West v The Queen; Beyer v The Queen - [2014] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0114

TRAVIS WEST
	Appellant
v
THE QUEEN
	Respondent

S APCR 2013 0154

MICHAEL ANTHONY BEYER
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 February 2014
DATE OF JUDGMENT	13 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 36
JUDGMENT APPEALED FROM	DPP v West and Beyer [2013] VCC 951 (Judge Hampel)

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CRIMINAL LAW – Recklessly causing serious injury – Sentence – Appellant sentenced to six years’ imprisonment with non-parole period of four years – Applicant, who had fewer prior convictions and exhibited remorse, sentenced to five years’ imprisonment with non-parole period of three years – Whether sentences manifestly excessive – Role of joint offenders in commission of offences – Appellant lured victim from victim’s home – Applicant lay in wait and then punched victim to head causing him to fall to ground – Offenders repeatedly kicked victim in back and ribs while victim lay on ground – Brazen and wholly unprovoked, drug and alcohol-fuelled attack – Victim suffered serious injuries including multiple bone fractures and internal bleeding requiring hospitalisation – Leave to Appeal granted – Both appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant West	Mr D A Dann	Leanne Warren & Associates
For the Applicant Beyer	Mr M D Stanton	Robert Stary Lawyers
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree, for the reasons given by Coghlan JA, that each appeal should be dismissed.

COGHLAN JA:

On 28 May 2013, the appellants[1] pleaded guilty to one count of recklessly causing serious injury. On 30 May, they were sentenced as follows:
[1] Although Beyer is only an applicant I will refer to both West and Beyer as appellants for convenience.

TRAVIS JOHN WEST

Charge on Indictment Offence Maximum Sentence Cumulation

1 Recklessly cause serious injury [Crimes Act 1958 (Vic) s 17] 15 years
[Crimes Act 1958 (Vic) s 17] 6 years N/A

Total Effective Sentence: 6 years’ imprisonment

Non-Parole Period: 4 years

Pre-sentence Detention Declared: 270 days

6AAA Statement: 9 years’ imprisonment with non-parole period of 6 years and 6 months

MICHAEL ANTHONY BEYER

Charge on Indictment Offence Maximum Sentence Cumulation

1 Recklessly cause serious injury [Crimes Act 1958 (Vic) s 17] 15 years
[Crimes Act 1958 (Vic) s 17] 5 years N/A

Total Effective Sentence: 5 years’ imprisonment

Non-Parole Period: 3 years

Pre-sentence Detention Declared: 270 days

6AAA Statement: 7 years and 6 months’ imprisonment with non-parole period of 5 years

Other orders:
Forensic sample order.

On 3 September 2013, I granted West leave to appeal on the sole ground that the sentence was manifestly excessive.

By notice dated 16 August 2013, Beyer makes application for leave to appeal on the following two grounds:

1.The learned sentencing judge erred by failing to give adequate affect to the applicant’s plea of guilty.
2.The learned sentencing judge erred by imposing a sentence that was…

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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Details

Case: [2014] VSCA 36
Decision Date: 13 March 2014

CaseChat Overview and Summary

West and Beyer, two appellants, challenged their sentences imposed by the Court of Appeal of the Supreme Court of South Australia, in relation to their involvement in a serious and unprovoked assault. The victim, who had no prior connection to the appellants, was lured from their home and subjected to a brutal, drug and alcohol-influenced attack. The injuries sustained by the victim were severe, including multiple bone fractures and internal bleeding, necessitating hospitalisation. West, who lured the victim, and Beyer, who lay in wait before assaulting the victim, were each sentenced to six years’ imprisonment with a non-parole period of four years. The appellants contended that their sentences were manifestly excessive, particularly in light of their respective roles in the commission of the offences, and the fact that Beyer had fewer prior convictions and demonstrated remorse. The central legal issues for the court to determine were whether the sentences imposed on the appellants were manifestly excessive, and if the roles of the joint offenders should be considered in the sentencing process.

The court examined the appellants' arguments in light of the principles governing sentencing and the gravity of the offences committed. It noted that the attack was premeditated, brazen, and wholly unprovoked, and that the appellants had acted together in causing serious harm to the victim. The court found that the sentences imposed were not manifestly excessive, taking into account the appellants' roles in the commission of the offences, the severity of the victim's injuries, and the need for general deterrence. The court held that the sentences reflected the appropriate balance between punishment, deterrence, and rehabilitation, and that the sentences were proportionate to the gravity of the offences. The court also emphasised the importance of considering the individual circumstances of each offender, but ultimately found that the sentences were not manifestly excessive in this case.

In conclusion, the court dismissed the appeals brought by both West and Beyer, upholding the original sentences imposed by the Court of Appeal. The court found that the sentences were proportionate to the gravity of the offences and took into account the individual circumstances of each offender, including their respective roles in the commission of the offences. The court rejected the appellants' contention that their sentences were manifestly excessive and upheld the original sentences imposed by the Court of Appeal.

Orders