R v Tresize - [2008] VSCA 8

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 20 of 2007

THE QUEEN
	v.
EILEEN LYNETTE TRESIZE

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JUDGES:	VINCENT, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2008
DATE OF JUDGMENT:	30 January 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 8

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Criminal law – Sentencing – 55 year old female appellant pleaded guilty to one count of causing serious injury intentionally after stabbing a male acquaintance – Sentenced to four years’ imprisonment, with a non-parole period of two years – Crown conceded that the sentencing judge erred by sentencing the appellant as a serious violent offender – Appeal allowed – Re-sentencing – Various mitigating factors examined, including history of serious mental illness and effect of a violent home invasion two weeks prior to offence – Re-sentenced to three years’ imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R A Elston SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Doogue & O’Brien

VINCENT JA:

I will invite Neave JA to deliver the first judgment.

NEAVE JA:

The appellant, Eileen Lynette Tresize, who was aged 55 at the time of the offending, pleaded guilty to one count of causing serious injury intentionally. She was sentenced by a judge of the County Court to four years' imprisonment with a non-parole period of two years. This is an appeal, with leave,[1] against that sentence.
[1]On 12 October 2007 the appellant was granted leave to appeal against the sentence pursuant to section 582 of the Crimes Act 1958 by Vincent JA.

Background

The appellant, the victim and the other witnesses gave varying accounts of the circumstances of the offending. The uncertainty about the circumstances of the offence can to some extent be explained by the alcohol and cannabis consumed by everyone present when the events leading to the offence occurred. Neither party to the appeal relied on matters arising from those different accounts.

I set out the learned sentencing judges’ helpful summary of the agreed facts:[2]
[2]Reasons [3]–[5].

On 22 September 2005 [the appellant was at her] home... There were other people at the premises with [the appellant]. One of them was Dean Wilson, a 35 year old man who described himself as being on a Disability Pension for a psychiatric disability and as suffering from a drug induced psychosis. He was a friend or acquaintance of [the appellant] who had been at [the appellant’s] unit on previous occasions. He said that he came to [the appellant’s] unit with another man, Raymond Johnson, at about 11 a.m., although other accounts suggest that it was later than that. Mr Johnson was also on a Disability Pension. There were other people at the premises including Sue Haisman, a 42 year old woman, two 17 year old young men, Kade Norden-May and Matthew McKenzie, and others.
It was a social occasion of sorts. People were drinking alcohol and smoking cannabis. It appears that in the course of the…

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 Tresize

Details

AGLC: R v Tresize [2008] VSCA 8
Case: [2008] VSCA 8
Decision Date: 30 January 2008

CaseChat Overview and Summary

The appellant, a 55 year old female, appealed against her sentence for causing serious injury intentionally. She had pleaded guilty to the offence, which involved stabbing a male acquaintance. The sentencing judge had imposed a sentence of four years’ imprisonment, with a non-parole period of two years. The Crown conceded that the sentencing judge had erred in sentencing the appellant as a serious violent offender. The primary issue for the court was whether the original sentence was manifestly inadequate or excessive. The court considered the Crown’s concession and the various mitigating factors presented by the appellant, including her history of serious mental illness and the impact of a violent home invasion two weeks prior to the offence. The court found that the original sentence was excessive and re-sentenced the appellant to three years’ imprisonment, with a non-parole period of 18 months.

The court examined the appellant’s history of serious mental illness and the effect of the violent home invasion prior to the offence. The appellant had been diagnosed with borderline personality disorder, depression, and anxiety. The court also considered the impact of the home invasion, which had occurred two weeks before the stabbing. The court found that these factors significantly mitigated the appellant’s culpability and warranted a reduced sentence. The court held that the original sentence was excessive, given the mitigating circumstances, and re-sentenced the appellant to three years’ imprisonment with a non-parole period of 18 months. The appeal was allowed, and the re-sentencing was upheld.

Orders