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AP (a pseudonym) v The Queen

AP (a pseudonym) v The Queen

Case [2019] VSCA 278 28 November 2019

Appeal

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0010

AP (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]A pseudonym has been used as the offender was 16 years old at the time of the offence.

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JUDGES:	FERGUSON CJ, WHELAN and PRIEST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	28 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 278
JUDGMENT APPEALED FROM:	[2018] VSC 820 (Coghlan JA)

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CRIMINAL LAW – Appeal – Sentence – Statutory murder – Aggravated carjacking – Sentence of 17 years’ imprisonment for statutory murder – Sentence of three years’ imprisonment for aggravated carjacking – Order that one year of aggravated carjacking sentence be served cumulatively upon statutory murder sentence – Total effective sentence of 18 years – Non-parole period of 14 years – Whether statutory murder sentence and non‑parole period manifestly excessive – Seriousness of offending – Diminished mitigating effect of youth – Importance of denunciation and general and specific deterrence in cases of murder – Gradations in age and maturity – Cases relied on by applicant of no assistance – Non‑parole period unremarkable – Guarded prospects of rehabilitation – Sentence and non‑parole period within range of available sentencing options – Leave to appeal refused – Crimes Act 1958 ss 3, 79A – Azzopardi v The Queen (2011) 35 VR 43, Director of Public Prosecutions v Lawrence (2004) 10 VR 125 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue + George Lawyers
For the Respondent	Mr C Carr with Mr T Bourbon	John Cain, Solicitor for Public Prosecutions

FERGUSON CJ
WHELAN JA
PRIEST JA:

Following a 13 day trial, the applicant was found not guilty of murder at common law but guilty of statutory murder and aggravated carjacking contrary to ss 3A and 79A of the Crimes Act 1958.[2]He was sentenced to 17 years’ imprisonment for statutory murder and three years’ imprisonment for aggravated carjacking. The sentencing judge ordered that one year of the aggravated carjacking sentence be served cumulatively upon the statutory murder sentence, for a total effective sentence of 18 years. The sentencing judge fixed a non‑parole period of 14 years. The maximum penalties available for statutory murder and aggravated carjacking were life imprisonment and 25 years’ imprisonment respectively.[3]
[2]DPP v AP [2018] VSC 820 (‘Reasons’).
[3]Crimes Act 1958 ss 3, 79A(2).

The applicant seeks leave to appeal against sentence on the basis that the sentence of 17 years’ imprisonment for statutory murder and the non‑parole period of 14 years were manifestly excessive. To succeed, the applicant must establish that either or both of the statutory murder sentence and the non‑parole period of 14 years were wholly outside the range of available sentencing options.

For the reasons which follow, the applicant has failed to overcome that hurdle. We would refuse leave to appeal.

Circumstances of the offence[4]

[4]This section is largely drawn from the Reasons [2]-[21].

This application for leave to appeal arises from events that…

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 AP (a pseudonym) v The Queen

Details

AGLC: AP (a pseudonym)[1] v The Queen [2019] VSCA 278
Case: [2019] VSCA 278
Decision Date: 28 November 2019

CaseChat Overview and Summary

The appellant, AP, challenged the sentences imposed by the County Court of Victoria for statutory murder and aggravated carjacking. The appeal against sentence was dismissed by the Court of Appeal, and leave to appeal to the High Court was refused. The appellant was convicted of statutory murder for causing the death of a woman by a voluntary and deliberate act while committing aggravated carjacking. The appellant was also convicted of aggravated carjacking, which involved the use of a firearm. The trial judge sentenced the appellant to 17 years’ imprisonment for statutory murder and three years for aggravated carjacking, with the latter to be served cumulatively with the former. The effective sentence was 18 years, with a non-parole period of 14 years.

The appeal hinged on whether the statutory murder sentence and the non-parole period were manifestly excessive. The appellant argued that his youth at the time of the offence should be considered as a mitigating factor. The Court of Appeal examined the seriousness of the offending, the diminished mitigating effect of youth, and the importance of denunciation and deterrence in cases of murder. The court also considered the gradations in age and maturity and the prospects of rehabilitation. The court held that the sentence and non-parole period were within the range of available sentencing options and were not manifestly excessive. The court found that the trial judge had appropriately balanced the various considerations and that the appeal should be dismissed.

The Court of Appeal dismissed the appeal against sentence and refused leave to appeal to the High Court. The court found that the sentence and non-parole period were within the range of available sentencing options and were not manifestly excessive. The court held that the trial judge had appropriately balanced the various considerations and that the appeal should be dismissed. The appellant’s effective sentence of 18 years, with a non-parole period of 14 years, was upheld. The Court of Appeal found that the trial judge had appropriately balanced the various considerations and that the appeal should be dismissed. The court held that the sentence and non-parole period were within the range of available sentencing options and were not manifestly excessive.

Orders