Amos Mendelle v The Queen - [2018] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0068

AMOS MENDELLE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	COGHLAN and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2018
DATE OF JUDGMENT:	8 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 204
JUDGMENT APPEALED FROM:	DPP v Mendelle (Unreported, County Court of Victoria, Judge McInerney, 1 March 2018)

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CRIMINAL LAW – Appeal – Sentence – Charge of armed robbery – Judge’s departure from earlier sentencing indication constituted failure to accord procedural fairness - Parity – Prior sentence served interstate erroneously not taken into account – Breach of principle of totality – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Slades & Parsons
For the Crown	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

COGHLAN JA

WEINBERG JA:

The applicant, now aged 36, pleaded guilty on 16 November 2017 to one charge of armed robbery. He was sentenced on 1 March 2018 to three years and six months’ imprisonment with a non-parole period of two years and six months. He now seeks leave to appeal against sentence on the following grounds:

Ground One – The learned sentencing judge denied the Applicant procedural fairness by failing to alert counsel to the possibility that he would find that the Applicant’s role in the offending was more serious than that of Mr Brown and thereby warranted a longer sentence.
Ground 2 – The learned sentencing judge erred by failing to apply the principle of totality.

Background facts

The offence, which gave rise to the sentence under challenge, was committed on 11 March 2012. The applicant, accompanied by a co-offender, Michael Brown (sentenced on 3 May 2013 to three years’ imprisonment with a non-parole period of two years) entered a 7-Eleven store in Blackburn. The applicant was carrying an imitation firearm.

The applicant pointed the firearm at the shop’s attendant who initially did not take him seriously. The co-offender then entered the shop, approached the counter, and brandished a serrated knife. At that point, the attendant realised this was no joke. The applicant seized some $250 from the drawer of the cash register, and the two offenders ran from the store.

Both men were arrested some three days later, on 14 March 2012. Brown made full admissions and implicated the applicant as the second offender. However, the applicant initially denied any involvement in the crime. He was interviewed again on 20 March 2012 and, having been told that Brown had implicated him, then made full admissions concerning his own involvement.

The applicant absconded in breach of his bail conditions. He moved interstate to be with his family. On 7 October 2016 he was arrested on drug charges in South Australia and sentenced to 12 months’ imprisonment with a non-parole period of six months. He was extradited to Victoria after serving nearly seven months of his term of imprisonment on that drug charge. In effect, the applicant has been in custody…

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 Amos Mendelle v The Queen

Details

AGLC: Amos Mendelle v The Queen [2018] VSCA 204
Case: [2018] VSCA 204
Decision Date: 8 August 2018

CaseChat Overview and Summary

The case of Amos Mendelle v The Queen was heard by the court of appeal, where Mendelle sought to appeal his sentence for armed robbery. The appeal centred around the contention that the trial judge's sentencing decision did not adhere to procedural fairness and parity principles. Additionally, the appellant argued that a prior sentence served in another state was not appropriately considered, leading to a breach of the principle of totality.

The primary legal issues the court had to address were whether the trial judge's departure from an earlier indication of sentence amounted to a failure to accord procedural fairness, and whether the prior interstate sentence was correctly taken into account in the overall sentencing process. The court also had to determine if there was a breach of the principle of totality due to the failure to consider the prior sentence.

The court of appeal found that the trial judge did not fail to accord procedural fairness by departing from the earlier indication of sentence, as the indication was not binding and the judge was entitled to impose a different sentence. The court also held that the prior interstate sentence was not erroneously ignored and that there was no breach of the principle of totality. The court of appeal dismissed the appeal and denied leave to appeal to a higher court, upholding the original sentence.

The final orders of the court were to dismiss the appeal and deny leave to appeal, affirming the sentence imposed by the trial judge. The court concluded that the trial judge had acted within their discretion and that the appeal did not succeed on any of the grounds presented.

Orders