Wills v The Queen - [2010] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0809

JESSICA ANNE WILLS	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 September 2010
DATE OF JUDGMENT	14 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 235
JUDGMENT APPEALED FROM	R v Wills (Unreported, County Court of Victoria, Judge Smallwood, 4 September, 2009)

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CRIMINAL LAW – Sentencing – Recklessly cause serious injury – Unprovoked and unexplained knife attack on 60 year old victim – Appellant aged 26 – Plea of guilty – Exceptional personal circumstances going in mitigation – Sentence of 6 years’ imprisonment with 3 year non-parole period manifestly excessive – Appellant re-sentenced to 3 years and 6 months’ imprisonment with non-parole period of 21 months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Rainer Martini & Associates
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Jessica Wills appeals by leave against sentence imposed upon her in the County Court on 4 September 2009. Having pleaded guilty to the following offences, all committed on 27 November 2008, she was sentenced as follows:[1]
[1]The appellant also pleaded guilty to a summary charge of obtaining a drug by deception. On that charge she was convicted and discharged.

Count 1

Recklessly causing serious injury

6 years’ imprisonment (maximum penalty 15 years’ imprisonment

Count 2

Possession of drug of dependence (Cannabis L)

Convicted and discharged (maximum penalty 5 penalty units)

Count 3

Theft of pharmacy prescription

7 day’s imprisonment (maximum penalty 10 years’ imprisonment)

Count 4

Theft of clothing

7 days’ imprisonment (maximum penalty 10 years’ imprisonment)

The learned judge made no order for cumulation, and so the total effective sentence was 6 years’ imprisonment. He fixed a non-parole period of 3 years’ imprisonment. He stated that had the appellant not pleaded guilty he would have sentenced her to 7 years’ imprisonment with a non-parole period of 4 and a half years.

The appellant advanced submissions in respect of the following two grounds of appeal:[2]

Ground 1:
The Learned Sentencing Judge erred in his approach to the imposition of the head sentence.
Ground 3:
The sentence imposed is manifestly excessive.

[2]Although they were in fact argued as one.

The circumstances of the matter, and its aftermath for the victim of the assault, were described by the learned sentencing judge as follows:

7.The circumstances of the offending are serious indeed. On Thursday 27 November 2008 at approximately 7.30 pm, you and two, not co-offenders in this matter but in the Magistrates' Court, were at the Boronia Railway Station. You were yelling loudly and were clearly either drug or alcohol affected.
8.One Leslie Bennett, a 60 year old male who was not known to you or your co-offenders, was at the station re-organising his shopping. One co-offender, Shaddock, approached him and started to ask him for a lighter. He replied that he did not have money and did not smoke. She told him…

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 Wills v The Queen

Details

AGLC: Wills v The Queen [2010] VSCA 235
Case: [2010] VSCA 235
Decision Date: 14 September 2010

CaseChat Overview and Summary

The appellant in this case, Wills, was charged with recklessly causing serious injury to a 60-year-old victim in an unprovoked and unexplained knife attack. The matter was heard in the High Court of Australia, where Wills appealed against his sentence. Wills, who was 26 at the time of the offence, pleaded guilty and the case involved determining an appropriate sentence in light of the serious nature of the offence and mitigating personal circumstances.

The central legal issues in this case were the appropriate sentence for the offence of recklessly causing serious injury, and whether the original sentence of six years' imprisonment with a non-parole period of three years was manifestly excessive. The court had to consider the principles of sentencing in Australian criminal law, including the need for deterrence and retribution, as well as the personal circumstances of the offender that may warrant a lesser sentence.

The High Court held that the original sentence was indeed manifestly excessive. The court took into account the appellant’s guilty plea and the exceptional personal circumstances, including his young age and potential for rehabilitation. The court found that the appropriate sentence should reflect both the need to protect the community and the opportunity for the appellant to reform. Consequently, the court re-sentenced Wills to three years and six months’ imprisonment, with a non-parole period of 21 months. This decision underscored the importance of proportionality in sentencing and the need to balance various sentencing considerations.

Orders