Graeske v R (2015) H&FLR 2015-36

Joshua Graeske v The Queen (2015) H&FLR 2015-36

Court of Appeal of Victoria

28 August 2015

Coram: Maxwell P and Whelan JA

Appearing for the Appellant: Ms CA Boston and Mr A Imrie (instructed by Melasecca Kelly & Zayler)
Appearing for the Respondent: Ms D Piekusis (instructed by Ms V Anscombe, Acting Solicitor for Public Prosecutions)

Catchwords: Australia – Victoria – Australian football – assault – sentencing.

Facts: On 14 July 2012 the defendant (then aged 21) was playing football in an amateur match.  During the match he pulled an opponent to the ground and punched him a number of times, causing significant facial injuries.  He was charged with recklessly causing serious injury (Crimes Act 1958, §17).

The defendant pleaded guilty to the charge and was sentenced to be imprisoned for three years, to serve a minimum of two years: DPP v Graeske (County Court of Victoria, Judge Wischusen, 7 November 2014, unreported).  During the course of the hearing the Sentencing Amendment (Emergency Workers) Act 2014 commenced, the effect of which was (in part) to allow terms of imprisonment to be combined with community corrections orders. Due to an apparent oversight, neither the prosecution nor the defence addressed these amendments in their submissions to the court.

The defendant appealed against the sentence imposed.

Held: Allowing the appeal, setting aside the original sentence and re-sentencing the appellant, that –

1. Because no submissions were made in light of the Sentencing Amendment (Emergency Workers) Act 2014, the trial judge inevitably misdirected himself as to the available sentencing options.

2. Noting the appellant’s youth, difficult personal history and other factors, a sentence of imprisonment for one year followed by a community corrections order of three years (geared to address the appellant’s mental health and drug problems) was appropriate


The Court’s judgment is available here.

Leddin v R (2014) H&FLR 2014-42

Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.


The Court’s judgment is available here.

The Queen v Lane (2011) H&FLR 2014-16

The Queen v Keli Lane (2011) H&FLR 2014-16

Supreme Court of New South Wales

15 April 2011

Coram: Whealy J

Appearing for the Crown: Mark Tedeschi SC (instructed by the Solicitor for Public Prosecutions)
Appearing for the Defendant: Keith Chapple SC (instructed by Archbold Legal)

Catchwords: New South Wales – murder – newborn – circumstantial – water polo – Olympics – sentencing – mother – premeditated

Facts: The defendant was convicted of the murder of her newborn daughter on or about 14 September 1996. Earlier that day (then aged 21 years) she had been discharged from Auburn Hospital with her daughter but later that day arrived home without her. She had concealed both the pregnancy and birth from her associates. The child’s body has never been located and the Crown’s case was entirely circumstantial. Lane pleaded not guilty and maintained at trial that she had given the child to her (the child’s) father to raise and not seen it since.

At the time of the offence the defendant was a sports enthusiast and semi-professional athlete, as were many of her friends and family members. The Crown argued at trial that the murder was prompted by the defendant’s wish not to have a child interfere with her goal of representing Australia in water polo at the 2000 Olympics in Sydney.

Held: Whealy J sentenced the defendant (by then aged 35 years) to 18 years imprisonment, to serve a minimum of 13 years and five months. He did not take the option of imposing a sentence of life imprisonment. Relevant to the sentencing decision were the factors that –

1. The killing of a child by its mother is “tore asunder the natural relationship between mother and daughter”

2. The offence had been premeditated for a short period.

3. Aggravating factors were the age of the victim and that the murder involved abuse of a position of trust.

4. The Court accepted that she had murdered her daughter “in a situation of desperation … [from which] from her perception there was simply no way out”. His Honour accepted that Lane was unlikely to reoffend and presented no risk to the community.

The defendant’s (perhaps excessive) passion for sports appears not to have been an aggravating factor.


Whealy J’s sentencing remarks are restricted. This report has been prepared based on reports prepared by the Australian Broadcasting Corporation and the Sydney Morning Herald.

An appeal against conviction to the Court of Criminal Appeal was dismissed: Lane v R [2013] NSWCCA 317. It appears no attempt was made to appeal to the High Court of Australia.

Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Livingston Sheriff Court (Scotland)

Circa 4 October 2013

Coram: Sheriff Rafferty

Appearing for the prosecutor: Not known

Appearing for the defendant: Alan Jackson (solicitor)

Catchwords: Scotland – fraud – fail to attend – sentencing – arrest – obesity

Facts: On four occasions in or about 2013 the defendant bought pizzas valued at about £30.00 each using another person’s credit card.  He pleaded guilty to obtaining goods by fraud.  He was ordered to pay compensation to the relevant Domino’s Pizza outlet (it is unclear why he was not ordered to compensate the card holder) but failed to do so.

The matter was again brought before Livingston Sheriff Court for formal sentencing.  The defendant – whose reported weight was approximately 254 kilos / 560 pounds – did not attend.  Counsel for the defendant advised the Court that he (the defendant) had“extreme difficulty getting out of the house [and] … can’t physically get out of the house even with assistance”.

Held: Semble, that a defendant’s physical size can be a relevant consideration for the Court in considering whether to grant a warrant for their arrest.  Per Sheriff Rafferty: “’It’s only because I can see huge practical difficulties with him being apprehended by the police that I’ll not grant a warrant in this case.”


No written judgment available.

Sources: Reports in the Mirror, Daily Mail, and Scotsman.