Appeal – Incorrectly Sentenced as a Serious Violent Offender

The decision and facts of this successful appeal are set out in the Court of Appeal judgment which can be found at R v Tresize [2008] VSCA 8 (30 January 2008). A summary and some comments are included below.

On the night of the offence, the client was at her home. She was joined by other people including a 35 year old man who described himself as being on a Disability Pension for a psychiatric disability and as suffering from a drug induced psychosis. He was a friend or acquaintance of client and had frequented the client’s home previous occasions.

The man stated that he arrived at the client’s home with another man at about 11am, although other accounts suggest that it was later than that. The accompanying man was also on a Disability Pension. There were other people at the premises including a 42 year old woman, two 17 year old young men and others.

It was a social occasion of sorts. People were drinking alcohol and smoking cannabis.

It appears that in the course of the afternoon the 35-year-old male’s behaviour became unpleasant and difficult. It seems to have been a matter of perspective as to how it was viewed. He and the man he arrived with said that there were no fights, or arguments. Other parties attested the man became nasty and abusive, that he was drunk and attempted to cause a fight. He was described as being loud and annoying, but not frightening.

The result was an argument between the client and the man. It seems to have been about their relationship and about his persistent and pestering conduct.

In the late afternoon, the man left the premises and the client followed him for at least the distance of a single house frontage. The argument continued. The client was carrying a knife that she had taken from her kitchen. Subsequently, police took possession of the knife and described it as “a wooden handled knife with a blade approximately 15 centimetres long”.

A neighbour had observed the client walk from her unit and follow the man. He was four or five feet in front. The client had followed him for the distance of a house block when he turned and faced her. She was yelling at him and stabbed him with the knife in the area of the left shoulder.

The stabbing resulted in him suffering serious injuries. The client was originally sentenced to four years’ imprisonment, with a non-parole period of two years.

Doogue + George took over this case after the client received a sentence in the County Court. Josh Taaffe represented our client at the Melbourne Court of Appeal to appeal for the sentence that our client received for the charge of Intentionally Cause Serious Injury. We discovered that the client had been incorrectly sentenced as a serious violent offender. The Crown conceded that the sentencing judge erred by sentencing the appellant as a serious violent offender.

The client was re-sentenced with various mitigating factors examined on the appeal, including a history of serious mental illness and the effect of a violent home invasion two weeks prior to the offence, and was re-sentenced to three years’ imprisonment with a non-parole period of 18 months.

 


Josh TaaffeJosh Taaffe

Josh has extensive experience in indictable crime including sex offences, assaults & drug matters.

As an instructing solicitor Josh has specialised in handling complex matters, such as murder and terrorism trials, including State and Commonwealth Supreme Court trials. Josh is an Accredited Criminal Law Specialist.

Visit Josh’s profile to read more about his background and experience.

DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 25/02/2013