001] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 45 of 2001

THE QUEEN

GREGORY NORMAN ROSS

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JUDGES:	CHARLES, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2001
DATE OF JUDGMENT:	29 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 223

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Criminal law - Sentence - Intentionally causing serious injury - Sentencing judge failed to take into consideration relevant evidence that the accused was affected by drugs at the time of the commission of the offence - Evidence adduced as to the disinhibiting effect of the drugs - Specific sentencing error - Re-sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. (pro bono)

CHARLES, J.A.:

I will call on Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

The applicant, who was, at the time of the commission of the offences involved, aged 34 years, pleaded guilty before the County Court at Melbourne on 7 March 2001 to a presentment containing one count of intentionally causing serious injury to a person (count 1) and two counts of theft (counts 2 and 3). He also admitted 25 findings of guilt, some of which resulted in the recording of convictions, arising from ten court appearances between 8 May 1985 and 13 June 1998. They relate to offences of theft, unlawful possession, the intentional causing of injury, assault with a weapon, criminal damage, unlawful assault, burglary, and going equipped for theft. These offences assume relevance in the present context as they demonstrate the existence of a propensity to engage in both violent and dishonest behaviour. After hearing a plea in mitigation of penalty, the sentencing judge imposed upon the applicant a sentence of six years' imprisonment on count 1 (the count of intentionally causing serious injury), six months' imprisonment on count 2 (theft) and three months' imprisonment on count 3 (the second count of theft). No order for cumulation was made and, in consequence, the applicant was sentenced to an effective term of imprisonment of six years in relation to which a non-parole period of four years was fixed. His Honour also ordered that any licence to drive a motor car then held by the applicant be cancelled and that he be disqualified from obtaining any further licence for a period of five years.

The applicant now seeks leave to appeal against the sentence imposed upon count 1.

Although a number of grounds were set out in this application, it is not, in view of the course which this matter has taken, necessary to address any of them. At the outset of the hearing before us, Mr Tehan of counsel, who had only recently received instructions to appear for the applicant, indicated that he sought leave to

add further grounds. In particular, he drew the attention of the Court to the apparent failure of the sentencing judge to direct attention to uncontested evidence before him that, shortly before the commission of his…

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 [2001] VSCA 223
Case: [2001] VSCA 223
Decision Date: 29 November 2001

CaseChat Overview and Summary

The case of R v Ross came before the court for the purpose of reviewing the sentence imposed on the accused for the offence of intentionally causing serious injury. The defendant's counsel argued that the original sentencing judge failed to consider pertinent evidence indicating that the accused was under the influence of drugs at the time of the offence, which had a disinhibiting effect. The court was tasked with determining whether this oversight constituted a specific sentencing error warranting a re-sentencing hearing.

The central legal issue before the court was whether the sentencing judge's failure to consider the evidence of the accused's drug-induced state at the time of the offence constituted a specific error in sentencing that warranted re-sentencing. The court needed to assess whether the disinhibiting effects of the drugs played a significant role in the commission of the offence and if this factor was material to the sentencing process. The court also had to consider the legal principles surrounding specific sentencing errors and the extent to which the error impacted the fairness and proportionality of the sentence.

In examining the evidence, the court concluded that the sentencing judge's omission to consider the drug-induced state of the accused was indeed a specific sentencing error. The disinhibiting effects of the drugs were significant enough to have influenced the accused's actions and were relevant to the assessment of culpability. Consequently, the court found that this error materially affected the fairness and proportionality of the sentence. As a result, the court ordered a re-sentencing hearing to be conducted with the proper consideration of the relevant mitigating factors. The final orders of the court required the sentencing judge to re-assess the sentence in light of the new evidence and ensure that the sentence reflected a fair and proportionate punishment, taking into account the mitigating circumstances.

Orders