Spence v The Queen - [2013] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0071
DYLAN JAMES SPENCE	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 July 2013
DATE OF JUDGMENT	30 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 197
JUDGMENT APPEALED FROM	DPP v Spence (Unreported, County Court of Victoria, Judge Pullen, 8 April 2011)

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury and related charges – Applicant sentenced to a total effective sentence of five years and nine months’ imprisonment with a non-parole period of two years and 10 months – Fresh evidence – Medical evidence of worsening condition of a degree not foreseen at time of sentencing – Appeal allowed – Non-parole period reduced to two years and four months – R v Nguyen [2006] VSCA 184 applied.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Grigor Lawyers
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of five years and nine months’ imprisonment, with a non-parole period of two years and 10 months, imposed on the applicant on 8 April 2011 on pleading guilty to one charge of intentionally causing serious injury, one charge of common assault, one charge of recklessly causing serious injury and one charge of affray.

There is only one proposed ground of appeal: that fresh evidence establishes that the applicant’s medical condition is considerably worse than was anticipated at the time of sentencing; consequently, that prison is and will continue to be even more burdensome for the applicant than the sentencing judge contemplated it might be; and that there is now a significant risk that prison will have an adverse effect on the applicant’s health. On that basis, it is contended that the sentence imposed has resulted in substantial miscarriage of justice.

The Crown opposes the application. It contends that evidence of medical condition which the applicant seeks to adduce in support of the application does not meet the test of fresh evidence essayed by Redlich J A in R v Nguyen[1] and ought not be received.
[1][2006] VSCA 184, [36].

The facts of the offending

The facts of the offending, as found by the sentencing judge, were as follows:

1) Charge 1 related to a violent attack on Steve Gioskos at the Lounge Bar in Melbourne. The applicant, a co-accused and three other friends began drinking alcohol at approximately 2.00 pm on 16 December 2009. They continued drinking alcohol throughout the afternoon at various locations before arriving at the Lounge Bar at between 1.00 am and 2.00 am on 17 December 2009.

2) At much the same time Mr Gioskos arrived at the Lounge Bar in the company of a lady, Meaghan King.

3) At some time between 2.30 am and 3.00 am, the applicant approached Ms King and engaged her in conversation while Mr…

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 Spence v The Queen

Details

AGLC: Spence v The Queen [2013] VSCA 197
Case: [2013] VSCA 197
Decision Date: 30 July 2013

CaseChat Overview and Summary

The case of Spence v The Queen involved the appellant, Spence, who was appealing against his sentence for intentionally causing serious injury and related charges. The appeal was heard by the Victorian Court of Appeal. Spence had been sentenced to a total effective sentence of five years and nine months’ imprisonment with a non-parole period of two years and 10 months. The primary legal issue before the court was whether the fresh medical evidence, which showed that Spence's condition had worsened to a degree not foreseen at the time of sentencing, warranted a reduction in the non-parole period. The court considered whether the principles set out in R v Nguyen [2006] VSCA 184 applied to the circumstances of this case.

The Court of Appeal found that the fresh evidence did indeed warrant reconsideration of the non-parole period. The court held that the significant deterioration in Spence's medical condition constituted an exceptional circumstance warranting a reduction in the non-parole period. The court applied the principles from R v Nguyen, which allow for a reduction in the non-parole period when there are exceptional circumstances, such as a substantial and unforeseen change in the offender's condition. The appeal was therefore allowed, and the non-parole period was reduced to two years and four months.

Given the exceptional circumstances, the Court of Appeal found that the original sentence imposed was manifestly inadequate. By reducing the non-parole period, the court aimed to ensure that the sentence remained just and appropriate in light of Spence's deteriorating medical condition. The final orders of the court included a reduction of the non-parole period to two years and four months, with the remainder of the sentence to be served subject to parole eligibility.

Orders