Legal Research
Cases
Baroch v The Queen

Baroch v The Queen

Case [2022] VSCA 90 17 May 2022

Appeal

Criminal Liability

Sentencing

Intentionally Cause Injury

Criminal Law

Type to search within this case.

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

---

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)

---

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.

---

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…

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 Baroch v The Queen

Details

AGLC: Baroch v The Queen; Ater v The Queen [2022] VSCA 90
Case: [2022] VSCA 90
Decision Date: 17 May 2022

CaseChat Overview and Summary

The appeal by Baroch and another individual against their sentences raises significant questions concerning the appropriate application of sentencing principles in cases involving intentional injury and theft. The first applicant, who brutally attacked a good Samaritan, was sentenced to three years and nine months’ imprisonment, while the second applicant, who had their visa cancelled and faced deportation, was also sentenced. The applicants contended that their sentences were excessively harsh and failed to consider various mitigating factors, including their backgrounds and the impact of imprisonment on their circumstances. The court was required to assess whether the sentences were manifestly excessive, taking into account the nature of the crimes, the need for deterrence and rehabilitation, and the principle of parity between co-offenders.

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