and Redzhuan Bin Mahat v The Queen - [2015] VSCA 111

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0270
REDZHUAN BIN MAHAT	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, SANTAMARIA and BEACH JJA
WHERE HELD:	WANGARATTA
DATE OF HEARING:	19 May 2015
DATE OF JUDGMENT:	19 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 111
JUDGMENT APPEALED FROM:	DPP v Mahat (Unreported, County Court of Victoria, Judge Pilgrim, 13 November 2014 (date of sentence))

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CRIMINAL LAW – Sentence - Appeal against sentence – Multiple offences – Armed robbery – Aggravated burglary – Burglary – Intentionally causing serious injury – Theft – Pleas of guilty – Appellant suffering from mental impairment – No prior convictions – Very serious offending – Principles referred to in R v Verdins (2007) 16 VR 269 engaged – Totality – Whether individual sentences, orders for cumulation or total effective sentence of nine years with non-parole period of seven years manifestly excessive – Sentences and orders not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Pyne	Victoria Legal Aid
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA

SANTAMARIA JA
BEACH JA:

Introduction

On 13 November 2014, the appellant pleaded guilty to four charges of aggravated burglary, one charge of armed robbery, one charge of intentionally causing serious injury, one charge of burglary and three charges of theft. Following a plea hearing, the appellant was sentenced on the same day as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year

2 Armed robbery [Crimes Act 1958, s 75A(1)] 25 years’ imprisonment 3 years 1 year

3 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year

4 Intentionally causing serious injury [Crimes Act 1958, s 16] 20 years’ imprisonment 4 years Base

5 Burglary [Crimes Act 1958, s 76(1)] 10 years’ imprisonment 15 months -

6 Theft [Crimes Act 1958, s 74(1)] 10 years’ imprisonment 6 months -

7 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year

8 Theft [Crimes Act 1958, s 74(1)] 10 years’ imprisonment 6 months -

9 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year

10 Theft [Crimes Act 1958, s 74(1)] 10 years’ imprisonment 6 months -

Total Effective Sentence: 9 years’ imprisonment

Non-Parole Period: 7 years

On 27 February 2015, Priest JA granted the appellant leave to appeal against his sentence on the following ground:

The total effective sentence and the non-parole period are manifestly excessive, having regard to:
(a)the learned Judge’s finding that the appellant was mentally impaired to the extent that he was ‘a near miss on the defence of mental impairment’;

(b)       the appellant’s lack of prior convictions;
(c)       the appellant’s plea of guilty;
(d)      the appellant’s relative youth and personal circumstances;
(e)       the…

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: [2015] VSCA 111
Decision Date: 19 May 2015

CaseChat Overview and Summary

Redzhuan Bin Mahat was convicted of multiple offences including armed robbery, aggravated burglary, burglary, intentionally causing serious injury, and theft. The appellant appealed against the sentence imposed by the County Court of Victoria, arguing that it was manifestly excessive. Mahat had pleaded guilty to all charges and was suffering from a mental impairment, with no prior convictions. The primary judge sentenced him to a total effective sentence of nine years, with a non-parole period of seven years. The appeal hinged on whether this sentence was manifestly excessive, considering the principles from R v Verdins and the totality of the circumstances.

The court examined the nature and seriousness of the offending, the appellant's personal circumstances, and the principles of totality. Mahat's offending was described as very serious, involving multiple offences committed against several victims, often at gunpoint. The court found that the principles set out in R v Verdins were engaged, particularly the need to recognise the seriousness of the offending, the need to protect the community, and the need to provide some measure of denunciation. The appellant's mental impairment and lack of prior convictions were considered but did not outweigh the gravity of his crimes.

The Court of Appeal determined that the sentence imposed was not manifestly excessive. The totality of the sentence and the consideration given to the principles of sentencing meant that the sentence did not fail to achieve the purposes of sentencing. The court acknowledged the appellant's mental impairment but found that it did not significantly mitigate the seriousness of the offending. The appeal was dismissed, affirming the sentence imposed by the County Court.

Orders