TS v The Queen - [2014] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0202

TS[1]
	Applicant
v
THE QUEEN
	Respondent

[1]To ensure that there is no possibility of identification of the applicant, the judgment has been anonymised by the adoption of a pseudonym.

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JUDGES	WEINBERG and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 February 2014
DATE OF JUDGMENT	21 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 24	1^st Revision: 27 February 2014, [43]
JUDGMENT APPEALED FROM	DPP v [TS] (Unreported, County Court of Victoria, Judge Ryan, 31 May 2013)

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CRIMINAL LAW – Sentence – Guilty plea – Aggravated burglary, recklessly causing injury and theft – Applicant sentenced to three years and six months’ imprisonment with non-parole period of two years – Applicant sentenced on basis that he suffered drug-induced psychosis – Verdins substantially rejected by sentencing judge – Fresh evidence – Applicant diagnosed with long-standing schizophrenia – Moral culpability clearly reduced – Verdins principles applicable – Leave granted – Appeal allowed – Sentence reduced to two years and six months’ imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Melasecca Kelly & Zayler
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

The applicant (now aged 39), pleaded guilty in the County Court at Melbourne to aggravated burglary, recklessly causing injury and theft. He was sentenced on 31 May 2013 as follows::

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)] 25 years [Crimes Act 1958 (Vic) s 77(2)] 3 years Base

2 Causing Injury Recklessly [Crimes Act 1958 (Vic) s 18] 5 years[Crimes Act 1958 (Vic) s 18] 12 months 6 months

3 Theft [Crimes Act 1958 (Vic) s 74(1)] 10 years [Crimes Act 1958 (Vic) s 74(1)] 1 month N/A

Total Effective Sentence: 3 years 6 months

Non-Parole Period: 2 years

Pre-sentence Detention Declared: 10 days

6AAA Statement: 5 years’ imprisonment, 3 years non-parole period

Other orders: Forensic Sample Order

The applicant now seeks leave to appeal upon the following ground:

1. That in light of fresh evidence relating to the applicant’s mental health – the sentencing discretion should be re-opened.

Circumstances of the offending

The applicant and the complainant were married. Shortly before the relevant offending, they had separated and were living apart. In the week before the commission of these offences the applicant visited their two children at the complainant’s home. He was verbally abusive to the complainant. As a result she changed the locks on the house.

On 1 April 2012 they attended the wedding of a mutual friend together. The complainant returned home from the wedding with BM, a friend of the applicant’s.

The applicant suspected that the complainant and BM were having an intimate relationship. At about 2.30 am the applicant broke into the complainant’s home through a rear window (charge 1 – aggravated burglary) and found…

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 TS v The Queen

Details

AGLC: T S v The Queen [2014] VSCA 24
Case: [2014] VSCA 24
Decision Date: 21 February 2014

CaseChat Overview and Summary

In the case of TS v The Queen, TS appealed against his sentence imposed by the Supreme Court of South Australia, following his guilty plea to charges of aggravated burglary, recklessly causing injury, and theft. The trial judge had sentenced TS to three years and six months' imprisonment with a non-parole period of two years, taking into account that TS had suffered drug-induced psychosis at the time of the offences. TS argued that the sentencing judge failed to appropriately apply the principles set out in Verdins v The Queen and that new evidence regarding TS's long-standing schizophrenia should have been considered, which would have significantly reduced his moral culpability.

The legal issues before the court involved the proper application of the Verdins principles in the sentencing process, the weight to be given to fresh evidence concerning TS's mental health, and whether the sentence imposed was manifestly inadequate or excessive. The court examined whether the sentencing judge had adequately considered TS's significantly reduced moral culpability due to his diagnosed schizophrenia and whether the sentence imposed was appropriate in light of the evidence presented. The court had to determine if the sentencing judge's rejection of the Verdins principles was an error and if the fresh evidence warranted a reduction in sentence.

The court found that the sentencing judge had not appropriately applied the Verdins principles, which require consideration of the offender's moral culpability when determining an appropriate sentence. The court noted that TS's moral culpability was clearly reduced due to his long-standing schizophrenia, which was not adequately considered by the sentencing judge. As a result, the court held that the sentence imposed was manifestly inadequate. The appeal was allowed, and the sentence was reduced to two years and six months’ imprisonment with a non-parole period of 18 months, reflecting the reduced moral culpability of the applicant.

Orders