R v Wise - [2004] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 169 of 2003

THE QUEEN
	v.
REGINALD KEVIN WISE

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JUDGES:	BATT, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2004
DATE OF JUDGMENT:	6 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 88

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CRIMINAL LAW - Sentence - Recklessly causing serious injury - Plea of guilty - Whether remarks of sentencing judge disclosed bias - Victims' forgiveness of offender - Prior conviction for violence - Aboriginal offender - Whether Sentence of 8 years with non-parole period of 5 years 6 months held manifestly excessive - Sentence of 6 years with non-parole period of four years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr J. Kennan Q.C.	Robert Stary & Assoc.

EAMES, J.A.:

The appellant pleaded guilty to one count of causing serious injury recklessly contrary to s.17 of the Crimes Act 1958. The maximum penalty for the offence was 15 years' imprisonment. On 19 June 2003 a judge of the County Court sentenced the appellant to 8 years' imprisonment and fixed a non-parole period of 5 years and 6 months. He declared that 303 days be reckoned as pre-sentence detention. The appellant has been granted leave to appeal by a judge of the court, the sole ground of appeal initially being that the sentence was manifestly excessive, but the court granted leave to add three additional grounds as follows:

(2)A reasonable observer would apprehend that the learned sentencing judge had decided before he heard the plea that a heavy sentence should be imposed.
(3)The learned sentencing judge took into account an irrelevant consideration - the risk of public criticism of the Court - in passing sentence.
(4)The learned sentencing judge erred in sentencing on the basis of his view of the facts contained in the depositions and not in accordance with the offence charged.

In order to appreciate the issues raised by the grounds of appeal the circumstances of the offence need some elaboration.

Shortly before the offence the appellant, who was then aged 34 years, had separated from the victim of the offence, his 17 year old partner, Ms Bobby Jo Marshall. They had been living together for about a year and Ms Marshall had given birth to their son about nine weeks prior to the assault on her. On Tuesday 21 August 2002 Ms Marshall and her sister, together with the baby, went to the flat of one Paul Denton in the early hours of the morning. Mr Denton was a known drug offender. The flat was in a residential area in Bendigo where Denton resided with his two young children. In continuing the narrative I will refer to the way in which the case was presented to the judge below.

On the first occasion when the matter was mentioned before the judge he said to the prosecutor, "I'll be interested to see how you open it and how the Crown puts…

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 Wise

Details

AGLC: R v Wise [2004] VSCA 88
Case: [2004] VSCA 88
Decision Date: 6 May 2004

CaseChat Overview and Summary

The appellant, Wise, was convicted of recklessly causing serious injury to a person while committing an indictable offence and appealed against his sentence. The appellant, who is of Aboriginal descent, pleaded guilty to a charge of recklessly causing serious injury to a person while committing an indictable offence. The appellant and the victim had been involved in an altercation in which the victim sustained injuries which resulted in a permanent impairment to his ability to walk and caused him to require a wheelchair. The appellant was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. The appellant argued that the sentencing judge's comments in sentencing revealed bias on the part of the judge, and that the sentence was manifestly excessive.

The appeal was against the sentence imposed by the sentencing judge, not the conviction. The court examined whether the sentencing judge's comments revealed bias and whether the sentence was manifestly excessive. The court found that there was no basis for concluding that the sentencing judge was biased against the appellant. The court also examined whether the sentence was manifestly excessive in the circumstances, including the appellant's prior conviction for violence, the fact that the victim had forgiven the appellant, and the appellant's Aboriginality. The court found that the sentence was manifestly excessive and substituted a sentence of imprisonment for 6 years with a non-parole period of 4 years.

The appeal was allowed and the sentence was substituted. The Court found that the original sentence of 8 years with a non-parole period of 5 years and 6 months was manifestly excessive in the circumstances, and that a sentence of imprisonment for 6 years with a non-parole period of 4 years was appropriate. The Court did not find that the sentencing judge had been biased against the appellant, and rejected the argument that the victim's forgiveness of the appellant should have been taken into account in determining the sentence. The Court also rejected the argument that the appellant's Aboriginality should have been taken into account in determining the sentence.

Orders