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Stewart v The Queen

Stewart v The Queen

Case [2015] VSCA 368 22 December 2015

Appeal

Sentencing

Recklessly Cause Serious Injury

Protection of the Community

Specific Deterrence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0093

NORMAN STEWART	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2015
DATE OF JUDGMENT:	22 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 368
JUDGMENT APPEALED FROM:	[2015] VCC 476 (Judge Lacava)

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CRIMINAL LAW – Appeal – Sentence – Robbery, affray, recklessly cause serious injury – Sentence 7y, non-parole period 4y 6m – Whether manifestly excessive – Traumatic and deprived background – Relevance of disadvantage to sentencing – Whether personal circumstances sufficiently reflected in sentence imposed – Serious violent offending – Multiple prior convictions for serious violence – Protection of the community – Specific deterrence – Sentence within range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Gurvich	Emma Turnbull Lawyers
For the Respondent	Mr D Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P:

Summary

The appellant was involved in two separate incidents of very serious violent offending. On the first occasion, he and three associates punched and beat their victim before stealing his pants, jacket, wallet and mobile phone. He pleaded guilty to one charge of robbery, and was sentenced to five years’ imprisonment.

In the second incident, some 10 days later and with different co-offenders, the appellant inflicted serious injury on a different victim, in the early hours of the morning. The appellant pleaded guilty to one charge of affray and one charge of recklessly causing serious injury. He was sentenced to one year’s imprisonment on the charge of affray, and four years’ imprisonment on the serious injury charge.

Orders for cumulation were made, as set out in the table below, resulting in a total effective sentence of seven years’ imprisonment. A non-parole period of four years and six months was fixed.

Charge Offence Maximum Sentence Cumulation

1. Indictment E13066293 Robbery 15y 5y Base

1. Indictment C1409948 Affray 5y 1y -

2. Indictment C1409948 Recklessly causing serious injury 15y 4y 2y

Total Effective Sentence:    7y

Non-Parole Period:      4y 6m

Section 6AAA:           9y, non-parole period 6y

The appellant was granted leave to appeal on the single ground that the sentence for robbery, the total effective sentence and the non-parole period were manifestly excessive. On the plea, he had relied in mitigation on his ‘extremely low’ level of cognitive function, which was said to be relevant to his moral culpability. The judge rejected that submission, as it was well open to his Honour to do. On the appeal, the manifest excess submission emphasised a different aspect of the appellant’s circumstances, namely, his disadvantaged background.

Circumstances of deprivation and disadvantage are always relevant to sentencing. But their significance necessarily decreases in a case such as this, involving serious violent offending by a repeat offender. Other sentencing considerations, such as community protection and specific deterrence, loom large.

In my respectful opinion, it was reasonably open to the judge to impose this sentence on this offender, taking proper account of his difficult…

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 Stewart v The Queen

Details

AGLC: Norman Stewart v The Queen [2015] VSCA 368
Case: [2015] VSCA 368
Decision Date: 22 December 2015

CaseChat Overview and Summary

The appellant, Stewart, was convicted of robbery, affray, and recklessly causing serious injury. He was sentenced to seven years' imprisonment with a non-parole period of four years and six months. Stewart appealed the sentence, arguing it was manifestly excessive. The appeal raised issues about the relevance of the appellant's traumatic and deprived background in sentencing and whether these personal circumstances were sufficiently reflected in the sentence imposed. The appeal also questioned whether the sentence was within the appropriate range, considering the nature of the serious violent offending and the appellant's multiple prior convictions for serious violence. Additionally, the appeal addressed the purposes of sentencing, including the protection of the community and specific deterrence.

The court considered the appellant's background and its relevance to sentencing. It acknowledged the appellant's deprived upbringing but found that the gravity of the current offences and the appellant's history of serious violence necessitated a significant custodial sentence. The court emphasised the importance of the protection of the community and specific deterrence, highlighting the appellant's prior convictions and the potential risk he posed if not adequately detained. The court concluded that the sentence imposed was within the appropriate range for the offences committed.

The appeal was dismissed. The court found that the sentence was neither manifestly excessive nor inadequately reflective of the appellant's personal circumstances. The sentence appropriately balanced the need to protect the community and deter the appellant from future offending with consideration of his background. The court was satisfied that the sentence imposed achieved the appropriate purposes of sentencing in this case.

Orders