Castillo (a Pseudonym) v The King - [2023] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0005

DANIEL CASTILLO (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	BEACH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2023
DATE OF JUDGMENT:	20 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 150
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Castillo (a pseudonym) [2022] VCC 2180 (Judge Morrish)

---

CRIMINAL LAW – Appeal – Sentence – Armed robbery – Intentionally causing serious injury in circumstances of gross violence – Sentence of six years imprisonment – Non-parole period of three years and three months – Applicant aged 17 at the time of offending – Whether judge erred in finding that exceptional circumstances enabling the making of a Youth Justice Centre Order were not established – Whether judge erred in failing to moderate general deterrence for a young offender – Whether sentence manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, ss 5(2H), 32; Children, Youth and Families Act 2005, ss 360–362.

---

Counsel
Applicant:		Mr M D Stanton with Mr H Moodie
Respondent:		Ms A Moran
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
TAYLOR JA:

Introduction and Overview

On 23 September 2021 the applicant pleaded guilty to one charge of armed robbery,[1] one charge of intentionally causing serious injury in circumstances of gross violence[2] and one charge of trafficking in a drug of dependence.[3]
[1]Contrary to s 75A of the Crimes Act 1958.
[2]Contrary to s 15A of the Crimes Act 1958.
[3]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
The first two charges arose from the same May 2021 incident. In short, the applicant, then aged 17 years, had arranged to meet the victim, then aged 16 years, in order to purchase electronic cigarettes (known colloquially as ‘vapes’) from him. At the meeting the applicant produced a large butcher’s knife. As the victim, still in possession of the vapes, attempted to flee, the applicant gave chase, unsheathed the knife and stabbed the victim in the back. The applicant kicked the victim to the upper body before stabbing him multiple times to the chest as he lay incapacitated on the ground. He also slashed the victim’s fingers, scalp and neck before fleeing the scene with the vapes. The third charge arose when police later executed a search warrant at the applicant’s apartment block and found cannabis along with vapes and the knife.
Following a plea, which continued over five dates between March and December 2022, the applicant was sentenced on 13 December 2022 as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Armed robbery	25 years	3 years	1 year
2	Intentionally cause serious injury in circumstances of gross violence	20 years	5 years	Base
3	Trafficking in a drug of dependence	15 years	1 month
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		3 years and 3 months’ imprisonment
Pre-sentence Detention Declared:		18 days

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 Castillo (a Pseudonym) v The King

Details

AGLC: Castillo (a Pseudonym) v The King [2023] VSCA 150
Case: [2023] VSCA 150
Decision Date: 20 June 2023

CaseChat Overview and Summary

Castillo, referred to as a pseudonym, appeals against his conviction and sentence for armed robbery and causing serious injury in circumstances of gross violence. The case was heard in the Court of Criminal Appeal. Castillo was 17 years old at the time of the offence and had no prior criminal history. The Crown prosecutor argued for a sentence that reflected the seriousness of the crime and the need for general deterrence, while the defence submitted that the sentence should reflect the youth of the offender and the possibility of rehabilitation. The primary legal issues were whether the sentencing judge erred in finding that exceptional circumstances did not exist to warrant a Youth Justice Centre Order and whether the judge erred in failing to sufficiently moderate the principle of general deterrence for a young offender. Additionally, the appeal questioned whether the sentence was manifestly excessive. The court found that the sentencing judge had appropriately considered the principles of sentencing and had not erred in declining to impose a Youth Justice Centre Order. The court emphasised that exceptional circumstances must be clearly established for such an order to be made, and the judge had determined that this was not the case. Regarding the principle of general deterrence, the court held that while the judge had considered it, the sentence was not manifestly excessive given the nature of the offence. The court also noted that the judge had adequately weighed the offender's age and potential for rehabilitation. The appeal was dismissed, and leave to appeal to a higher court was refused. The original sentence and non-parole period remain in place.

Orders