Brayden Walker v The Queen - [2017] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0244

BRAYDEN WALKER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2017
DATE OF JUDGMENT:	7 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 80
JUDGMENT APPEALED FROM:	[2016] VCC 1944 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Whether manifestly excessive – Youth of offender – Prospects of rehabilitation – Gravity of offending – Manifest excess not demonstrated – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr M P Cahill SC with Ms J Swiney	Matthew White and Associates
For the Crown:	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Osborn JA.

REDLICH JA:

I agree with Osborn JA.

OSBORN JA:

The appellant is 21 years old. He appeals by leave against a sentence of two years’ detention in a Youth Justice Centre imposed by Judge McInerney in the County Court of Victoria in respect of a conviction for armed robbery following a plea of guilty.

Leave to appeal was granted on two grounds,[1] but the first ground has now been abandoned and the sole question for this Court is whether the sentence imposed was manifestly excessive.
[1]Leave was granted by Priest JA on 20 February 2017.

In essence, it is submitted that having regard to the appellant’s youth, and his positive prospects of rehabilitation, the sentencing judge was bound to accept that a sentencing disposition by way of a Community Correction Order (‘CCO’) without a custodial sentence was the appropriate outcome.

That outcome was accepted by the prosecution to be within the range properly open to the sentencing judge and, on the hearing of this appeal, senior counsel for the Director maintained that position, but submitted conversely that the disposition at which his Honour arrived was also within the range properly open to him.

In my view, when regard is had to all the circumstances of the case and, in particular, the gravity of the offending and the need for just punishment, denunciation and general deterrence, and despite the matters favouring a more

lenient sentence, his Honour’s sentence cannot be characterised as manifestly excessive.

The offending

Early on 18 February 2016, shortly after midnight, the appellant went to the Shell Coles Express service station in Wantirna North. The premises were empty save for an attendant who was vulnerable because of his isolation. He constituted what is often called a ‘soft target’ in terms of potential armed robbery.

The appellant knocked on the door and, after the attendant had opened it, the appellant entered the store covering his face with a black cloth and produced a large shiny kitchen knife — a potentially lethal weapon.

As the closed circuit television (CCTV) recording shows, the appellant then lent over the counter and pointed the knife at the attendant, yelling ‘give me the cash, give me the cash!’.

The appellant then came around the counter and,…

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 Brayden Walker v The Queen

Details

AGLC: Brayden Walker v The Queen [2017] VSCA 80
Case: [2017] VSCA 80
Decision Date: 7 April 2017

CaseChat Overview and Summary

Brayden Walker appealed against his sentence, contending that it was manifestly excessive. The respondent, the Crown, defended the sentence as appropriate given the circumstances. The case was heard in the High Court of Australia. The primary legal issue was whether the sentence imposed on Walker was manifestly excessive, taking into account his youth, prospects of rehabilitation, and the gravity of the offence. The court also considered whether the sentence imposed was unjust and disproportionate to the offence committed.

In its judgment, the court examined the principles of sentencing in criminal law, particularly focusing on the need for proportionality and fairness. It noted that while the sentence was severe, it was not so disproportionate as to be manifestly excessive. The court emphasised that the sentence had to be balanced against the seriousness of the offence and the need for deterrence and rehabilitation. The court concluded that the sentence did not demonstrate a manifest excess, as it was proportionate to the gravity of the crime committed and took into account the offender's youth and potential for rehabilitation. Accordingly, the appeal was dismissed.

Orders