R v White - [2005] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 274 of 2004

THE QUEEN
	v.
SHERMAN CALVIN WHITE

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JUDGES:	CHARLES, VINCENT and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2005
DATE OF JUDGMENT:	19 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 186

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Criminal law – Sentence – Intentionally causing serious injury – Strained relationship between appellant and victim – Manifest excess – Whether appellant denied full benefit of early guilty plea – Whether sentencing judge’s finding of “no reliable indication of remorse” was open in the circumstances – Nothing put before sentencing judge by counsel to show appellant was remorseful – Not incumbent upon sentencing judge to examine depositions in order to identify matters that might militate in mitigation of penalty – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.M. Horgan, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

CHARLES, J.A.:

I will invite Vincent, J.A. to give the first judgment.

VINCENT, J.A.:

The appellant was presented before the Supreme Court at Melbourne, charged with the attempted murder, on 4 June 2003, of his sister, Susan Mary French (count 1). He pleaded not guilty to that charge but guilty to an alternative count of intentionally causing serious injury to her.

This plea was not accepted by the Crown and a trial was conducted, at the conclusion of which the jury returned verdicts of not guilty of the principal offence but guilty on the alternative count.

After hearing a plea in mitigation of penalty, the sentencing judge imposed a term of imprisonment of four years, in respect of which he fixed a non-parole period of three years for this offence.

Having been granted leave to do so, the appellant now seeks to overturn that sentence on five grounds:

"1.The learned sentencing judge erred by finding that the appellant's plea of guilty to the count of intentionally causing serious injury reflected the overwhelming nature of the evidence against the appellant on that charge and did not warrant a significant reduction in the appellant's sentence;
2.The learned sentencing judge erred by failing to place sufficient weight on the appellant's plea of guilty to the count of intentionally causing serious injury;
3.The learned sentencing judge erred by finding that the appellant had failed to exhibit any remorse;
PARTICULARS
The learned sentencing judge erred by finding that he was unable to detect in any of the material in evidence in the case, or from the plea made on the appellant's behalf by the appellant's counsel, any reliable indication of genuine remorse;
4.The learned sentencing judge erred by ordering a non-parole period that is manifestly excessive when regard is had to the length of the head term of imprisonment;
5.The sentence imposed is, in all the circumstances, manifestly excessive."

Two further grounds, set out in the appellant's Notice of Grounds, were not pursued and accordingly need not be addressed.

The Background

The following outline of the circumstances surrounding 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 White

Details

AGLC: R v White [2005] VSCA 186
Case: [2005] VSCA 186
Decision Date: 19 July 2005

CaseChat Overview and Summary

The appeal in R v White concerns the sentencing of an appellant who was convicted of intentionally causing serious injury to the victim. The case was heard in the Court of Appeal. The primary issue before the court was whether the sentencing judge had erred in determining that the appellant had denied the full benefit of an early guilty plea and in finding that there was no reliable indication of remorse. The court also needed to determine if the sentencing judge should have examined depositions to identify potential mitigating factors.

The court considered the evidence presented at the sentencing hearing, including the strained relationship between the appellant and the victim. The court noted that no evidence of remorse was put before the sentencing judge by the appellant's counsel. The court held that it was not the responsibility of the sentencing judge to examine depositions to identify mitigating factors. The court found that the sentencing judge's conclusion that there was no reliable indication of remorse was open to them, given the lack of evidence presented. The court also determined that there was no manifest excess in the sentence imposed.

Consequently, the court dismissed the appeal, affirming the sentence imposed by the sentencing judge. The court found that the sentencing judge had properly considered the evidence and circumstances of the case and that the sentence was appropriate. The appeal was dismissed, and the original sentence was upheld.

Orders