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Wallace v The Queen

Wallace v The Queen

Case [2012] VSCA 114 8 June 2012

Appeal

Sentencing

Intentially cause serious injury

Protection of the community

Specific deterrence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0396

DALE WALLACE
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	MAXWELL ACJ and BUCHANAN JA
WHERE HELD	MELBOURNE
DATES OF HEARING	27 April 2012
DATE OF JUDGMENT	8 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 114
JUDGMENT APPEALED FROM	DPP (Vic) v Wallace (Unreported, County Court of Victoria, Judge Parsons, 27 October 2010)

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury, criminal damage – Victim very seriously injured – Prior convictions for violence – TES 6 y 6 m, NPP 4 y 6m – Whether non-parole period manifestly excessive – Whether accorded with judge’s stated intention – No ‘usual’ non-parole period – Importance of specific deterrence and protection of the community – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P A S Skehan	Victorian Aboriginal Legal Service
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ

BUCHANAN JA:

Summary

This sentence appeal concerns the fixing of a non-parole period. As will appear, the total effective sentence imposed on the appellant was 6 years and 6 months’ imprisonment. The non-parole period was 4 years and 6 months’ imprisonment, representing 69 per cent of the head sentence. The ground of appeal is that the non-parole period failed to give effect to the judge’s stated intention to order ‘a much longer than usual’ period of parole, or was manifestly excessive, or breached the principle of totality.

The principles governing appellate review of a non-parole period are clear, as follows:

1. The non-parole period is the minimum term which justice requires be served.[1]
[1]Power v The Queen (1974) 131 CLR 623, 629; Bugmy v The Queen (1990) 169 CLR 525, 538-9 ; I R J v The Queen [2011] VSCA 376, [52]; Singh v The Queen [2011] VSCA 333, [27].

2. There is no ‘usual’ non-parole period.[2]
[2]R v Tran [2006] VSCA 222, [27]–[28]; R v Alparslan (2007) 170 A Crim R 205, 208-9; R v Ng [2009] VSCA 218, [28]; Green v The Queen [2011] VSCA 236, [17]; Romero v The Queen (2011) 206 A Crim R 519, 526–7 [25]–[26].

3. The question to be determined is whether, in all of the circumstances of the case and of the offender, it was reasonably open to the sentencing judge to fix the non-parole period which the judge fixed.[3]

4. Exceptionally, the Court may be persuaded that the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion re-opened.[4]

[3]

[4]R v Hill [2004] VSCA 116, [29].

For reasons which follow, we have concluded that the non-parole period of 4 years and 6 months accorded with the judge’s stated intention and was not manifestly excessive. The appeal must therefore be dismissed.

Background circumstances[5]

[5]Paragraphs 4–12 are taken from the Registrar’s Neutral Summary, which was agreed by…

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 Wallace v The Queen

Details

AGLC: Wallace v The Queen [2012] VSCA 114
Case: [2012] VSCA 114
Decision Date: 8 June 2012

CaseChat Overview and Summary

In the case of Wallace v The Queen, the appellant, Mr. Wallace, appealed against the sentence imposed by the trial judge, arguing that the non-parole period was manifestly excessive. Mr. Wallace had been found guilty of intentionally causing serious injury and criminal damage to another person. The victim in the case sustained very serious injuries as a result of Mr. Wallace's actions. The trial judge imposed a total effective sentence of 6 years and 6 months, with a non-parole period of 4 years and 6 months. This appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the non-parole period of 4 years and 6 months was manifestly excessive in light of the totality of the circumstances. The court was also required to consider whether the sentence accorded with the trial judge's stated intention and whether there was a 'usual' non-parole period for the offence. Furthermore, the court needed to weigh the importance of specific deterrence and protection of the community in determining the appropriate sentence.

The court found that the non-parole period was not manifestly excessive and was in accordance with the trial judge's stated intention. The court recognised that there was no 'usual' non-parole period for the offence of intentionally causing serious injury and criminal damage. Instead, the court considered the totality of the circumstances, including the severity of the offence, the need for specific deterrence and protection of the community, and the appellant's prior convictions for violence. The court held that the sentence imposed was appropriate in the circumstances and dismissed the appeal.

The final orders of the court were that the appeal was dismissed, and the sentence imposed by the trial judge was upheld. The appellant's total effective sentence of 6 years and 6 months, with a non-parole period of 4 years and 6 months, remained in place. The court's decision highlights the importance of considering specific deterrence and the protection of the community when determining an appropriate sentence for serious criminal offences.

Orders