Breuer v The Queen

Case [2011] VSCA 244


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0063

DANIELLE BREUER

Applicant

v

THE QUEEN

Respondent

---

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)

---

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.

---

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…

Continue reading Breuer v The Queen

Sign in free to access the full text

Details
AGLC
Breuer v The Queen [2011] VSCA 244
Case
[2011] VSCA 244
Decision Date

CaseChat Overview and Summary

Breuer was the applicant in the High Court, contesting the sentence he received following a conviction for attempted armed robbery, recklessly causing injury, and theft. Breuer sought leave to appeal against his sentence of two years and three months’ imprisonment, with a non-parole period of seven months. The case arose from a joint criminal enterprise with another individual, who was later sentenced by the same judge to a harsher sentence of three years and nine months’ imprisonment, with a non-parole period of two years and three months. The applicant argued that the disparity in sentencing breached the parity principle, and that exceptional circumstances justified suspending his sentence.

The primary legal issues the court had to address were whether the sentencing disparity breached the parity principle and whether exceptional circumstances existed that warranted a suspension of the applicant’s sentence. The court examined the principles of sentencing proportionality and the need for consistency in sentencing within the same judicial district. It also considered the specific circumstances of the applicant’s case, including his background, the nature of his involvement in the crime, and any mitigating factors.

In rejecting the appeal, the court found that the sentencing disparity did not breach the parity principle, as the differences in the sentences could be attributed to the varying roles and culpability of the co-offenders. The court also held that the judge was entitled to find no exceptional circumstances existed to justify suspending the applicant’s sentence. The decision to impose a non-parole period was deemed appropriate, considering the nature of the offences and the need for general deterrence. The court further noted that the judge had moderated the sentence in line with the principles set out in R v Verdins.

The High Court refused the application for leave to appeal against the sentence. This decision affirmed the original sentencing and upheld the judge’s discretion in imposing a sentence that balanced the principles of proportionality, deterrence, and the specific circumstances of the case.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.