Shaw v The Queen - [2012] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0147
CAMERON BARRY SHAW	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	BUCHANAN JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	17 January 2012
DATE OF JUDGMENT:	2 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 78
JUDGMENT APPEALED FROM:	R v Shaw (Unreported, County Court of Victoria at Bendigo, Judge Pilgrim, 14 February 2011)

---

CRIMINAL LAW – Sentencing – Aggravated burglary – Threat to kill – Threat to damage property – Serious violent offender – Guilty plea – Aggravated burglary involving vigilante-type conduct – Victim unknown to offender – Offender suffering from major depressive disorder causally linked to offending – Offender drug and alcohol affected when offended – Failure of sentencing judge to make clear findings as to applicability and effect of principles in R v Verdins [2007] 16 VR 269 – Alleged injury in custody – Resentenced to total effective sentence of three years and three months’ imprisonment – Two year non-parole period.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G M Hughan	Robert Stary & Associates
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions (Ms S Aridas)

BUCHANAN JA:

I agree with Williams AJA.

WILLIAMS AJA:

The appellant was granted leave to appeal against the sentence imposed upon him on 14 February 2011 in the County Court.

He had been sentenced to 4 years’ imprisonment for aggravated burglary (count 1), 18 months’ imprisonment on each of two counts of threatening to kill (counts 2 and 3) and 9 months’ imprisonment for threatening damage to property (count 4). The sentences on counts 2 and 3 were to be concurrent and the sentencing judge directed that 12 months of that sentence were to be served concurrently with the sentence on count one. Six months of the sentence on count 4 were to be served concurrently with the sentence on count 1. There was a total effective sentence of 4 years and 9 months’ imprisonment and a non-parole period of 3 years was fixed.

The judge declared under s 6AAA of the Sentencing Act 1991 that, but for the guilty plea, he would have imposed a sentence of at least 6 years’ imprisonment with a minimum term of 4 years.

The Crimes Act1958 provided for maximum sentences of 25 years’ imprisonment for aggravated burglary, under s 77, 10 years’ imprisonment for threatening to kill, under s 20, and 5 years’ imprisonment for threatening property damage, under s 198.

Co-offender’s sentence

The appellant’s co-offender, Rodney Lonsdale, was sentenced to 2 years’ imprisonment, wholly suspended for 3 years, for his sole offence of aggravated burglary.

Grounds of appeal

The grounds of appeal are stated as follows:

1.The sentencing judge erred in applying the principles relating to concurrency and cumulation of individual sentences.
2.The sentencing discretion miscarried because the sentencing judge failed to make findings and/or give reasons on the question of whether the appellant’s psychiatric condition contributed to the offending.
3.The individual sentences,…

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 Shaw v The Queen

Details

AGLC: Shaw v The Queen [2012] VSCA 78
Case: [2012] VSCA 78
Decision Date: 2 May 2012

CaseChat Overview and Summary

The case of Shaw v The Queen involved the defendant, Shaw, who was convicted of aggravated burglary involving vigilante-type conduct. The defendant pleaded guilty to the offence which occurred when he entered a house under the belief that it was being used to sell drugs, and threatened the occupants with a knife. The High Court of Australia was tasked with assessing the appropriateness of the sentence imposed by the lower courts.

The central legal issue before the court was whether the sentencing judge had erred in failing to adequately consider the principles set out in R v Verdins, particularly in relation to the defendant's major depressive disorder and substance abuse, which were factors contributing to the offence. The court was also required to determine if the sentence was just and appropriate, given the nature of the crime and the defendant's circumstances.

In delivering the judgment, the court held that the sentencing judge did not sufficiently consider the principles from R v Verdins. The court found that the defendant's major depressive disorder and substance abuse were significant mitigating factors that should have been given greater weight. Consequently, the court deemed the original sentence to be manifestly inadequate. The court resentenced Shaw to a total effective sentence of three years and three months’ imprisonment, with a non-parole period of two years.

The court's decision underscores the importance of comprehensively considering all mitigating factors in sentencing, particularly mental health and substance abuse issues. The final orders of the court included the resentencing of the defendant to the specified terms, reflecting a balanced approach to both the severity of the crime and the defendant's personal circumstances.

Orders