R v Whitlow - [2009] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 847 of 2008

THE QUEEN
	v
LEIGH WHITLOW

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JUDGES:	REDLICH and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2009
DATE OF JUDGMENT:	18 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 103

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CRIMINAL LAW – Sentencing – Causing injury intentionally, causing serious injury intentionally and using a carriage service to menace, harass or cause offence – Youthful offender – No criminal history – Strong family support and employment history – Whether due weight given to guilty plea – Statement under s 6AAA Sentencing Act 1991 of sentence that would have been passed but for guilty plea – Whether reduction of such s 6AAA sentence must apply proportionately to the head sentence and non-parole period imposed – Manifest excess – Significant injuries inflicted – Offences committed in company – Premeditation – 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 D A Dann	Chris McLennan & Co

REDLICH JA:

I have had the benefit of reading the reasons for judgment of Dodds-Streeton JA. For those reasons I agree that the appeal should be dismissed.

DODDS-STREETON JA:

The appellant, Leigh Whitlow, pleaded guilty in the County Court at Melbourne to one count of causing injury intentionally (count 1), one count of causing serious injury intentionally (count 2) and one count of using a carriage service to menace, harass or cause offence (count 3). On 2 October 2008, he was sentenced as follows:
Count1 – six months’ imprisonment;
Count 2 – two years and nine months’ imprisonment; and
Count 3 – one month imprisonment.
Three months of the sentence imposed on count 1 were ordered to be served cumulatively on the sentence imposed in respect of count 2. The entire sentence imposed for count 3 was ordered to be served concurrently with the sentences imposed for counts 1 and 2, resulting in a total effective sentence of three years’ imprisonment. A non-parole period of 15 months was fixed.

As required by s 6AAA of the Sentencing Act 1991, the sentencing judge stated that but for the appellant’s plea of guilty, he would have imposed a sentence of four years’ imprisonment with a non-parole period of two years and nine months.

On 13 March 2009, Buchanan JA granted the appellant leave to appeal.

The appellant appeals on the following grounds:

(1)The learned sentencing judge erred in his treatment of the appellant’s plea of guilty; and
(2)The individual sentences, head sentence and non-parole period are manifestly excessive.

Maximum penalties

The maximum penalties are as follows:

·intentionally causing injury, contrary to s 18 Crimes Act 1958 – ten years’ imprisonment;
·intentionally causing serious injury, contrary to s 16 Crimes Act 1958 – imprisonment for up to 20 years; and
·using a carriage service to menace, harass or cause offence, contrary to s 474.17 Criminal Code Act 1995 (Cth) – imprisonment for up to three years and/or a fine…

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 Whitlow

Details

AGLC: R v Whitlow [2009] VSCA 103
Case: [2009] VSCA 103
Decision Date: 18 May 2009

CaseChat Overview and Summary

The case of R v Whitlow involved the defendant, Whitlow, who appealed against his sentence. Whitlow was found guilty of intentionally causing injury, intentionally causing serious injury, and using a carriage service to menace, harass or cause offence. The case was heard in the Court of Appeal in South Australia. Whitlow's appeal was focused on the sentencing process and whether the trial judge had given due weight to his guilty plea, and whether the reduction in the sentence for the guilty plea should apply proportionately to the head sentence and non-parole period imposed.

The legal issues before the court were whether the trial judge had erred in failing to give due weight to Whitlow's guilty plea, and whether the reduction of the sentence under section 6AAA of the Sentencing Act 1991 must apply proportionately to the head sentence and non-parole period imposed. Whitlow argued that the trial judge had failed to take into account the significant benefits of a guilty plea, including the saving of time and resources, and the avoidance of a trial for the victim. Whitlow also submitted that the reduction of the sentence under section 6AAA should apply proportionately to the head sentence and non-parole period imposed.

The court found that the trial judge had indeed given due weight to Whitlow's guilty plea and that the sentence imposed was not manifestly excessive. The court noted that Whitlow had inflicted significant injuries on the victim, and that the offences were committed in company and with premeditation. The court also found that the reduction of the sentence under section 6AAA did not need to apply proportionately to the head sentence and non-parole period imposed. The appeal was dismissed.

Orders