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Vincec v The Queen

Vincec v The Queen

Case [2018] VSCA 18 8 February 2018

Appeal

Sentencing

Unlawful and Dangerous Act Manslaughter

Victim Impact Statements

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0236

RICHARD VINCEC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2018
DATE OF JUDGMENT:	8 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 18
JUDGMENT APPEALED FROM:	R v Vincec [2017] VSC 602 (Riordan J)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Appeal – Sentence – Unlawful and dangerous act manslaughter – Applicant sentenced to eight years’ imprisonment with non-parole period of five years – Confrontation in busy city street at night – Death caused by single punch to head – Victim fell to ground and suffered fractured skull and brain damage – Whether reasonably arguable that sentence manifestly excessive – Whether judge unduly influenced by Victim Impact Statements and high regard in which victim held – Whether judge overstated objective gravity of offence – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Richter QC	Paul Vale Criminal Law
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

On 2 October 2017, the applicant pleaded guilty, in the Trial Division, to a charge of manslaughter. The charge arose out of events that occurred on 6 May 2017, resulting in the death of a young man, Jaiden Walker.

On 19 October 2017, the applicant was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

1
Manslaughter

Common Law
20 years’ imprisonment 8 years’ imprisonment

Total Effective Sentence: 8 years’ imprisonment

Non-Parole Period: 5 years

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 24 days

6AAA Statement 11 years’ imprisonment with a non-parole period of 8 years

The applicant now seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009. He relies upon a single ground of appeal:

The sentence of 8 years with a non-parole period of 5 years is manifestly excessive.

In his Written Case the applicant provided particulars of this proposed ground of appeal. He claimed that the sentencing judge had:

a.Placed too little weight on the plea of guilty in sentencing of the applicant;
b.Placed excessive weight on the campaign for more severe sentences for the offence of manslaughter involving alcohol and drug consumption and the need for general deterrence;
c.Placed excessive weight on the applicant’s occasional use of drugs in the period during which he was employed and his life had stabilised. In the circumstances where the applicant had not had criminal charges since 2010 and had generally demonstrated a significant change in his life;
d.Placed excessive weight on the nature of the offence being a circumstance where one punch has been delivered in the context of consumption of alcohol and drugs and the need for general deterrence;
e.His Honour gave inadequate weight to the obvious fact that this offence fell into the less serious…

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 Vincec v The Queen

Details

AGLC: Vincec v The Queen [2018] VSCA 18
Case: [2018] VSCA 18
Decision Date: 8 February 2018

CaseChat Overview and Summary

The applicant in this case, Vincec, appealed against his sentence for unlawful and dangerous act manslaughter. The incident occurred in a busy city street at night, resulting in the death of the victim, who suffered a fractured skull and brain damage after being struck by a single punch to the head. The trial judge sentenced Vincec to eight years in prison with a non-parole period of five years. The legal issues before the court were whether the sentence was manifestly excessive, whether the judge was unduly influenced by Victim Impact Statements and the esteem in which the victim was held, and whether the judge overstated the objective gravity of the offence.

The court held that the sentence was not manifestly excessive and that the judge did not err in their assessment of the objective gravity of the offence. The court found that the judge properly considered the circumstances of the case, including the nature of the act and the resulting harm, in determining the appropriate sentence. The court also held that the judge was not unduly influenced by Victim Impact Statements or the esteem in which the victim was held, as the judge's sentencing remarks demonstrated a balanced approach to all relevant factors. The court concluded that the sentence was appropriate and did not manifest any error of law or principle.

In light of the above, the court refused leave to appeal. The court held that the sentence imposed was not manifestly excessive and that the judge did not err in their assessment of the objective gravity of the offence or in considering the circumstances of the case. The court further held that the judge's sentencing remarks demonstrated a balanced approach to all relevant factors, including the Victim Impact Statements and the esteem in which the victim was held. The court found no error of law or principle in the sentence imposed and therefore refused leave to appeal.

Orders