CRIMINAL LAW – Sentencing – Causing serious injury recklessly – Youthful offender – Rehabilitation – Appellant ‘king hit’ victim in street whilst intoxicated – General deterrence – Sentence of three years’ imprisonment with non-parole period of 18 months not manifestly excessive.
---
APPEARANCES:
Counsel
Solicitors
For the Crown
Mr S M Cooper
Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant
Mr M D Stanton
Victoria Legal Aid
MAXWELL P:
I will invite Kellam JA to deliver the first judgment.
KELLAM JA:
On 10 April 2008 at the County Court at Geelong the appellant pleaded guilty to one count of recklessly causing serious injury to Chad Nolan. On 14 April 2008 he was sentenced to three years’ imprisonment and a non-parole period of 18 months’ imprisonment was fixed.
On 7 August 2008 the appellant was granted leave to appeal by a single judge of this Court.
The factual background
In the early hours of Saturday 21 April 2007 the appellant and a group of his friends attended at the Eureka Hotel in Little Malop Street Geelong. Chad Nolan also attended that hotel. However at approximately 4.20 am Chad Nolan left the venue in company with a number of young women and one Cameron Brereton. Outside the hotel friendly banter concerning Chad Nolan’s stature and his clothing took place. The evidence is that he is a slightly built man who was wearing a green t-shirt that evening. Those facts led to others referring to him as a ‘leprechaun’. While this good natured banter was going on, Brereton returned back into the hotel where the appellant was seated at a bar with his girlfriend, Jennifer Kuster. Brereton appeared to Jennifer Kuster to be angry and aggressive. The appellant, Jennifer Kuster and Brereton went outside the hotel. At that time the friendly banter between Chad Nolan and the others was continuing. Brereton then walked towards Nolan. The appellant later told police that upon Brereton saying he intended to hit Nolan, he (the appellant) followed Brereton ‘just to make sure everything was alright’. Brereton and the appellant walked towards Mr Nolan. Brereton then threw a punch at Nolan who was taken aback and stepped some metres backwards. Street surveillance video recorded the attack. The video demonstrates that after Mr Nolan
stepped back the appellant stepped forward and with apparent considerable force punched Mr Nolan in the face. Upon this occurring Mr Nolan fell instantly to the ground. A number of witnesses heard a thud and thereafter Mr Nolan appeared to them to be unconscious. The appellant then walked away. Brereton, however, remained, and continued to punch the prostrate body of Mr Nolan. In consequence of these events, Mr Nolan suffered a fractured skull, intracranial haemorrhage, a…
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 Wyley
Sign in free to access the full text
Details
AGLC
R v Wyley [2009] VSCA 17
Case
[2009] VSCA 17
Decision Date
CaseChat Overview and Summary
The appellant was convicted of assault occasioning actual bodily harm in circumstances of aggravation. The victim was attacked in the street while intoxicated, resulting in serious injuries. The appellant appealed the sentence of three years’ imprisonment with a non-parole period of 18 months, arguing that it was manifestly excessive. The primary judge considered the appellant's youth, intoxication, and prospects for rehabilitation in determining the sentence.
The legal issues before the court involved whether the sentence imposed was manifestly excessive, taking into account the appellant's age, intoxication, and potential for rehabilitation. The court was required to balance the need for general deterrence with the appellant's prospects of rehabilitation and the principles of sentencing for young offenders.
The court found that the sentence was not manifestly excessive. It considered the severity of the offence, the appellant's youth, and the need for general deterrence. The court emphasised that while the appellant's intoxication and prospects for rehabilitation were relevant factors, they did not outweigh the need to send a message that such violent behaviour would not be tolerated. The court also noted that the sentence was proportionate to the offence and took into account the appellant's age and potential for rehabilitation. The appeal was dismissed.
No further orders were made by the court. The appellant's sentence of three years' imprisonment with a non-parole period of 18 months was upheld.