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Wilson v The Queen

Wilson v The Queen

Case [2011] VSCA 12 2 February 2011

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0837

BENJAMIN JAMES WILSON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 January 2011
DATE OF JUDGMENT	2 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 12
JUDGMENT APPEALED FROM	R v Wilson [2009] VSC 431 (Curtain J)

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to one count of defensive homicide – Sentenced to ten years’ imprisonment with non-parole period of 7 years – Whether sentencing judge’s finding that appellant intended to cause really serious injury but not to kill should be regarded as significantly mitigatory – Whether sentence manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Chris McLennon & Co
For the Crown	Mr G Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

The appellant, Benjamin James Wilson, pleaded guilty in the Supreme Court on 12 March 2009 to one count of defensive homicide. He was sentenced to a term of ten years’ imprisonment with a non-parole period of seven years. The sentencing judge declared that, but for the plea of guilty, he would have received a total effective sentence of 12 years with a non-parole period of ten years.

In brief, the circumstances surrounding this offending were as follows. On Sunday 22 July 2007 the appellant, together with a friend, went to a boarding house in Jackson Street, St Kilda, which was where the deceased, Setla Hung, resided. The appellant spent the afternoon drinking and became intoxicated and argumentative. A violent confrontation took place after the appellant accused Mr Hung of stealing the other tenants’ food.

Mr Hung struck the appellant on the head with an object, causing him to bleed. An ambulance was called. Despite this, the appellant left the boarding house covered in blood, and still bleeding profusely.

The appellant went to a crisis centre in Grey Street, St Kilda. He appeared agitated and, despite requesting the staff to ring an ambulance, he then left. Following this, he began to indulge in strange behaviour, such as jumping out in front of passing motorists and pedestrians with the apparent object of frightening them. He also left a series of bloodied handprints on various fences. The appellant then continued towards nearby Fitzroy Street, where he was seen to be drunk, aggressive and abusive to patrons. He was also observed to pick up a partition and throw it onto the ground.

The police ultimately located the appellant, who acknowledged his intoxicated state and the consequences of his being in that condition. He asked the police to handcuff him, telling them that he was a ‘bad drunk’. He was duly arrested and transported by ambulance to the Alfred Hospital.

The appellant was breathalysed at the hospital and found to have a blood alcohol level of .017. Once again, he left the hospital before he could be treated. He then returned to the house in…

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 Wilson v The Queen

Details

AGLC: Wilson v The Queen [2011] VSCA 12
Case: [2011] VSCA 12
Decision Date: 2 February 2011

CaseChat Overview and Summary

In the case of Wilson v The Queen, the appellant faced a criminal charge related to an act of defensive homicide, for which he ultimately pleaded guilty. The case was heard in the Court of Appeal, where the appellant contested the sentence imposed by the trial judge. The appellant was sentenced to ten years in prison with a non-parole period of seven years. The primary legal issues before the court were whether the sentencing judge's finding that the appellant intended to cause really serious injury but not to kill should be considered significantly mitigatory and whether the sentence was manifestly excessive.

The court considered the sentencing judge's finding regarding the appellant's intent, acknowledging that it could be seen as a mitigating factor. However, the court noted that the fact the appellant had caused the death of the victim was a serious matter. In determining whether the sentence was manifestly excessive, the court weighed the severity of the offence against the mitigating factors, including the appellant's guilty plea and the circumstances surrounding the incident. The court ultimately concluded that the sentence was appropriate given the gravity of the offence and the mitigating factors present.

Given the careful consideration of the mitigating factors and the severity of the offence, the court found no basis to interfere with the sentence imposed by the trial judge. The appeal was dismissed, affirming the original sentence of ten years in prison with a non-parole period of seven years. This decision reinforces the principle that while mitigating factors may be taken into account, they must be balanced against the seriousness of the crime committed.

Orders