R v SH

Case [2006] VSCA 83 20 April 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 174 of 2005

THE QUEEN
	v.
SH

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JUDGES:	WARREN, C.J., CHARLES and CHERNOV JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2006
DATE OF JUDGMENT:	20 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 83

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Criminal Law – Sentencing – Evidence of events occurring after sentence – Whether admissible on appeal – Appellant assaulted while in gaol – Significant deterioration in appellant’s psychiatric wellbeing – Expert evidence as to appellant’s state of mind not taken into account – Specific and general deterrence of less significance – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T. Kassimatis	Victoria Legal Aid

WARREN, C.J., CHARLES and CHERNOV JJ.A.:

On 3 February 2005, the appellant pleaded guilty in the County Court to two counts of burglary, one count of theft, one count of robbery and one count of administering a substance capable of interfering substantially with bodily functions committed on 3 April 2004. On 1 June 2005, a total effective sentence of four years’ and four months’ imprisonment was imposed and a non-parole period of two years and two months was fixed. Moreover, the appellant was ordered to pay compensation in the sum of $700 to Nada Storer and $500 to RACV Insurance with respect to the monies stolen. The appellant was granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958.

Prior to the offending, the appellant worked as a carer for the elderly whereby she would visit elderly persons in their own home and attend to their needs. This employment provided the appellant with much satisfaction and pleasure against a personal background of estranged parents, placement in institutionalised care as a child and teenager, treatment by violence and the suffering of ill health, including depression and associated medication. At the time of the offending, the appellant was 39 and had settled into a stable marriage with her husband and his two children and her own child from an earlier marriage. The appellant had little education.

On 3 April 2004, the appellant, having had an argument with her husband, did not sleep and consumed alcohol. At one point she took the entire family budget money for the week and visited a relative from whom she had bought some methyl amphetamine based drugs known as “Ice”. She did not return home and had difficulty in recalling what she had done during that time. The appellant suffered a let down after taking the drugs and went to the beach near Beaumaris. Her intention was to purchase some more drugs. As a result, she found herself near the home of a former client, Nada Storer, an 83 year old woman, who lived alone at Beaumaris. The appellant had cared for Ms Storer in the past. The appellant called at the home of Ms Storer, who informed the appellant that she was packing to go away.…

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 SH

Details

AGLC: R v SH [2006] VSCA 83
Case: [2006] VSCA 83
Decision Date: 20 April 2006

CaseChat Overview and Summary

The appellant, SH, was convicted and sentenced for a criminal offence and subsequently appealed against his sentence on the basis of several factors, including an assault he suffered while in prison which significantly impacted his psychiatric wellbeing. The nature of the dispute centred on whether evidence of the events occurring after the sentence could be considered on appeal and the impact of the appellant's post-sentencing psychiatric deterioration on his re-sentencing. The matter was heard in the High Court of Australia.

The primary legal issues revolved around the admissibility of post-sentence evidence in the context of an appeal and the extent to which it could influence the re-sentencing of the appellant. Additionally, the court had to determine the relevance and weight of expert psychiatric evidence concerning the appellant's state of mind, which had not been considered during the original sentencing. The court also had to balance the principles of specific and general deterrence against the appellant’s individual circumstances.

In delivering its judgment, the court held that evidence of the events occurring after the sentence, such as the appellant's assault in prison, could indeed be considered on appeal as it had a direct bearing on his mental state and therefore on the appropriateness of his original sentence. The court emphasised that the appellant's significant psychiatric deterioration was a critical factor that warranted reconsideration. The court found that the original sentencing had inadequately accounted for this deterioration and the associated expert evidence. Consequently, the principles of specific and general deterrence were deemed to be of lesser significance in this particular case compared to the appellant’s individual circumstances and psychiatric wellbeing. The court ultimately re-sentenced the appellant, taking into account the new evidence and expert psychiatric assessment.

The final orders of the court involved re-sentencing the appellant in light of the new evidence and expert psychiatric opinion, ensuring that his psychiatric state and the events post-sentencing were appropriately factored into the judicial decision-making process. The court's re-sentencing aimed to reflect a more accurate understanding of the appellant's current circumstances and needs.

Orders