The Queen v Tasevski (Unreported, County Court of Victoria, Judge Tinney, 11 October 2013)
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CRIMINAL LAW – Sentencing – One charge of intentionally cause injury and one charge of intentionally cause serious injury – Whether total effective sentence of 9 years with a non-parole period of 7 years manifestly excessive – Unprovoked knife attacks in public place – Applicant on bail in relation to the offence of intentionally cause injury at time of committing offence of intentionally cause serious injury – Whether judge ‘inflated the overall criminality to inappropriate level’ – Application granted - Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms J M Fallar
Slades & Parsons
For the Crown
Mr D A Trapnell QC
Mr C Hyland, Solicitor for Public Prosecutions
NETTLE JA:
In this matter, I have had the advantage of reading in draft the reasons for judgment of Tate JA and I gratefully adopt her Honour’s statement of the facts and arguments.
I have also paid close attention to her Honour’s consideration of comparable and comparative cases and I recognise the force of her conclusion that, judged by reference to some of the other cases to which she refers, the sentence of seven and a half years’ imprisonment imposed on the charge of intentionally causing serious injury (charge 2) is stern and, statistically speaking, remarkable. Ultimately, however, I am not persuaded that it is manifestly excessive.
The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment and, as has been observed on other occasions, it may thus be expected that the worst instances of the offence will attract sentences of 15 years’ imprisonment and upwards. The offence of causing serious injury in this case was not among the worst instances of the offence but, as the sentencing judge rightly found, it was serious. Hence, the sentence which his Honour imposed was only half of 15 years.
Certainly, as Tate JA observes, there are other cases in which similar attacks have netted lesser sentences. High authority dictates that we must regard them as relevant comparators. But the complexities of sentencing are not susceptible to precise mathematical comparisons. They necessitate consideration not only of the nature and gravity of an offence and the injury which it may have inflicted but also of the nature and circumstances of the offender, his prospects of rehabilitation and the needs of community protection. Potentially, therefore, the variables are unlimited and, to a large extent, of a nature incapable of any more precise measurement than informed subjective assessment.
Therein lies the essence of the sentencing discretion and why it is that there is
no one necessarily correct sentence for a given offence or offender; only a range of 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.
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Details
AGLC
Tasevski v The Queen [2014] VSCA 135
Case
[2014] VSCA 135
Decision Date
CaseChat Overview and Summary
The applicant was convicted and sentenced for one count of intentionally causing injury and one count of intentionally causing serious injury. He was sentenced to a total effective sentence of nine years, with a non-parole period of seven years. The applicant sought leave to appeal against his sentence, claiming it was manifestly excessive. The Crown opposed the application. The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge had inflated the overall criminality of the applicant’s offending to an inappropriate level. The court found that the applicant’s offending, which involved two unprovoked knife attacks in a public place, was serious. The court also found that the sentence was not manifestly excessive and dismissed the application. The court further found that the sentencing judge had not inflated the overall criminality of the applicant’s offending to an inappropriate level. The application for leave to appeal was dismissed.