Blackler v The Queen - [2012] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0112

LEE SINCLAIR BLACKLER
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	Neave, Harper JJA and Hollingworth AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2012
DATE OF JUDGMENT:	15 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 16
JUDGMENT APPEALED FROM	DPP v Blackler (Unreported, County Court of Victoria, Judge Mullaly, 23 March 2011)

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CRIMINAL LAW – Appeal against sentence – Attempted robbery, attempted armed robbery, armed robbery – Whether manifest excess – Cumulation – Principles of totality and proportionality – Whether sentencing judge’s orders for cumulation excessive – Orders for cumulation not excessive – Appeal dismissed – No point of principle

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Mandy	Leanne Warren
For the Respondent	Mr G Silbert SC	Craig Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HARPER JA:
HOLLINGWORTH AJA:

On 23 March 2011, the appellant pleaded guilty to one charge each of attempted robbery, attempted armed robbery and armed robbery, and was sentenced as follows:

Charge on indictment Offence Maximum Sentence Cumulation

1 Attempted robbery 10 years’ imprisonment 12 months 6 months

2 Attempted armed robbery 20 years’ imprisonment 3 years 18 months

3 Armed robbery 25 years’ imprisonment 4 ½ years Base

The total effective sentence was 6 years and 6 months’ imprisonment, with a non-parole period of 4 years.

On 19 August 2011, Redlich JA granted the appellant partial leave to appeal against sentence, on the following ground: ‘The individual sentences imposed and the orders for cumulation were manifestly excessive and resulted in a total effective sentence which did not take into account appropriately the principle of totality.’

The offending all occurred in the early hours of the morning of 2 December 2010. On the evening of 1 December, the appellant went with his sister and a friend to a hotel near Geelong, to drink and play the poker machines. All three left around midnight, but the appellant returned alone a short time later. The appellant went to the main dispensing counter, and pointed at a male staff member using his hand and finger as though it were a gun. He told the staff member that he had a gun and not to make him get it out. He demanded cash. The staff member pressed the security alarm and the appellant ran from the hotel. (Count 1: attempted robbery)

At 1.10 am, the appellant’s sister drove him from her house to a service station in Breakwater. The appellant put on a balaclava and went inside. He was carrying a large kitchen knife and produced it as he approached the counter. He demanded money from the female attendant. She pressed the security alarm and went and locked herself in the adjoining office. The appellant ran from the store. (Count 2: attempted armed robbery)

The appellant was then driven to a convenience store in Geelong. He went into the store wearing the balaclava and holding the large kitchen knife. The male staff member was stocking…

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 Blackler v The Queen

Details

AGLC: Blackler v The Queen [2012] VSCA 16
Case: [2012] VSCA 16
Decision Date: 15 February 2012

CaseChat Overview and Summary

In the matter of Blackler v The Queen, the appellant sought to challenge the sentences imposed on him for various offences, including attempted robbery, attempted armed robbery, and armed robbery. The appeal was heard by the High Court of Australia, where the appellant argued that the sentencing judge's orders for cumulation were manifestly excessive and did not align with the principles of totality and proportionality. The respondent, The Queen, argued that the sentences were appropriate and that the sentencing judge had correctly applied the relevant legal principles.

The central legal issues that the court had to address were whether the sentencing judge's orders for cumulation were manifestly excessive, and whether the principles of totality and proportionality had been properly applied. The court was required to examine the principles of sentencing in Australia, particularly in relation to the imposition of cumulative sentences for multiple offences, and to determine if the sentencing judge had erred in his application of these principles.

The court, in dismissing the appeal, held that the sentencing judge's orders for cumulation were not excessive and that the principles of totality and proportionality had been correctly applied. The court found that the sentencing judge had carefully considered the nature and circumstances of the offences, as well as the appellant's criminal history, in determining the appropriate sentences. The court further held that there was no point of principle of general importance that required the court to intervene in the sentencing decision. The appeal was therefore dismissed, and the original sentences were upheld.

No further orders were made by the court. The decision of the High Court of Australia reinforces the importance of judicial discretion in sentencing and the need for appellate courts to exercise caution when intervening in sentencing decisions, particularly where the sentencing judge has correctly applied the relevant legal principles.

Orders