Legal Research
Cases
R v Zander

R v Zander

Case [2009] VSCA 10 5 February 2009

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 245 of 2007

THE QUEEN
	v
PETER ZANDER

---

JUDGES:	NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2009
DATE OF JUDGMENT:	5 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 10

---

CRIMINAL LAW – Sentencing – Causing serious injury intentionally – Possession of a drug of dependence – Where carer subjects disabled victim to three episodes of abuse and injury – Three year total effective sentence with two year non-parole period – Whether non-parole period manifestly excessive – Documented history of major mental illness – R v Verdins (2007) 16 VR 269; [2007] VSCA 102 – Whether contribution of psychiatric illness to the offending was under-estimated – Whether erroneous failure to infer causal role of illness from expert and other evidence – Whether sentencing judge always obliged to consider all Verdins factors – Nature of offending necessitates general deterrence and denunciation – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr S A Moglia	Clarebrough Pica

NETTLE JA:

I invite Dodds-Streeton JA to deliver the first judgment.

DODDS-STREETON JA:

The appellant, Peter Zander, on 20 August 2007, pleaded guilty in the County Court to three counts of causing serious injury intentionally (counts 1, 2 and 3) and one count of possessing a drug of dependence (count 4). On each of counts 1, 2 and 3, he was sentenced to two years’ imprisonment and was ordered to serve six months of each sentence on counts 2 and 3 cumulatively with the base sentence on count 1, resulting in a total effective sentence of three years’ imprisonment, with a minimum non-parole period of two years. He was declared to have served four days pre-sentence detention. On count 4, he was convicted and fined $100.

In relation to counts 2 and 3, the appellant was declared to be a Serious Violent Offender pursuant to ss 6A and 6C of the Sentencing Act 1991.

The maximum sentence for intentionally causing serious injury is, pursuant to s 16 of the Crimes Act 1958, 20 years’ imprisonment.

On 30 May 2008 Kellam JA granted the appellant leave to appeal.

The maximum penalty for possessing a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act1981 is five penalty units.

The appellant appeals on the following grounds:

1.The sentence is manifestly excessive
2.The non-parole period is manifestly excessive

Before us, however, ground 1 was not pressed. Moreover, the appellant did not complain of the sentence on count 4.

Appellant’s antecedents

The appellant, who was born on 10 October 1973 and was aged between 29 and 32 years of age at the time of the offending, was employed by the Department of Human Services as a care worker supervising four severely intellectually disabled, ‘high needs’ young men, including the victim (‘DH’) at a community residential unit. DH was a slightly built,…

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 Zander

Details

AGLC: R v Zander [2009] VSCA 10
Case: [2009] VSCA 10
Decision Date: 5 February 2009

CaseChat Overview and Summary

The case of R v Zander involved the defendant, Zander, who was appealing his sentence for causing serious injury intentionally and possessing a drug of dependence. The original sentencing was conducted in the County Court of Victoria, and the appeal was heard in the Court of Appeal. The appeal court was tasked with determining whether the non-parole period of the sentence was manifestly excessive.

The court needed to decide whether the sentencing judge had properly considered the defendant's history of major mental illness, as well as the factors outlined in the case of R v Verdins. The appeal court needed to assess whether the contribution of the defendant's psychiatric illness to the offending had been under-estimated and whether there was an erroneous failure to infer the causal role of the illness from expert and other evidence. Additionally, the court had to consider whether the sentencing judge was always obliged to consider all factors from Verdins and whether the nature of the offending necessitated general deterrence and denunciation.

The Court of Appeal found that the sentencing judge had considered the defendant's mental illness and the factors from Verdins, but determined that the contribution of the illness to the offending was not as significant as the defendant argued. The court also found that the sentencing judge had not erred in failing to infer the causal role of the illness from the evidence. The court held that the sentencing judge was not always obliged to consider all factors from Verdins and that the nature of the offending did necessitate general deterrence and denunciation. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the Court of Appeal.

Orders