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Wheldon v The Queen

Wheldon v The Queen

Case [2011] VSCA 83 18 February 2011

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0359

STEPHEN CRAIG WHELDON
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, NEAVE and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2011
DATE OF JUDGMENT:	18 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 83
JUDGMENT APPEALED FROM	R v Wheldon (Unreported, County Court of Victoria, Judge Nicholson, 22 September 2010)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one count of recklessly causing serious injury – While on remand for that offence appellant spent 30 days serving sentence for unrelated offending – Whether sentencing judge should have taken into account those 30 days in imposing sentence – R v Renzella [1997] 2 VR 88, discussed – Appeal allowed, appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Glynn	Balmer & Associates
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I invite Justice Tate to deliver the first judgment.

TATE JA:

On 13 September 2010, Stephen Wheldon pleaded guilty in the County Court to one count of recklessly causing serious injury. He was sentenced to a period of 36 months with a non‑parole period of 20 months. With respect to his period of pre‑sentence detention, the sentencing judge declared, pursuant to s 18(4) of the Sentencing Act1991, that 334 days be reckoned as time already served in custody in relation to the sentence and her Honour ordered that the declaration be entered on the court record.

Her Honour indicated that the sentence she would have otherwise imposed, but for the plea of guilty, was a total effective sentence of 48 months’ imprisonment with a non‑parole period of 26 months.

The charge arose out of a violent incident that had occurred about 10 pm on Friday, 15 August 2008, at a boarding house in North Melbourne where both Mr Wheldon and the complainant lived. Mr Wheldon engaged in an unprovoked violent attack upon the complainant.

The two men had had brief conversations before the night of the offence but otherwise did not know each other. Mr Wheldon entered the complainant’s room when the door was ajar and swung a shovel to the left side of the complainant’s body. The complainant raised both hands to block the hit but the shovel hit the complainant’s left forearm, slicing the skin. An altercation ensued during which time Mr Wheldon fled towards the front of the house and the complainant asked another resident of the boarding house to call an ambulance.

Upon examination at the Royal Melbourne Hospital, the complainant was found to have a laceration on the lateral aspect of the left arm below the elbow through the subcutaneous tissue to the muscle fascia and swelling and tenderness to the right hand.

The police arrived at the boarding house to find Mr Wheldon extremely intoxicated and verbally aggressive. He was taken to Prahran police station but was unfit to be interviewed…

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 Wheldon v The Queen

Details

AGLC: Wheldon v The Queen [2011] VSCA 83
Case: [2011] VSCA 83
Decision Date: 18 February 2011

CaseChat Overview and Summary

In Wheldon v The Queen, the appellant, having pleaded guilty to recklessly causing serious injury, appealed the sentence imposed by the sentencing judge. The appellant argued that the sentencing judge should have considered the 30 days he spent in custody for unrelated offences while on remand for the current charge. This case came before the court to determine the correctness of the sentence imposed and the applicability of the principle set out in R v Renzella.

The central legal issue was whether the 30 days spent in custody for unrelated offences should be taken into account when determining the sentence for the current offence. The appellant argued that this period should be considered under the principle outlined in R v Renzella, which suggests that time spent in custody for related offences should be factored into the overall sentence. The Crown contended that only time spent on remand for the specific offence should be considered.

The court examined the principle from R v Renzella and held that it was relevant to the current situation, even though the time spent in custody was for unrelated offences. The court found that the sentencing judge should have considered the 30 days in custody when imposing the sentence for the recklessly causing serious injury offence. As a result, the appeal was allowed, and the appellant was resentenced. The court's decision ensured that the sentencing process adhered to established legal principles and that the appellant's rights were properly considered.

Orders