SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0257
| BAROCH BAROCH | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2021 0014
| MAWUT ATER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, MACAULAY and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 February 2022 |
| DATE OF JUDGMENT: | 17 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 90 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1826 (Judge Marich) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally cause injury (‘ICI’), theft – Brutal attack on good Samaritan – Very serious instance of ICI – First applicant sentenced to 3 years and 9 months’ imprisonment – Whether manifestly excessive – Childhood deprivation – Verdins 5 – Parity – Whether open to differentiate between co-offenders – Cancellation of second applicant’s visa inevitable – Prospect of deportation – Failure to take into account additional burden of imprisonment – Crown concession – Second applicant resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Baroch) | Mr M Stanton with Ms H Anderson | David Barrese & Associates |
| For the Applicant (Ater) | Ms F Fox | Emma Turnbull Lawyers |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
MACAULAY JA
WHELAN JA:
Summary
These applications concern sentences imposed on two offenders for a series of offences committed — some jointly — over a two week period in July 2019. The first applicant (Baroch) pleaded guilty to three indictable offences: armed robbery, intentionally causing injury and theft, while the second applicant (Ater) pleaded guilty to nine indictable offences: robbery (2), theft (3), intentionally causing injury, carjacking, handling stolen goods and obtaining property by deception.
The offending conduct took place on six separate occasions. The most serious offences were those committed when Baroch and Ater were acting together: the armed robbery committed by Baroch (Ater pleaded guilty only to robbery) and, on a different occasion, the offences of intentionally causing injury and theft, committed jointly. As will appear, it was the sentences imposed for the latter offending which were the subject of most attention on the hearing of the applications. Unsurprisingly, there was no challenge to the sentence of 3 years and 6 months’ imprisonment imposed on Baroch for armed robbery.
On the charge of intentionally causing injury, Baroch was sentenced to 3 years and 9 months’ imprisonment, while Ater was sentenced to 3 years and 3 months’ imprisonment. Baroch contends that his sentence was manifestly excessive and, in the alternative, that there was no reasonable basis for the differential of 6 months between himself and Ater. Ater likewise advances a ground of manifest excess but her principal contention is that the judge failed to take into account the inevitable cancellation of her visa and the increased burden of imprisonment resulting from her facing the prospect of deportation.
For reasons which follow, we would refuse Baroch’s application for leave to appeal. The charges of intentionally cause injury arose from a very violent attack on a person who had come to offer assistance to the applicants, an attack…
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- AGLC
- Baroch v The Queen; Ater v The Queen [2022] VSCA 90
- Case
- [2022] VSCA 90
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the sentences imposed were manifestly excessive, whether the court had adequately considered the mitigating factors, and whether there was a need to differentiate between the co-offenders’ sentences. The court examined the principles of sentencing for intentionally causing injury and theft, including the need to consider the culpability of the offender, the harm caused, and the need for deterrence. The court also considered the principle of parity, which requires that co-offenders be sentenced according to their respective roles and culpability. Additionally, the court needed to determine whether the sentences adequately reflected the additional burdens faced by the second applicant due to the prospect of deportation.
The court found that the sentences imposed were indeed manifestly excessive and did not adequately account for the mitigating factors presented. The court noted that the brutal nature of the crime warranted a significant penalty, but the sentences did not reflect the appropriate balance between punishment and rehabilitation. The court also recognised the unique circumstances of the second applicant, who faced the additional burden of potential deportation. While the Crown conceded that the sentences were excessive, the court found that the sentences did not sufficiently differentiate between the co-offenders, considering their roles and circumstances. The second applicant’s sentence was re-assessed and reduced to better align with the principles of sentencing and the unique circumstances of the case. The first applicant’s sentence was also reviewed, but ultimately deemed not manifestly excessive after considering the totality of the circumstances.
The final orders of the court included the resentencing of the second applicant to a more appropriate term of imprisonment, reflecting the principles of sentencing and the specific mitigating factors. The court emphasised the importance of considering the unique circumstances of each offender and the need for a balanced approach to sentencing that includes both punishment and rehabilitation. The court also highlighted the need for parity between co-offenders and the consideration of additional burdens faced by the offender.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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