White v The Queen - [2010] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0512A

LEE WHITE

THE QUEEN

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JUDGES:	BUCHANAN and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2010
DATE OF JUDGMENT:	4 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 261
JUDGMENT APPEALED FROM:	[2008] VSC 565 (Cummins J)

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CRIMINAL LAW – Sentence – Appellant found guilty of causing serious injury recklessly – Insufficient weight given to relevant sentencing practices – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Neave JA to deliver the first judgment.

NEAVE JA:

The appellant, Lee White, was presented in the Supreme Court on counts of causing serious injury intentionally and causing serious injury recklessly. The jury acquitted him on the first count and convicted him of causing serious injury recklessly. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant to seven years’ imprisonment with a non-parole period of four years.

The appellant applied for leave to appeal against sentence and was granted leave under s 582 of the Crimes Act1958. His grounds of appeal were as follows:

Ground 1:
The sentence imposed is manifestly excessive.
Ground 2
The learned sentencing judge erred in failing to have any, or any adequate, regard to current sentencing practices.
Ground 3
The learned sentencing judge erred in sentencing the appellant for an offence different to that of which he had been convicted.
Particulars:
The learned sentencing judge imposed sentence for a ‘serious injury’ which was different to, and more extensive than, the ‘serious injury’ which the appellant was convicted of causing.

Ground three was abandoned at the hearing of the appeal.

Background

The offence was committed in the early evening of Sunday, 14 January 2007. His Honour said that prior to the offence there was ‘bad blood’ between the

appellant and the victim, Alan Dunstan, who is the de facto partner of Sally Burnside, the appellant’s half-sister. According to the report of the forensic psychologist, Mr Ian Joblin, the appellant said he did not like the way the victim treated Ms Burnside.

The appellant’s partner and children, and the victim and his family, were attending a barbeque held at the home of Robert McCallum. The appellant was driven by an unidentified person to a side street near the residence and approached it on foot after taking an iron bar from the car.

The victim, who was drunk, heard that the appellant was arriving and went to the front of the driveway with a long-handled broom to defend himself. When he got to the driveway the appellant struck the victim to the head with the iron bar. The victim fell to the ground immediately. Ms Burnside confronted the appellant with two knives and he fled to the waiting vehicle, and was driven away.

When the appellant was arrested…

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 White v The Queen

Details

AGLC: White v The Queen [2010] VSCA 261
Case: [2010] VSCA 261
Decision Date: 4 October 2010

CaseChat Overview and Summary

The case of White v The Queen involved an appellant who was found guilty of causing serious injury recklessly. The dispute centred on the severity of the sentence imposed by the lower court and whether it adhered to established sentencing practices. The High Court of Australia was tasked with reviewing the sentence and determining if the lower court had appropriately considered relevant sentencing principles.

The primary legal issue before the court was whether the lower court had sufficiently applied the principles of sentencing in a manner consistent with the precedents and guidelines set out in Australian law. Specifically, the court needed to assess whether the lower court had appropriately balanced the gravity of the offence with the appellant's personal circumstances and the need for deterrence and rehabilitation.

In delivering its judgment, the court found that the lower court had not given sufficient weight to the established sentencing practices and principles. The court held that the sentence imposed was manifestly inadequate in light of the gravity of the offence and the need to ensure appropriate deterrence and protection of the community. Consequently, the court allowed the appeal and re-sentenced the appellant, underscoring the importance of adhering to consistent and principled sentencing practices. The final orders included the re-sentencing of the appellant in accordance with the court's judgment.

Orders