R v Vandenberg - [2009] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 90 of 2008

THE QUEEN
	v
JOHN PATRICK VANDENBERG

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JUDGES:	NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2009
DATE OF JUDGMENT:	5 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 9

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CRIMINAL LAW – Sentencing – Manifest excessiveness – Recklessly causing serious injury (one count) and intentionally threatening serious injury (one count) – Severe attack resulting in enduring disabilities – Whether judge placed undue emphasis on the impact on the children of the appellant who were the victim’s natural children – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr P F Tehan QC	Michael Gleeson & Associates

NETTLE JA:

In this case, the appellant appeals with leave against a total effective sentence of three years and nine months' imprisonment, with a non-parole period of two years, imposed on him on pleading guilty to one count of recklessly causing serious injury and one count of intentionally threatening serious injury.

The judge sentenced the appellant on the count of recklessly causing serious injury to three years and six months' imprisonment and on the count of intentionally threatening serious injury to six months' imprisonment, and ordered that three months of the latter be served cumulatively on the former.

The circumstances surrounding the offences are set out in detail in the judge's sentencing remarks and it is unnecessary to repeat them at length. Suffice it to say for present purposes that the appellant was born on 12 October 1974 and at the time of the offences on 5 May 2007, was 32 years of age and living in a de facto relationship with a woman, Janet Senior.

Janet Senior had previously lived in a de facto relationship with the victim and had borne him three children but left the victim and their children in 2001 in order to be with the appellant. In or about late 2004 early 2005, however, the appellant asked them both to come and live with him, as tenants, and thereby share the financial load and be available to care for the children when the victim was working night shifts. That arrangement operated it seems more or less satisfactorily for something like two years until the commission of the offences.

At about 6 p.m. on 5 May 2007 there was an argument between Janet Senior and the victim about rent payable. It seems that she and the appellant had paid their rent to the victim in the expectation that he would pay it to the landlord, but that the victim had used the money for other purposes, perhaps gambling, and therefore that the rent due to the landlord had fallen some $2,000 into arrears and the landlord was threatening to evict them. Following that argument, the victim left to go to the Hallam Football Club for the evening.

Later, when the appellant returned home from work, Janet Senior told him…

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 Vandenberg

Details

AGLC: R v Vandenberg [2009] VSCA 9
Case: [2009] VSCA 9
Decision Date: 5 February 2009

CaseChat Overview and Summary

The appeal in R v Vandenberg involved the appellant, Vandenberg, who was convicted of recklessly causing serious injury and intentionally threatening serious injury. The court of appeal was required to determine whether the sentence imposed by the trial judge was manifestly excessive. The trial judge had sentenced Vandenberg to a term of imprisonment, a decision which the appellant challenged on the grounds that the sentence was excessively harsh, particularly considering the impact on his children who were also the victim’s natural children.

The key legal issue before the court was whether the trial judge had erred in his sentencing by placing undue emphasis on the impact of the sentence on the appellant’s children. The appellant argued that the trial judge had misapplied the principles of sentencing by focusing too heavily on the collateral consequences of the sentence rather than the nature and circumstances of the offences and the need for denunciation and deterrence. The court considered whether the trial judge’s focus on the children was a material error that rendered the sentence manifestly excessive.

In addressing the appeal, the court of appeal examined the sentencing principles and the reasons given by the trial judge. The court concluded that the trial judge had not placed undue emphasis on the impact on the children but had appropriately considered all relevant factors, including the severity of the offences and the need for general deterrence. The court found that the sentence imposed was proportionate to the gravity of the offences and did not constitute a manifestly excessive sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the original sentence. The court's decision underscored the importance of balancing various sentencing considerations, including the impact on family members, while ensuring that the sentence reflects the seriousness of the offence and serves the broader purposes of sentencing.

Orders