Andrew Leime v The Queen - [2018] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0209

ANDREW LEIME	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No Oral Hearing
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 13
JUDGMENT APPEALED FROM:	DPP v Leime (Unreported, County Court of Victoria, Judge Lacava, 5 September 2017)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

---

CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to five charges of aggravated burglary, four charges of theft, two charges of attempted armed robbery, one charge of false imprisonment, one charge of resist emergency worker on duty and one charge of unlawful assault – Crime spree across five residences at night – Applicant sentenced to five years’ imprisonment with a non-parole period of two years and six months – Whether sentence manifestly excessive – Whether applicant’s youth and traumatic refugee background adequately taken into account as mitigation – No reasonable prospect of lesser sentence being imposed if leave to appeal granted – Application refused.

---

APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA:

On 17 August 2017, the applicant pleaded guilty to a series of charges that arose out of events that took place in September 2016. Those offences included five charges of aggravated burglary, four charges of theft, two charges of attempted armed robbery, and one charge each of false imprisonment, knowingly resist an emergency worker on duty, and unlawful assault.

On 5 September 2017, the applicant was sentenced as follows:

Charge on Indictment G12558526 Offence Maximum Sentence Cumulation

1 Aggravated Burglary
[s 77(1) of Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 6 months

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

3 Aggravated Burglary
[s 77(1) of Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 6 months

4 Theft
[s 74(1) of Crimes Act 1958] 10 years’ imprisonment 3 months’ imprisonment -

5 Aggravated Burglary
[s 77(1) of Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment Base

6 Attempted Armed Robbery
[s 75A(1) of Crimes Act 1958] 20 years’ imprisonment 12 months’ imprisonment -

7 Attempted Armed Robbery
[ss 321M and 75A(1) of Crimes Act 1958] 20 years’ imprisonment 12 months’ imprisonment -

8 False Imprisonment
[Common Law] 10 years’ imprisonment 12 months’ imprisonment -

9 Aggravated Burglary
[s 77(1) of Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 6 months

10 Theft
[s 74(1) of Crimes Act 1958] 10 years’ imprisonment 3 months’ imprisonment -

11 Theft
[s 74(1) of Crimes Act 1958] 10 years’ imprisonment 7 days’ imprisonment -

12 Aggravated Burglary
[s 77(1) of Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 6 months

13 Resist Emergency Worker on Duty
[s 31(1)(b) of Crimes Act 1958] 5 years’ imprisonment 3 months’ imprisonment

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 Andrew Leime v The Queen

Details

AGLC: Andrew Leime v The Queen [2018] VSCA 13
Case: [2018] VSCA 13
Decision Date: 2 February 2018

CaseChat Overview and Summary

In the case of Andrew Leime v The Queen, the applicant pleaded guilty to a series of serious offences committed during a crime spree across five residences in Melbourne. The charges included multiple counts of aggravated burglary, theft, attempted armed robbery, false imprisonment, resisting an emergency worker, and unlawful assault. The Supreme Court of Victoria was tasked with determining whether the sentence imposed was manifestly excessive, and whether the applicant’s youth and traumatic refugee background were sufficiently considered during sentencing. The applicant was sentenced to five years’ imprisonment with a non-parole period of two years and six months.

The primary legal issue before the court was whether the sentence was manifestly excessive, taking into account the nature and circumstances of the offences and the offender. The court also needed to determine whether the applicant’s youth and traumatic refugee background were adequately considered as mitigating factors. A further issue was whether there was a reasonable prospect of a lesser sentence being imposed if leave to appeal were granted. The applicant argued that the sentence was manifestly excessive and that his background was not adequately taken into account by the sentencing judge.

The court considered the severity and nature of the crimes, which involved violence, intimidation, and repeated targeting of victims in their homes. The court noted that the applicant had no prior criminal record, but highlighted the significant harm caused to the victims. The sentencing judge had considered the applicant’s background and youth but found that these factors did not warrant a significantly reduced sentence given the nature of the crimes. The court concluded that there was no reasonable prospect of a lesser sentence being imposed if leave to appeal were granted. Therefore, the application for leave to appeal was refused.

The final orders of the court were to dismiss the application for leave to appeal against sentence. The court affirmed the sentence imposed by the sentencing judge, finding it to be appropriate and not manifestly excessive. The court also noted that the sentencing judge had adequately considered the applicant’s background and youth as mitigating factors, and that these did not warrant a significantly reduced sentence.

Orders