Chol v The Queen - [2012] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0119

RING CHOL	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 August 2012
DATE OF JUDGMENT	31 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 204
JUDGMENT APPEALED FROM	DPP v Ring Chol (Unreported, County Court of Victoria, Judge Tinney, 27 April 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Multiple charges of armed robbery, robbery, recklessly causing serious injury, criminal damage and attempted robbery committed over short period — Total effective sentence of five years and 10 months’ imprisonment, with non-parole period of three years and four months imposed — Whether sentence manifestly excessive — Youthful offender — Post-traumatic stress disorder — Whether sentencing judge erred by finding that type of offending was prevalent — Application for leave to appeal allowed — Appeal dismissed — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Revill & Papa Lawyers
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
WEINBERG JA:

The applicant, Ring Chol, seeks leave to appeal against the sentences imposed on him following his guilty plea in the County Court to two charges of armed robbery (charges 1 and 12), six charges of robbery (charges 2, 4, 5, 6, 13 and 14), two charges of recklessly causing serious injury (charges 3 and 15), four charges of criminal damage (charges 8 to 11) and one charge of attempted robbery (charge 7). Prior to the hearing, the parties were informed that if leave were granted, the appeal would be heard at the same time.

The offending conduct, which occurred in and around St Albans between June and July 2011, involved 11 separate incidents affecting 13 victims. All the offences were committed by the applicant in company with other younger males.[1] At the time of the offending, the applicant was 18 years old.
[1]Several of the applicant’s co-accused, who were aged between 13 and 16, were dealt with in the Children’s Court of Victoria. At the time of sentencing, the remainder of the applicant’s co-offenders had not been identified by the police.

Following a plea in mitigation, the applicant was sentenced to a total effective sentence of five years and 10 months’ imprisonment, with a non-parole period of three years and four months.

The circumstances of the offending, relevant maximum penalties, individual sentences imposed and orders for cumulation are as follows:

Count Offence Description Maximum Sentence Cumulation

1
Armed robbery

Crimes Act 1958, s 75A(1)

12 June 2011, 5.45 pm

Offenders: 6 or 7 males

Victim (Rahul Sharma) confronted by group of males when taking out rubbish. He was grabbed and fell to the ground.

25 years

Crimes Act 1958, s 75A(2)
30 months 5 months

Count Offence Description Maximum Sentence Cumulation

1 (cont)

Victim punched and kicked numerous times to face, head, upper body, back and chest while on…

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 Chol v The Queen

Details

AGLC: Chol v The Queen [2012] VSCA 204
Case: [2012] VSCA 204
Decision Date: 31 August 2012

CaseChat Overview and Summary

The Chol case involved an applicant appealing against his sentence following a series of offences, including armed robbery, robbery, recklessly causing serious injury, criminal damage, and attempted robbery. The applicant, Chol, was sentenced to a total effective term of five years and 10 months imprisonment, with a non-parole period of three years and four months. The case was heard in the High Court of Australia, which was asked to decide whether the sentence was manifestly excessive and if the sentencing judge had erred in their assessment of the nature of the offending.

The primary legal issue was whether the sentence imposed by the sentencing judge was manifestly excessive. This involved considering the totality of the offending and the principles of sentencing, particularly in relation to the nature of the crimes committed and the personal circumstances of the offender. Another significant issue was whether the sentencing judge erred in their characterisation of the offending as prevalent, which could have implications for the sentence imposed.

The Court examined the totality of the offending, taking into account the nature and number of the crimes committed by the applicant. The Court found that while the sentence was severe, it was not manifestly excessive given the seriousness of the offending. The Court also considered the personal circumstances of the applicant, including his youth and the impact of post-traumatic stress disorder. However, the Court concluded that the sentencing judge did not err in their assessment of the nature of the offending, as the crimes committed were indeed prevalent. As a result, the application for leave to appeal was allowed but the appeal itself was dismissed as there was no point of principle of general application that warranted the Court’s intervention.

The final orders of the Court were to allow the application for leave to appeal but to dismiss the appeal itself, with no point of principle identified. The original sentence imposed by the sentencing judge was therefore upheld.

Orders