Breuer v The Queen

[2011] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0063
DANIELLE BREUER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HANSEN JA, WHELAN and ROSS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2011
DATE OF JUDGMENT:	23 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 244
JUDGMENT APPEALED FROM:	DPP v Breuer (Unreported, County Court of Victoria, Judge Tinney, 3 March 2011)

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CRIMINAL LAW – Sentence – Attempted armed robbery, recklessly cause injury, theft –Applicant received total effective sentence of two years and three months’ imprisonment with non-parole period of seven months – Co-offender later sentenced by same judge to total effective sentence of three years and nine months’ imprisonment with non-parole period of two years and three months – Parity principle not offended – Judge entitled to find no exceptional circumstances existed to justify suspension of applicant’s sentence – Judge appropriately moderated sentence on account of R v Verdins (2007) 16 VR 269 - Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis with Ms M Tittensor	Lethbridges
For the Respondent	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

HANSEN JA:

1. The applicant pleaded guilty in the County Court to one count of attempted armed robbery, one count of recklessly causing injury and one count of theft.  Following a plea in mitigation, the applicant, then 26 years old, was sentenced on 3 March 2011 as follows:

Count on Presentment	Offence	Maximum	Sentence	Cumulation
1.	Attempted Armed Robbery	20 years	2 years	Base Sentence
2.	Recklessly Cause Injury	5 years	9 months	3 months
3.	Theft	10 years	6 months	Concurrent
Total Effective Sentence:		2 years 3 months’ imprisonment
Non-Parole Period:		7 months
Pre-sentence Detention Declared:		1 day
Section 6AAA Statement:		4 years 3 months’ imprisonment with a non-parole period of 2 years 6 months

1. The applicant now seeks leave to appeal against sentence.  In view of the short non-parole period, the hearing was expedited.

Overview of facts and proceedings

1. On 16 April 2009, the victim, a lone male driver, was returning home after having dinner in St Kilda.  Whilst his car was stationary in Dalgety Lane, the applicant got into the car through the passenger door and sat down.  She started a conversation with the victim, asking whether he wanted to have a good time and explaining that she charged $120 to $180.  The victim understood this to mean for the provision of sexual services.  The applicant then telephoned her co-accused, Ryan McHenry, and told him that she was around the corner.  The victim told the applicant to get out of the car, but she produced a small silver pocket-knife, held it close to the victim’s throat, and demanded his money (count 1).  The victim tried to push the knife away and received a cut to his neck (count 2).  A struggle ensued, and McHenry, who had by this time approached the driver’s side of the car, smashed the window with a torch, shattering glass over the victim.  McHenry was armed with…