R v White - [2009] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 947 of 2008

THE QUEEN
	v
CRAIG WHITE

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2009
DATE OF JUDGMENT:	6 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 177
JUDGMENT APPEALED FROM	R v Craig White (Unreported, County Court of Victoria, Judge Chettle, 2 December 2008)

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CRIMINAL LAW – Sentencing – Criminal damage – Threat to inflict serious injury – Causing serious injury recklessly – Mitigating factors – Borderline personality disorder diagnosis – Application of R v Verdins principles – Absence of submissions regarding application of Verdins principles – Failure to link diagnosed conditions with commission of offences – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr A D Trood	Robert Stary & Assocs

BUCHANAN JA:

I will ask Lasry AJA to deliver the first judgment.

LASRY AJA:

On 25 September 2008, the appellant pleaded guilty to one count of criminal damage, one count of threatening to inflict serious injury and one count of causing serious injury. He admitted prior convictions which included 32 convictions from nine court appearances between May 1989 and January 2007 and were mainly connected with drug use, possession, dishonesty offences, and, relevantly, three counts of criminal damage and one count of causing injury intentionally or recklessly.

On 2 December 2008 the appellant was sentenced in the County Court as follows: on count 1, the count of criminal damage, he was sentenced to six months' imprisonment; on count 2, the count of threatening to inflict serious injury, he was sentenced to 12 months' imprisonment; on count 3, being the count of recklessly causing serious injury, he was sentenced to two years' imprisonment. The sentencing judge ordered cumulation of the sentences in that three months of the sentence on count 1 was to be served cumulatively upon the sentence imposed on count 3. That resulted in an effective term of imprisonment of two years and three months, and his Honour ordered that the appellant serve 12 months before being eligible for release on parole.

The facts of the offending were disputed by the appellant. However, after hearing evidence, the sentencing judge accepted the account given by the victim. The evidence may be summarised as follows. On 26 September 2007, the victim of these offences, Anna Maria Straddiato, was seated in her Mazda sedan in Queen Street, Norlane, in the Geelong area. The vehicle was parked in the driveway of a private home and she was talking to a friend who was seated in the driver's seat of the vehicle. The appellant approached the car in possession of a knife and stabbed at the car bonnet with that weapon. The knife penetrated the metal of the vehicle. He

later grabbed Ms Straddiato by the hair and told her that he would kill her, and dragged her from the vehicle by her hair. There was…

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 White

Details

AGLC: R v White [2009] VSCA 177
Case: [2009] VSCA 177
Decision Date: 6 August 2009

CaseChat Overview and Summary

The case of R v White involved the defendant who was convicted of criminal damage and causing serious injury to another person. The matter was brought before the court for the purpose of determining an appropriate sentence. The court was required to consider the principles set out in R v Verdins, particularly the relevance of mitigating factors such as mental health conditions, in assessing the sentence.

The legal issues before the court were whether the diagnosed borderline personality disorder of the defendant should be considered as a mitigating factor in sentencing and whether the principles in R v Verdins had been properly applied. The court noted that while the defendant had been diagnosed with borderline personality disorder, there were no submissions made by the defence linking this condition to the commission of the offences. The prosecution also did not object to the consideration of this condition as a mitigating factor, but argued that it did not warrant a significantly reduced sentence.

The court held that, in the absence of any submissions from the defence linking the diagnosed condition to the commission of the offences, the court could not take it into account as a mitigating factor. The court also considered that the nature and circumstances of the offences warranted a substantial sentence. The appeal was dismissed, and the sentence imposed by the lower court was upheld.

No further orders were made by the court. The defendant's appeal against sentence was dismissed, and the original sentence was upheld.

Orders