R v Azzopardi, R v Baltatzis, R v Gabriel (Unreported, County Court of Victoria, Judge Gullaci, 18 November 2009)
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CRIMINAL LAW – Sentencing – Youthful offenders sentenced to very long terms of imprisonment – Large number of serious crimes over short period – Armed robbery –Intentionally causing serious injury – Parity – Double punishment – Principles applicable to youthful offenders discussed – Reduction in mitigating effects of youth as seriousness of offences increases – Totality – Explication of principles underlying totality – Whether crushing sentence – Verdins principles eschewed on plea – No obligation on sentencing judge to consider – Revivication of argument on appeal refused – R v Romero [2011] VSCA 45 applied – Appeals allowed.
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Appearances:
Counsel
Solicitors
For the Applicant Azzopardi
Mr Theo Kassimatis
Balmer & Associates
For the Applicant Baltatzis
Mr C B Boyce
Victoria Legal Aid
For the Applicant Gabriel
Mr D A Dann
Anne Valos & Associates
For the Crown
Mr J D McArdle with Mr P B Kidd
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA:
The applicants who were all young offenders, engaged in persistent and grave criminal conduct. This appeal against their sentences principally raises the questions whether the mitigating influence of their youth had been expunged because of the extent and seriousness of their criminality and whether upon a proper understanding of the principle of totality, the imposition of lesser sentences was required.
The applicants Alfer Azzopardi and Michael Baltatzis pleaded guilty in the County Court to 46 counts relating to offences which they committed in a seven week period between 7 August 2008 and 28 September 2008, being 23 counts of armed robbery (counts 1, 2, 5, 7, 9, 10, 17, 18, 22, 23, 25, 27, 29-32, 35, 36, 38, 40, 42, 44 and 46), nine counts of attempted armed robbery (counts 3, 4, 13, 15, 16, 20, 24, 26 and 28), two counts of attempted robbery (counts 11 and 12), four counts of intentionally causing serious injury (counts 33, 37, 39 and 41), two counts of intentionally causing injury (counts 14 and 47) and six counts of common law assault (counts 6, 8, 19, 21, 43 and 45).
The applicant Sean Gabriel pleaded guilty to 10 counts relating to offences he committed on the evening of 27 September 2008, in the company of the other applicants, being five counts of armed robbery (counts 32, 36, 38, 40 and 42), three counts of intentionally causing serious injury (counts 37, 39 and 41), one count of recklessly causing serious injury (count 34)…
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
AGLC
Azzopardi v The Queen [2011] VSCA 372
Case
[2011] VSCA 372
Decision Date
CaseChat Overview and Summary
The case of Azzopardi v The Queen involved the appellants, who were convicted of various serious offences including armed robbery and intentionally causing serious injury. The appellants were sentenced to lengthy terms of imprisonment, and they appealed against the severity of their sentences. The appeal was heard by the Supreme Court of Victoria. The primary issue before the court was whether the sentences imposed on the appellants were excessive, considering their youth and the totality of their offending. The court had to determine whether the sentences were crushing, in the context of the principles applicable to youthful offenders.
The court examined the principles underlying the sentencing of youthful offenders, acknowledging that while youth can be a mitigating factor, its effect diminishes as the seriousness of the offences increases. The court highlighted the importance of the principle of totality, which requires that the overall sentence reflects the totality of the offender’s offending. The court emphasised that the sentences should not be crushing, meaning they should not be excessively severe to the extent that they render the punishment inhumane. The court also considered whether the appellants' sentences were disproportionate in light of the Verdins principles, which relate to the treatment of offenders who plead guilty. The court found that these principles did not apply on the basis of the plea and there was no obligation for the sentencing judge to consider them.
The court concluded that the sentences imposed on the appellants were indeed crushing and disproportionate. The court found that the sentences did not adequately reflect the principles of sentencing applicable to youthful offenders and failed to properly account for the totality of the appellants' offending. The appeals were allowed, and the sentences were reduced. The court's decision emphasised the importance of proportionality in sentencing, particularly in cases involving youthful offenders, and the need to ensure that sentences are not excessively severe.