Adam Poidevin v The Queen - [2016] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0110

ADAM POIDEVIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 July 2016
DATE OF JUDGMENT:	18 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 165
JUDGMENT APPEALED FROM:	DPP v Poidevin (Unreported, County Court of Victoria, Judge Montgomery, 26 June 2015)

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CRIMINAL LAW – Leave to appeal against sentence – One count each of armed robbery, threatening to inflict serious injury and theft of a motor vehicle – Whether a total effective sentence of four years’ imprisonment with a non-parole period of two years manifestly excessive – Youth and intellectual disability of Appellant – Risk of institutionalization – Likelihood that Appellant will serve entirety of parole period in custody – Poor prospects of reformation – Substantial criminal history – Sentence not manifestly excessive – Leave application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Kaddeche	Emma Turnbull Lawyers
For the Crown	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA :

The applicant pleaded guilty, in the County Court at Melbourne, to one charge of armed robbery, one charge of threating to inflict serious injury and one charge of theft. On 26 June 2015, he was sentenced to an aggregate term of 20 months’ imprisonment, to be followed by an 18 month Community Correction Order (‘CCO’).

On 10 May 2016, the applicant admitted to having contravened the CCO through a combination of failing to report as directed, failing to undergo treatment, and failing to attend specified appointments. In addition, the applicant committed a number of serious offences during the operational period of the CCO.

The CCO was cancelled and the applicant was, on this occasion, re-sentenced to an aggregate term of four years’ imprisonment, with a non-parole of two years. A period of 613 days was declared as pre-sentence detention.

The applicant submits that this later sentence, and particularly the aggregate term of four years’ imprisonment, was manifestly excessive. By way of particulars, he relies upon:

· the original sentence imposed by the sentencing judge;

· his personal circumstances, including his age, intellectual disability and difficult upbringing;

· the hardship that he had experienced while in custody; and

· the principle of totality.

For the reasons that follow, we would refuse leave to appeal.

Circumstances surrounding the offending

On 15 June 2013, the applicant, then aged 20, visited a McDonald’s restaurant in Melton. He was accompanied by a friend. As it happened, Calum Holmes and Brendan Curmi, then aged 18 and 19 respectively, were also at that restaurant.

As Holmes and Curmi were leaving, the applicant called out for them to ‘wait up.’ He then demanded their wallets. Holmes handed his wallet over, but Curmi asked the applicant if he was serious. The applicant replied that he was, and lifted his top to reveal a knife. Curmi then handed over his wallet.

The applicant looked through the wallets. They contained…

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.

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Details

Case: [2016] VSCA 165
Decision Date: 18 July 2016

CaseChat Overview and Summary

In the matter of Adam Poidevin versus The Queen, the appellant, Poidevin, sought leave to appeal against the sentence imposed on him following his convictions for armed robbery, threatening to inflict serious injury, and theft of a motor vehicle. The case was heard in the High Court of Australia. Poidevin argued that the total effective sentence of four years' imprisonment, with a non-parole period of two years, was manifestly excessive. His grounds for appeal included his youth, intellectual disability, the risk of institutionalisation, the likelihood of serving the entirety of the parole period in custody, and his poor prospects of reformation. Poidevin also highlighted his substantial criminal history as a mitigating factor.

The High Court was tasked with determining whether the sentence was manifestly excessive in light of the appellant's personal circumstances and criminal history. The court considered the principles of sentencing, which include deterrence, denunciation, rehabilitation, and protection of the community, against the mitigating factors presented. The court also examined the appellant's criminal history, which included numerous prior convictions, and noted that while Poidevin's personal circumstances were indeed serious, they did not outweigh the need for the sentence to achieve the objectives of general and specific deterrence, as well as the protection of the community.

The High Court found that the sentence was not manifestly excessive. The court held that the sentence reflected the seriousness of the offences and was appropriate given the need to uphold the deterrent effect of the law and to protect the community. The court further noted that while Poidevin's personal circumstances were indeed serious, they did not warrant a sentence that was significantly below the range of sentences that would normally be imposed for such offences. The appeal against sentence was dismissed, and leave to appeal was refused.

Orders