CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury in circumstances of gross violence – Sentence of 9 years’ imprisonment – Non-parole period 6 years and 6 months – Whether sentencing judge erred in considering whether conduct of defence contributed to undue delay – Extent to which accused had control over length of delay necessarily relevant in assessing unfairness to accused – No specific error – Whether sentence manifestly excessive – Unprovoked attack in public – Repeated strikes to head – Unconscious victim – Assault lasting 18 minutes where appellant had ample opportunity to reconsider actions – Victim sustained serious injuries – General deterrence especially relevant – Appeal dismissed.
On 28 April 2022, the appellant pleaded guilty in the County Court to one charge of intentionally causing serious injury in circumstances of gross violence, contrary to s 15A of the Crimes Act 1958. He was sentenced on 30 August 2022 to 9 years’ imprisonment with a non-parole period of 6 years and 6 months. The maximum penalty for the offence is 20 years’ imprisonment.
The appellant appeals against the sentence on two grounds. The first is that the judge erred by finding that the mitigatory effect of delay in resolving the matter was reduced because of the way in which the appellant conducted the proceeding. The second is that the total effective sentence and non-parole period are manifestly excessive.
For the reasons that follow, the appeal must be dismissed.
Circumstances of the offending
In the early morning hours of 10 June 2019, the appellant encountered Zeljko Danilovic on the footpath near a Salvation Army store. Both men were in their forties. Mr Danilovic walked away and the appellant followed him, walking closely behind him and grabbing at his belongings. He started to assault Mr Danilovic by kicking and punching him and slapping him in the face, before throwing one of his bags at his head. The assault continued as described below. Closed circuit television from a nearby store captured the whole assault, which lasted for about 18 minutes.
Mr Danilovic continued to walk away while the appellant followed him. In a forecourt adjacent to the footpath, the appellant pushed Mr Danilovic from behind, causing him to stumble forward and fall onto the concrete. The appellant continued assaulting him as he sat on the ground, hitting…
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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AGLC
Weatherburn v The King [2023] VSCA 283
Case
[2023] VSCA 283
Decision Date
CaseChat Overview and Summary
The appellant, Weatherburn, was convicted for the intentional infliction of serious injury during a violent public altercation. The case was heard in the Court of Appeal, where the primary focus was on the appropriateness of the sentence imposed by the trial judge. The appellant was sentenced to nine years in prison, with a non-parole period of six years and six months. The appeal centred on whether the trial judge had erred in considering the contribution of the defence's conduct to the delay in the proceedings and whether the sentence was manifestly excessive.
The court was tasked with determining if the trial judge had erred in assessing the unfairness to the appellant due to the delay in the proceedings, considering the appellant's control over the delay. Additionally, the court had to decide if the sentence was excessive, given the nature of the crime, which involved an unprovoked attack in a public place, repeated strikes to the victim's head, and the victim being rendered unconscious for 18 minutes. The victim sustained serious injuries, and the appellant had multiple opportunities to reconsider his actions during the assault.
The Court of Appeal found that the trial judge did not make any specific error in considering the delay or the extent to which the appellant had control over it. The court also concluded that the sentence was not manifestly excessive. The unprovoked nature of the attack, the repeated strikes to the victim's head, and the duration of the assault were all relevant factors in the sentencing decision. The court highlighted that general deterrence was particularly relevant in this case. Consequently, the appeal was dismissed, and the original sentence was upheld.
The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge. The court found no grounds for reducing the sentence or altering the non-parole period. The considerations of fairness, control over delay, and the gravity of the crime were all weighed, leading to the conclusion that the original sentence was appropriate.