JUDGES	NETTLE AND REDLICH JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 February 2011
DATE OF JUDGMENT	30 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 77
JUDGMENTS APPEALED FROM	R v Adams (Unreported, County Court of Victoria, Judge Jenkins, 23 April 2009); DPP (Vic) v Paranihi & Soltan (Unreported, County Court of Victoria, Judge Smallwood, 10 March 2010)

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CRIMINAL LAW – Sentence – Burglary – Theft – Criminal damage – Destroying property – Handling stolen goods – Obtaining property by deception – Attempted burglary – Numerous counts – S, P and A were co-offenders in relation to many, but not all, of the counts – A was sentenced to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years – S and P were later sentenced together – S was sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of two years and one month – P was sentenced to a total effective sentence of four years and five months’ imprisonment with a non-parole period of one year and nine months.

CRIMINAL LAW – Sentence – Manifest inadequacy – Whether the sentences imposed on S and P were manifestly inadequate – Totality – Whether the total effective sentences imposed on S and P properly reflected the totality of their offending conduct – The sentences on the individual counts, the total effective sentences and the non-parole periods were manifestly inadequate – Judge erred in the cumulation of the sentences imposed on the individual counts – Judge erred in failing to give weight to the sentencing of A as a comparable case informing the appropriate ranges for the sentencing of S and P – Appeals allowed – S re-sentenced to a total effective sentence of seven years’ imprisonment with a non-parole period of five years – P re-sentenced to a total effective sentence of six years and three months’ imprisonment with a non-parole period of four years and three months.

CRIMINAL LAW – Sentencing – Observations about the role of mercy – While considerations of mercy may inform the appropriate sentencing range, they cannot justify a manifestly inadequate sentence – DPP (Vic) v Cook (2004) 141 A Crim R 579 applied.

CRIMINAL LAW – Sentence – Manifest excess – Whether the sentences imposed on A were manifestly excessive – While the individual sentences were not outside the appropriate ranges, the total effective sentence was manifestly excessive – Parity – Whether A’s sentences infringed the principle of parity, given the re-sentencing of S and P, and the sentencing of another co-offender – Crown concession that A should be re-sentenced more leniently than S and P properly made – Appeal allowed…

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 Adams v The Queen

Details

AGLC: Adams v The Queen [2011] VSCA 77
Case: [2011] VSCA 77
Decision Date: 30 March 2011

CaseChat Overview and Summary

The appellants, S, P and A, were convicted of multiple criminal offences including burglary, theft, criminal damage, handling stolen goods, obtaining property by deception and attempted burglary. The appellants were co-offenders in relation to many, but not all, of the counts. A was sentenced to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years. S and P were later sentenced to lesser sentences; S received a total effective sentence of five years’ imprisonment with a non-parole period of two years and one month, and P received a total effective sentence of four years and five months’ imprisonment with a non-parole period of one year and nine months. The appellants appealed their sentences, contending that the sentences imposed on S and P were manifestly inadequate and that the sentence imposed on A was manifestly excessive.

The court found that the sentences imposed on S and P were manifestly inadequate, as they did not properly reflect the totality of their offending conduct. The court held that the judge erred in the cumulation of the sentences imposed on the individual counts and in failing to give weight to the sentencing of A as a comparable case informing the appropriate ranges for the sentencing of S and P. The court further found that the sentence imposed on A was not manifestly excessive in relation to the individual sentences, but the total effective sentence was manifestly excessive. The court found that the principle of parity was infringed by the original sentences imposed on A, given the re-sentencing of S and P, and the sentencing of another co-offender.

The appeals were allowed, and S and P were re-sentenced to a total effective sentence of seven years’ imprisonment with a non-parole period of five years, and four years and three months’ imprisonment with a non-parole period of three years and nine months respectively. A was re-sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years. The court emphasised that while considerations of mercy may inform the appropriate sentencing range, they cannot justify a manifestly inadequate sentence.

Orders