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Bower v The King

Bower v The King

Case [2024] VSCA 317 16 December 2024

Sentencing

Manifest Excess

Youth Justice Centre Order

Leave to Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0152

ETHAN BOWER	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	16 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 317
JUDGMENT APPEALED FROM:	DPP v Bower [2024] VCC 1095 (Judge Parrish)

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APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of armed robbery, two summary charges – Applicant 18 years old at time of offending, 19 years old at time of sentence – Total effective sentence 3 years 2 months, non‑parole period 2 years 2 months – Manifest excess – Young offender – Whether wrong type of sentence – Whether judge erred by sentencing applicant to adult prison, not making Youth Justice Centre order – No error – Serious offence, relevant history of offending, guarded prospects of rehabilitation, assessed as unsuitable for Youth Justice Centre order – Sentence well open to judge – Leave to appeal refused.

Sentencing Act 1991, s 32.

Dinsdale v The Queen (2000) 202 CLR 321; Clarkson v The Queen (2011) 32 VR 361; DPP v Anderson (2013) 228 A Crim R 128; Scannell v The Queen [2014] VSCA 330; Moresco v The Queen [2018] VSCA 336; Franco v Director of Public Prosecutions (WA) (2022) 303 A Crim R 142; Simms v Geeson [2020] WASC 381, considered.

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Counsel
Applicant:		Ms H Anderson
Respondent:		Mr J Sivaratnam
Solicitors
Applicant:	Greg Thomas Barrister & Solicitor
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

The offending

The plea hearing

Reasons for Sentence

Submissions on the application

Proposed ground 1

Proposed ground 2

Relevant legal principles

The wrong type of sentence

Youth Justice Centre Orders

Consideration

MACAULAY JA:

On 24 July 2024, the applicant, then aged 19 years and 7 months, was sentenced in the County Court to a total effective sentence of 3 years and 2 months’ imprisonment with a non‑parole period of 2 years and 2 months. He was sentenced having pleaded guilty to one indictable charge, armed robbery,[1] and two summary charges, possessing a prohibited weapon[2] and committing an indictable offence on bail.[3] The particulars of the individual sentences and amounts of cumulation are set out in the table below:
[1]Contrary to Crimes Act 1958, s 75A.
[2]Contrary to Control of Weapons Act 1990, s 5AA.
[3]Contrary to Bail Act 1977, s 30B (now repealed). The two summary charges were transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009 and, by consent, the applicant’s plea on those charges was heard before the sentencing judge at the same time as his plea to the armed robbery charge.

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Armed robbery 25 years or 3,000 penalty units 3 years Base

Summary charges

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 Bower v The King

Details

AGLC: Bower v The King [2024] VSCA 317
Case: [2024] VSCA 317
Decision Date: 16 December 2024

CaseChat Overview and Summary

The case of Bower v The King involves an application for leave to appeal against a sentence imposed on the applicant, who was found guilty of armed robbery and two summary charges. The applicant was 18 years old at the time of the offending and 19 at the time of sentencing, receiving a total effective sentence of three years and two months, with a non-parole period of two years and two months. The applicant contested the sentence, arguing it was manifestly excessive and that the sentencing judge should have made a Youth Justice Centre order instead of imposing an adult prison sentence.

The legal issues before the court were whether the sentence was a manifest excess and whether the judge erred in not making a Youth Justice Centre order. The court had to consider the principles of sentencing young offenders and whether the sentence imposed was appropriate given the seriousness of the offence, the offender's history, and prospects of rehabilitation. The court also considered whether there was any error in the judge's decision not to make a Youth Justice Centre order.

The court found that the sentence was not a manifest excess and that the judge did not err in not making a Youth Justice Centre order. The court noted the seriousness of the offence, the applicant's relevant history of offending, and his guarded prospects of rehabilitation. The court assessed that the applicant was unsuitable for a Youth Justice Centre order and found that the sentence was well within the range open to the judge. Consequently, the court refused the application for leave to appeal.

No further orders were made by the court.

Orders