Camblin v The Queen - [2013] VSCA 1

SUPREME COURT OF VICTORIA

COURT OF APPEAL

CRAIG MATTHEW CAMBLIN	S APCR 2012 0197
	v
THE QUEEN

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JUDGE:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 January 2013
DATE OF JUDGMENT:	17 January 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 1
JUDGMENT APPEALED FROM:	R v Camblin (Unreported, County Court of Victoria, 13 August 2012, Judge Gullaci)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed Robbery – Sentence of 6 years imprisonment with non-parole period of 4 years – Whether sentence imposed reflects judge’s expressed intention with respect to non-parole period – Whether sentence and non-parole period manifestly excessive – Leave refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T B Ashton	Law Offices of Ellinghaus & Lindner
For the Crown	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

WHELAN JA:

The applicant seeks leave to appeal a sentence imposed on him by Judge Gullaci in the County Court on 13 August 2012. The applicant pleaded guilty to one count of armed robbery. The applicant was sentenced to six years’ imprisonment, with a non‑parole period of four years. The maximum penalty for armed robbery is 25 years’ imprisonment.

The armed robbery in question took place on the morning of Friday, 27 January 2012. The applicant robbed a pharmacy which he had previously attended as a customer. At the time of the robbery, he was wearing a beanie which had been fashioned into a balaclava‑like disguise, with eyeholes cut into it, and a hooded top. He was armed with a carving knife.

He attended the pharmacy and approached a staff member there, demanding money. He had the carving knife in his hand when he did so. He fled after being given money and was apprehended in the carpark.

The applicant seeks leave to appeal on two proposed grounds.

The first proposed ground is that the sentence imposed does not reflect what is said to have been the sentencing judge’s expressed intention with respect to the non‑parole period. The submission is that in his sentencing remarks, the judge had said that the applicant would benefit from ‘a relatively lengthy period of parole’. It is submitted that a non‑parole period of four years on a six‑year sentence does not provide for a relatively lengthy period of parole and that the judge has not given effect to his stated intention. The applicant conceded that a non‑parole period of four years on a six‑year sentence is well within the permissible sentencing range.

What the judge actually said was that he found the applicant would benefit from a relatively long period of parole and that in considering the minimum term and in fixing that term, he kept in mind a number of matters, of which that was one. I do not consider that there was any failure to give effect to a stated intention. In the circumstances here, two years could properly be seen as a relatively…

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 Camblin v The Queen

Details

AGLC: Camblin v The Queen [2013] VSCA 1
Case: [2013] VSCA 1
Decision Date

CaseChat Overview and Summary

The Supreme Court of Victoria's Court of Appeal heard an application from Craig Matthew Camblin for leave to appeal against his sentence, which was imposed by Judge Gullaci in the County Court on 13 August 2012. Camblin pleaded guilty to armed robbery and was sentenced to six years' imprisonment, with a non-parole period of four years. The maximum penalty for armed robbery is 25 years' imprisonment. Camblin sought leave to appeal on the grounds that the sentence did not reflect the judge's expressed intention with respect to the non-parole period and that both the sentence and the non-parole period were manifestly excessive.

The court found that the first proposed ground was not reasonably arguable, as the judge had clearly considered the applicant's prospects of rehabilitation and the need for specific deterrence and community protection. The court also found that the second proposed ground was not arguable, as the sentence was not manifestly excessive. The court emphasised that it would be a rare case in which the Court would be persuaded that what a judge did with respect to a non-parole period simply did not give effect to that judge's stated intention. Furthermore, the ground of manifest excess is a difficult one to make good, and the court would only interfere on this ground where the sentencing judge has gone obviously or badly wrong.

In conclusion, the application for leave to appeal was refused. The court found that the sentencing judge had carefully considered all the matters properly advanced on the applicant's behalf and reached conclusions which were palpably open to him on the material. The law of Victoria commits the decision on the balance between prospects of rehabilitation and the need for specific deterrence and community protection to sentencing judges, not to the Court of Appeal.

Orders