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Ross v The Queen

Ross v The Queen

Case [2015] VSCA 302 16 November 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0040

ADAM ALEXIS ROSS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2015
DATE OF JUDGMENT:	16 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 302
JUDGMENT APPEALED FROM:	DPP v Ross (County Court of Victoria, Judge Lacava, 30 January 2015)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Confrontational aggravated burglary – Forced entry with intent to commit assault – Four years’ imprisonment – Expert report – Diagnosis of acquired brain injury – Depression and anxiety – Whether cognitive and psychological factors contributed to offending – Offender consumed bottle of vodka beforehand – Judge attributed offending to intoxication – Whether bound to accept expert opinion – Whether bound to warn counsel that opinion might not be accepted – Whether sentence manifestly excessive – Appeal dismissed – Hogarth v The Queen (2012) 37 VR 658 applied.

CRIMINAL LAW – Evidence – Expert evidence – Procedural fairness – Psychologist’s report – Unchallenged opinion evidence – Whether judge obliged to accept expert opinion – Opinion based on facts reported by offender – Whether independent proof of facts required – Whether judge obliged to inform counsel that proof required – Failure to give notice – No inherent risk of rejection of report – Breach of natural justice – Breach immaterial – Humphries v The Queen [2010] VSCA 161 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Ternovski	Michael J Gleeson & Associates
For the Respondent	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

The appellant (‘AR’)[1] pleaded guilty to charges of aggravated burglary, intentionally causing injury and making a threat to kill, and a related summary charge of unlawful assault. He was sentenced on 30 January 2015 as follows:
[1]The abbreviation is for ease of reference only.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary 25y 4y Base

2 Intentionally cause injury 10y 2y 1y

3 Threat to kill 10y 2y –

Summary
Charge 7 Unlawful assault 3m 1m –

Total Effective Sentence: 5y

Non-Parole Period: 3y

6AAA Statement: 7y; NPP 5y

The offending took place in the early hours of Monday 22 September 2014.[2] The previous evening, AR had consumed a 700ml bottle of vodka, used six Imovane tablets and smoked a gram of cannabis at his residence.
[2]This description of the circumstances is drawn from the Registrar’s Neutral Summary.

At approximately midnight, AR walked to the house of a person he knew (‘K’) and told her that he was going to do a ‘run through’ of a house. AR offered no other specific details.

At approximately 1:00 am, AR went to an address nearby. Having observed no lights or noise coming from within the house, he unsuccessfully attempted to open a locked front security door. AR picked up a tyre lever on the front patio and used it to pop the security door lock…

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 Ross v The Queen

Details

AGLC: Ross v The Queen [2015] VSCA 302
Case: [2015] VSCA 302
Decision Date: 16 November 2015

CaseChat Overview and Summary

In the matter of Ross versus The Queen, the appellant, Ross, was convicted of aggravated burglary and was sentenced to four years’ imprisonment. The dispute centred on the sentence imposed by the trial judge, with Ross contending that the sentence was manifestly excessive and that the trial judge failed to properly consider mitigating factors such as his acquired brain injury and psychological conditions. The case was heard by the Court of Appeal.

The primary legal issues in the appeal involved whether the trial judge was bound to accept the expert opinion regarding Ross's acquired brain injury and depression, and whether the judge was required to warn counsel that the opinion might not be accepted. Additionally, the court had to determine whether the sentence was manifestly excessive, given the mitigating circumstances. The appeal also questioned whether the trial judge breached natural justice by not independently verifying the facts upon which the psychologist's report was based.

The Court of Appeal held that the trial judge was not obliged to accept the expert opinion without independent verification of the facts. However, this did not constitute a breach of natural justice as there was no inherent risk of rejection of the report. The court found that the judge was not bound to accept the expert opinion, and it was not required to warn counsel that the opinion might be rejected. Furthermore, the sentence was deemed not manifestly excessive, considering all the circumstances of the case, including Ross’s intoxication at the time of the offence. The appeal was dismissed, applying the principles established in Hogarth v The Queen and Humphries v The Queen.

The Court of Appeal confirmed the original sentence of four years’ imprisonment. The appeal was dismissed, and the conviction and sentence were upheld.

Orders