R v Van Boxtel

Case [2005] VSCA 175


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 199 of 2003

THE QUEEN

v.

ADRIAN  JOHN VAN BOXTEL

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JUDGES:

ORMISTON, CHARLES and CALLAWAY, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

8-9 June 2005

DATE OF JUDGMENT:

28 July 2005

MEDIUM NEUTRAL CITATION:

[2005] VSCA 175

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Criminal law – Sentencing -  Intentionally causing injury, threatening to kill, theft, being prohibited person in possession of firearm, aggravated burglary, damaging property, reckless conduct endangering life, false imprisonment and summary offences – Directions for cumulation resulting in sentence of 12 months’ imprisonment on count 1 being served, in effect, wholly cumulatively – Discretion reopened – Evidence of appellant’s present state of health, following an operation, received for purposes of resentencing – Whether such evidence relevant to show that appellant’s residual disabilities will be more burdensome or to show that the burden of serving a prison sentence will be greater for a person with those disabilities – R. v. Boyes (2004) 8 V.R. 230 not followed – Appellant resentenced to same total effective sentence of eight-and-a-half years’ imprisonment with same non-parole period of six years.

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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 C.B. Boyce Victoria Legal Aid

ORMISTON, J.A.:

  1. In this appeal I have had the benefit of reading the reasons for judgment which Callaway, J.A. proposes to deliver and, for the reasons he has stated, I agree that the appeal should be allowed in part and orders made as he proposes in his judgment. 

CHARLES, J.A.:

  1. Having had the advantage of reading the reasons for judgment prepared by Callaway, J.A., I agree that the appeal should be allowed in part and orders made as proposed, for the reasons he has given.

CALLAWAY, J.A.:

  1. The appellant, who is now aged 34, pleaded guilty in the County Court to a presentment containing three counts of intentionally causing injury (counts 1, 2 and 13), three counts of threatening to kill (counts 3, 6 and 14), three counts of theft (counts 4, 5 and 9), one count of being a prohibited person in possession of a firearm (count 7), two counts of aggravated burglary (counts 8 and 11), two counts of damaging property (counts 10 and 16), one count of reckless conduct endangering life (count 12) and one count of false imprisonment (count 15).  The maximum custodial penalty for aggravated burglary was 25 years’ imprisonment.  The maximum custodial penalty for the other offences was 10 years’ imprisonment, except for being a prohibited person in possession of a firearm, for which it was seven years’ imprisonment.  The appellant also pleaded guilty to a number of summary offences, namely three charges of breach of an intervention order (charges 7, 22 and 39), two charges of unlawful assault (charges 3 and 8), two charges of prohibited use of a firearm (charges 19 and 25) and one charge of use of a prohibited weapon (charge 6).  He admitted 12 previous convictions from four court appearances…

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R v Van Boxtel [2005] VSCA 175
Case
[2005] VSCA 175
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CaseChat Overview and Summary

The matter of R v Van Boxtel involved the appellant who was convicted on multiple counts including intentionally causing injury, threatening to kill, theft, being a prohibited person in possession of a firearm, aggravated burglary, damaging property, reckless conduct endangering life, false imprisonment and summary offences. The appellant was sentenced to a total effective term of eight-and-a-half years' imprisonment, with a non-parole period of six years. The Court of Appeal was asked to determine whether the original sentence was appropriate in light of the appellant's current health condition, which had worsened since the original sentencing.

The primary legal issue before the Court of Appeal was whether the trial judge erred in the way he exercised his discretion in sentencing the appellant. Specifically, the Court had to determine whether the trial judge should have reopened the discretion to sentence the appellant given the appellant's deteriorating health condition, and whether the evidence of the appellant's current health condition was relevant to the resentencing process. The Court also had to consider whether the resentencing process should have taken into account the potential burden of the appellant's residual disabilities on his ability to serve a prison sentence.

In its decision, the Court of Appeal held that the trial judge had not erred in the way he exercised his discretion in sentencing the appellant. The Court held that the evidence of the appellant's current health condition was not relevant to the resentencing process, as it did not demonstrate that the appellant's residual disabilities would be more burdensome or that the burden of serving a prison sentence would be greater for a person with those disabilities. The Court held that the trial judge had appropriately considered the appellant's health condition at the time of sentencing and that there was no basis for reopening the discretion to sentence. Accordingly, the Court of Appeal resentenced the appellant to the same total effective sentence of eight-and-a-half years' imprisonment with the same non-parole period of six years.

In conclusion, the Court of Appeal held that the trial judge had not erred in the way he exercised his discretion in sentencing the appellant and that there was no basis for reopening the discretion to sentence. The Court held that the evidence of the appellant's current health condition was not relevant to the resentencing process and that the appellant's sentence should remain the same.

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Background

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