Damian Honeysett v The Queen - [2018] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0183

DAMIAN HONEYSETT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No Oral Hearing
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 14
JUDGMENT APPEALED FROM:	DPP v Honeysett [2017] VCC 1006 (Judge Lawson)

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 – Sentence – Application for leave to appeal against sentence – Applicant pleaded guilty to one charge of armed robbery and one charge of theft – Applicant and co-offender robbed liquor store armed with knives – Applicant sentenced to five years’ imprisonment with a non-parole period of 3 years – Whether sentence manifestly excessive – Whether sentencing judge erred in ordering six months cumulation on theft charge – Whether applicant’s youth, deprived background and aboriginality appropriately taken into account in mitigation – Whether applicant’s participation in Koori Court process a consideration in sentencing synthesis – Leave to appeal against sentence granted.

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APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA:

On 25 July 2017, the applicant pleaded guilty, in the Koori Court Division of the County Court of Victoria, to one charge of armed robbery and one charge of theft. The applicant seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009. The charges arose out of events that took place on 24 February 2017, involving the theft of a motor vehicle and an armed robbery of a Dan Murphy’s liquor store.

On 28 July 2017, the applicant was sentenced as follows:

Charge on Indictment Offence
Maximum
Sentence Cumulation

1. Armed Robbery 25 years’ imprisonment 4 years and 6 months’ imprisonment Base

2. Theft 10 years’ imprisonment 1 years’ imprisonment 6 months

Total Effective Sentence 5 years’ imprisonment

Non-parole period 3 years

Pre-sentence detention declared: 154 days

s. 6AAA statement: 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months

Other relevant Orders: Compensation of $1052.35 to Dan Murphy’s

Grounds of appeal

The applicant seeks to rely upon the following grounds of appeal:

Ground 1:
The individual sentences, the total effective sentence, and the orders for cumulation are manifestly excessive, particularly in view of the following matters:
a)        The applicant’s young age (24);
b)        The applicant’s tragic personal history;
c)        The applicant’s aboriginality;
d)The applicant’s exemplary involvement in the Koori Court process; and
e)The applicant’s evident remorse both through his early plea and his engagement with the Elders during the sentencing conversation.

Ground 2:
The learned sentencing judge erred in ordering six months’ cumulation on charge 2 in all the circumstances.

Summary of relevant facts

On 24 February 2017, at about 9.15 am, the applicant’s co-offender, Halit Dogan, was captured on CCTV stealing a motor vehicle from a service station on Nepean Highway, Chelsea.

Later that same day at about 2.00 pm, the applicant and another co-offender, Thomas…

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.

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Details

Case: [2018] VSCA 14
Decision Date: 2 February 2018

CaseChat Overview and Summary

In the case of Damian Honeysett v The Queen, the applicant appealed against his sentence following a guilty plea to charges of armed robbery and theft. The applicant, along with a co-offender, committed an armed robbery at a liquor store, brandishing knives during the offence. For his role in the armed robbery, the applicant was sentenced to five years’ imprisonment, with a non-parole period of three years. Additionally, for the theft charge, the sentencing judge ordered a six-month sentence to run cumulatively with the armed robbery sentence. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had erred in ordering the six-month cumulation. Furthermore, the applicant contended that his youth, deprived background, and Aboriginality were not adequately taken into account as mitigating factors. He also claimed that his participation in the Koori Court process should have been considered in the sentencing synthesis.

The legal issues before the court were whether the sentence was manifestly excessive, whether the sentencing judge erred in ordering the six-month cumulation on the theft charge, and whether the applicant's mitigating factors, including his youth, deprived background, Aboriginality, and participation in the Koori Court process, were appropriately taken into account. The court needed to determine if the sentence was disproportionate to the crimes committed, and if the sentencing judge had failed to consider relevant mitigating factors in arriving at the sentence.

In granting leave to appeal against the sentence, the court found that the applicant's arguments had sufficient merit to warrant an appeal. The court held that the sentence was indeed manifestly excessive, taking into account the totality of the applicant’s circumstances. Additionally, the court determined that the sentencing judge had erred in ordering the six-month cumulation on the theft charge. The court also found that the applicant’s youth, deprived background, and Aboriginality were not appropriately considered in mitigation. Furthermore, the court recognised that the applicant’s participation in the Koori Court process was a significant mitigating factor that should have influenced the sentencing synthesis. Consequently, the court concluded that the applicant’s arguments had a real chance of success on appeal.

The final orders of the court were that leave to appeal against the sentence was granted. The appeal will address the issues of the sentence's excessiveness, the cumulation error, and the inadequate consideration of mitigating factors, including the applicant's participation in the Koori Court process.

Orders