C A v The Queen - [2012] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0067

C A
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and MANDIE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2012
DATE OF JUDGMENT:	10 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 199
JUDGMENT APPEALED FROM	DPP v [C A] (Unreported, County Court of Victoria, Judge Mullaly, 27 February 2012)

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CRIMINAL LAW – Appeal – Sentence – Recklessly cause serious injury, armed robbery, false imprisonment, threat to kill – Total effective sentence 5y 9m, non-parole period 3y 9m – Offences committed on parole – Parole cancelled – Full parole sentence served – Totality – Whether judge took into account service of parole sentence – Whether sentence manifestly excessive – R v Renzella [1997] 2 VR 88 distinguished, DPP v Dickson [2011] VSCA 222 applied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich	Ms Melinda Walker
For the Respondent	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
MANDIE JA:

Following a trial in the County Court, the applicant was convicted on 27 February 2011 of one count each of recklessly causing serious injury, armed robbery, unlawful imprisonment and making a threat to kill. The applicant was sentenced as set out in the following table:

Charge on Indictment Offence Maximum Sentence Cumulation

2 Recklessly cause serious injury 15y 3y 9m Base

3 Armed robbery 25y 1y 6m 6m

4 False imprisonment 10y 1y 10m 9m

5 Making a threat to kill 10y 1y 10m 9m

Total Effective Sentence: 5y 9m

Non-Parole Period: 3y 9m

Pre-sentence Detention Declared: 278 days

In the early hours of 27 September 2009, the victim of these offences attempted to gain entry to the Dallas Nightclub. The applicant was performing security duties at that club and had been in the early stages of joining the Hells Angels Nomads club. The victim falsely claimed he was a member of the Hells Angels in Germany, following which he was granted entry to the nightclub.

Shortly afterwards, because the applicant and others suspected that the victim was not in fact a Hells Angels member, the victim was taken in his car to the Hells Angels clubhouse. The applicant, who travelled to the clubhouse in a separate car, agreed that the victim would be kept at the clubhouse and ‘dealt with’. Others arrived at the clubhouse, including a man referred to as ‘the old man’ who soon produced a baseball bat and hit the victim on the head, causing him to fall on the ground, where he struck him with further blows.

The applicant then told the victim to get up and pushed the end of a short wooden pole into his mouth, loosening one of his teeth. The applicant then kicked the victim in his chest, knocking him down. The ‘old man’ then robbed the victim at knife point of his wallet and phone. The victim was told that, if he went to the police,…

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 C A v The Queen

Details

AGLC: C A v The Queen [2012] VSCA 199
Case: [2012] VSCA 199
Decision Date: 10 August 2012

CaseChat Overview and Summary

The appellant, C A, appealed against his sentence imposed by the County Court, arguing that the total effective sentence was manifestly excessive. The sentence was imposed following his conviction for recklessly causing serious injury, armed robbery, false imprisonment, and threats to kill. The County Court judge sentenced him to a total effective sentence of five years and nine months, with a non-parole period of three years and nine months. The appellant argued that the judge did not take into account his service of a parole sentence, which had already been fully served, and that the sentence was therefore manifestly excessive.

The legal issues the court was required to decide were whether the judge had failed to take into account the appellant's service of a parole sentence, and whether the total effective sentence was manifestly excessive. The court noted that the appellant's service of a parole sentence should have been taken into account, but that the judge had not made an error in failing to do so. The court also noted that the sentence was not manifestly excessive, and distinguished the case from R v Renzella, applying the principles set out in DPP v Dickson.

The court held that the appellant's appeal should be dismissed. The court found that the judge had not made an error in failing to take into account the appellant's service of a parole sentence, and that the sentence was not manifestly excessive. The court held that the sentence was appropriate in all the circumstances, and that the appeal should be dismissed. The court noted that the appellant had committed serious offences while on parole, and that the sentence reflected the seriousness of the offences.

No further orders were made.

Orders