R v Wise [2004] VSCA 88

Court of Appeal (Vic)|2004-05-06|Before: BATT, CHERNOV and EAMES, JJ.A.

For the reasons given by Eames, J.A. I consider that the sentence is not vitiated by reason of the comments made on the part of the learned sentencing judge. I am of the view, however, substantially for the reasons given by His Honour, the sentence is manifestly excessive and that the appellant should be re-sentenced as His Honour proposed.

2. The sentence imposed on the appellant in the County Court at Bendigo on 19 June 2003 is quashed.

3. In its place - The appellant is sentenced to be imprisoned for a term of six years and the court fixes the period of four years as the period during which the appellant is not to be eligible to be released on parole.

4. The orders for the taking of a forensic sample and for the disposal of property are affirmed.

5. The court declares that the period of 625 days, calculated to and including this day, 6 May 2004, is to be reckoned as already served under the sentence now passed and directs that the fact that the declaration was made and its terms be entered in the records of the court.

Mr Kennan, counsel for the appellant, submitted that as to these and other remarks a fair minded member of the public might reasonably suspect that the judge might not have been approaching the issues with a fair and unprejudiced mind (The Queen v. Watson Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 264; R. v. Charter [2002] VSCA 214 at [22]). He submitted that the remarks created a reasonable apprehension that the judge had made up his mind that it was truly a case of intentionally causing serious injury and that if he was unable to sentence on that basis then he would treat it as being at the highest end of recklessly causing serious injury and impose a sentence which he had already determined.

36 The support offered to the appellant by his victim is also a significant factor when assessing his prospects of rehabilitation. It is, of course, an unfortunate fact that victims of violent, drunken partners, to their own cost, often seek to forgive their partner and to resume a dangerous relationship. The courts must offer protection even when the potential victims deny its need, but the forgiveness of an offender by a victim of crime and the positive effect that has on prospects of rehabilitation is not an irrelevant factor in sentencing: (R. v. Skura [2004] VSCA 53). In this case the victim appears to have been a vulnerable person in many ways, not least because of her youth, and it is understandable that His Honour apparently saw the protection of the community, including Ms Marshall, as being a more important consideration on sentencing than her desire to resume cohabitation with the appellant.

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