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Comer v The King

Comer v The King

Case [2025] VSCA 8 14 February 2025

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0138

JASON WAYNE COMER	Applicant
v
THE KING	Respondent

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JUDGES:	ORR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 8
JUDGMENT APPEALED FROM:	[2024] VCC 1006 (Judge Tinney)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal – Sentence – Armed robbery – Applicant threatened customer service officers at bank with sawn-off rifle – Applicant had committed 20 armed robberies in the past – Applicant showed no remorse – Applicant sentenced to 13 years’ imprisonment – Whether sentence manifestly excessive in light of current sentencing practices and more lenient sentences imposed on applicant in the past – Sentence not manifestly excessive – Leave to appeal refused.

Crimes Act 1958 s 75A.

DPP v Currie [2021] VSCA 272; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Gardner & Coates [2004] VSCA 119; DPP v Lanciana [2021] VCC 1252; DPP v Stevens [2013] VSCA 187; Hudson v The Queen (2010) 30 VR 610; Lord v The Queen [2018] VSCA 52; Mansfield v The Queen [2011] VSCA 290; Surtees v The King [2023] VSCA 42.

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Counsel for written submissions
Applicant:		Mr NA Hutton SC
Respondent:		Mr J Kaye
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA:

The applicant seeks leave to appeal his sentence for a single count of armed robbery,[1] committed at the Bendigo Bank branch in Geelong West on 30 April 2021.
[1]Contrary to s 75A of the Crimes Act 1958.
On 3 July 2024, following a trial by jury in the County Court at Geelong, the applicant was sentenced to 13 years’ imprisonment, with a non-parole period of 10 years.[2] The maximum penalty for armed robbery is 25 years’ imprisonment.
[2]The applicant was also sentenced on this date for three related summary offences, to which he had pleaded guilty. Two were for driving as a learner driver without an experienced driver alongside, contrary to reg 47(2) of the Road Safety (Drivers) Regulations 2019 (as at 26 April 2021), and the third was for travelling on a flight using an air passenger ticket obtained using false identification information, contrary to s 376.4(2) of the Criminal Code (Cth). The sentences for these offences do not form part of this application.
The sole proposed ground of appeal is that the sentence imposed is manifestly excessive, having regard to certain matters. Those matters are: the case of Mansfield v The Queen,[3] in which an armed robber was sentenced to 14 years’ imprisonment, can be distinguished from the applicant’s case; current sentencing practices demonstrate that the applicant’s sentence is an outlier; although the applicant had multiple prior convictions for armed robbery, including in similar…

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 Comer v The King

Details

AGLC: Comer v The King [2025] VSCA 8
Case: [2025] VSCA 8
Decision Date: 14 February 2025

CaseChat Overview and Summary

The case of Comer v The King was an application for leave to appeal against the sentence imposed on the applicant for armed robbery. The applicant had threatened customer service officers at a bank with a sawn-off rifle and had a history of 20 armed robberies. The applicant showed no remorse for his actions. The sentence imposed was 13 years’ imprisonment. The issue before the court was whether the sentence was manifestly excessive in light of current sentencing practices and the more lenient sentences imposed on the applicant in the past. The court considered relevant case law and the principles of sentencing for armed robbery.
The court found that the sentence was not manifestly excessive. The court considered the seriousness of the offence, the applicant's criminal history, and the need to deter the applicant and others from committing similar offences. The court also considered the principle of proportionality and the need to ensure that the sentence reflected the culpability of the applicant. The court found that the sentence was within the range of sentences that could be imposed for the offence and was not manifestly excessive. The court refused leave to appeal. The court noted that the applicant had shown no remorse and had a history of violent offending. The court also noted that the sentence reflected the seriousness of the offence and the need to deter the applicant and others from committing similar offences. The court found that the sentence was not manifestly excessive and was proportionate to the offence committed. The court refused leave to appeal.

Orders