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Webster v The Queen

Webster v The Queen

Case [2016] VSCA 329 16 December 2016

Appeal

Sentencing

Breach of Peace

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0036

SHANE WEBSTER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2016
DATE OF REASONS:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 329
JUDGMENT APPEALED FROM:	DPP v Webster (Unreported, County Court of Victoria, Judge Pilgrim, 17 November 2015)

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CRIMINAL LAW – Appeal against sentence – Sentence of seven years’ imprisonment with a non-parole period of five years and six months for one count of intentionally causing serious injury – Whether manifestly excessive – Appellant struck 70 year old victim to the head forcefully with a golf club – Physical injuries severe but not catastrophic – Victim profoundly affected emotionally by the assault – Appellant, aged 38, had numerous prior convictions including for violence – Sentencing judge ‘guarded’ about appellant’s prospects of rehabilitation – Current sentencing practices for intentionally causing serious injury considered – Appeal dismissed – The Queen v Kilic [2016] HCA 48.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Edney	Emma Turnbull Lawyers
For the Respondent	Ms D Piekusis	Mr John Cain, Solicitor for Public Prosecutions

REDLICH JA
BEALE AJA:

On 4 May 2015, the appellant (now aged 38), pleaded guilty to intentionally causing serious injury, which carries a maximum penalty of 20 years’ imprisonment. On 17 November 2015, the appellant was sentenced to seven years’ imprisonment with a non-parole period of five years and six months. But for his plea of guilty, the sentencing judge indicated[1] that he would have imposed a sentence of nine years’ imprisonment with a non-parole period of seven years. A declaration of 331 days of pre-sentence detention was also made.
[1]Pursuant to s 6AAA of the Sentencing Act 1991.

Grounds of Appeal

On 20 June 2016, Weinberg AP granted leave to appeal on the following ground:[2]

The sentence imposed on the charge of intentionally cause serious injury:
i.     was manifestly excessive; and
ii.    outside the range of the sentence reasonably open in the circumstances of this offence and this offender; and
iii.   resulted in a total effective sentence and non-parole period that was manifestly excessive.

[2]On the leave application, this was proposed Ground 3. The appellant was refused leave in relation to proposed Grounds 1 and 2. Initially the appellant filed a Notice of Election in relation to these grounds. On 29 August 2016, the appellant filed a Notice of Abandonment in relation to proposed Grounds 1 and 2. Consequently, nothing more need be said about them.

Circumstances of the Offending

On 21 September 2013 at around 11am, the appellant walked on to the Mooroopna Golf Course looking for his lost dog. The victim, Brian McGee (aged 70), was on the 16^th fairway playing golf with his brother Lionel and another man. The appellant approached the victim’s brother in an aggressive and confronting manner and accused him of staring at him.

The appellant and the victim began arguing. The victim told the appellant they…

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 Webster v The Queen

Details

AGLC: Webster v The Queen [2016] VSCA 329
Case: [2016] VSCA 329
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the High Court of Australia, the case of Webster v The Queen concerned an appeal against the sentence imposed on the appellant, Webster, for intentionally causing serious injury to a 70-year-old victim. The appellant, aged 38 at the time of the offence, attacked the victim with a golf club, resulting in severe physical injuries that were not deemed catastrophic but had a profound emotional impact on the victim. Webster had a history of violent offences and was deemed to have limited prospects for rehabilitation by the sentencing judge. The appellant's sentence was seven years' imprisonment with a non-parole period of five years and six months, which he argued was manifestly excessive.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, given the nature of the offence and the appellant's history. The court had to consider the severity of the assault, the physical and emotional injuries sustained by the victim, the appellant's criminal history, and his potential for rehabilitation. The appellant contended that the sentence was disproportionate to the offence, while the Crown argued that the sentence reflected the seriousness of the crime and the need to deter similar offences.

The court examined the principles of sentencing for intentionally causing serious injury, considering recent judicial decisions and current sentencing practices. It concluded that the sentence was within the range of appropriate penalties for such offences, taking into account the appellant's history of violence and the emotional impact on the victim. The court found that the sentencing judge had appropriately balanced the need for punishment, deterrence, and rehabilitation. Therefore, the appeal against the sentence was dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond the dismissal of the appeal.

Orders