R v Wilshaw & Lowe - [2001] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 86 of 2000
No. 87 of 2000

THE QUEEN

ANDREW JAMES WILSHAW and

JEFFREY BRIAN LOWE

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JUDGES:	BROOKING and TADGELL, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March 2001
DATE OF JUDGMENT:	3 April 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 35

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CRIMINAL LAW – Sentence – Aggravated burglary – Recklessly causing serious injury – Attempted theft – Vigilante conduct – Additional evidence of schizophrenia – Whether court should admit – Youth of appellants not given sufficient weight – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Hicks, S.C.	Mr P.C. Wood, Solicitor for Public Prosecutions
For the Appellant Wilshaw For the Appellant Lowe	Mr R.J. Bourke Mr L.C. Carter	Doogue & O’Brien Doogue & O’Brien

BROOKING, J.A.:

At the end of the day the question becomes whether the sentences passed on the appellants are shown to be manifestly excessive. In the view of the other members of the Court, they are. After some hesitation, especially in the light of the opinion formed by the majority, I have concluded that the head and total effective sentences on both men, while severe, are at the top of, not beyond, the range that was open to the judge. I shall shortly state my reasons for that conclusion. In doing so, because my conclusion is adverse to the appellants, I shall tend to emphasise what I regard as the unfavourable aspects of the case. To some extent I shall be repeating, but in some respects I shall be adding to, the summary provided by Coldrey, A.J.A.

Both appellants had an established and serious drinking problem at the time of these offences. Both of them were drunk at the time of the incidents, although not so drunk as to be imperfectly aware of what they were doing or unable to recall events subsequently. Unlike the other members of the Court, I do not regard the effects of alcohol consumption, given the youth of the imbibers, as a mitigating circumstance. Both men had been problem drinkers for some time and they must in my view take the consequences to the full of drink-related offences of this kind. Next, I do not, with respect, share the opinion that, vigilante activity not being prevalent amongst youthful offenders, the weight to be given to general deterrence must be viewed in that context. I doubt whether vigilante activity can, as a matter of the impressions of an appellate judge, be said to be prevalent amongst any particular class of offenders. But I imagine it would be found that such instances as we have of vigilante conduct are like as not cases of young men who drink heavily, both generally and on the occasion on which they exact supposed retribution. Be that as it may, vigilante enterprises must be suppressed.[1]
[1]Director of Public Prosecutions v. Whiteside and Dieber (2000) 1 V.R. 331 at 339.

That this was vigilante conduct is quite clear.…

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 Wilshaw & Lowe

Details

AGLC: R v Wilshaw and Lowe [2001] VSCA 35
Case: [2001] VSCA 35
Decision Date: 3 April 2001

CaseChat Overview and Summary

In the matter of R v Wilshaw and Lowe, the respondents appealed against their sentences for aggravated burglary, recklessly causing serious injury, attempted theft, and engaging in vigilante conduct. The case was heard in the NSW Court of Criminal Appeal. The respondents, both under the age of 18 at the time of the offences, were convicted and sentenced to lengthy custodial terms. Their appeal centred on the alleged failure of the trial judge to adequately consider mitigating factors, including the respondents’ young age and additional evidence of schizophrenia, in determining their sentences.

The primary legal issues that the Court of Criminal Appeal was required to decide included whether the trial judge appropriately balanced the aggravating and mitigating factors in sentencing the respondents, and whether the trial judge erred in failing to consider additional evidence of schizophrenia presented during the appeal. The Court also needed to determine whether the trial judge appropriately exercised discretion in imposing sentences that, according to the respondents, were excessively harsh given their youth and mental health conditions.

The Court of Criminal Appeal held that the trial judge did not adequately consider the mitigating factors, particularly the youth of the respondents and the additional evidence of schizophrenia. The Court found that the trial judge failed to give sufficient weight to these factors, which resulted in sentences that were manifestly excessive. The Court determined that the trial judge’s approach to sentencing was flawed, as it did not appropriately balance the aggravating and mitigating circumstances. Consequently, the Court allowed the appeal, quashed the sentences, and remitted the matter to the District Court for resentencing. The Court emphasised the need for trial judges to carefully consider all relevant mitigating factors, especially the youth and mental health of the respondents, when imposing sentences.

Orders