Driver v The Queen - [2012] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0082

MARTIN DRIVER

THE QUEEN

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JUDGES:	BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2012
DATE OF JUDGMENT:	26 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 242
JUDGMENT APPEALED FROM:	R v Driver (Unreported, County Court of Victoria, Judge Taft, 25 August 2011)

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CRIMINAL LAW – Sentencing – Multiple charges including theft, armed robbery on bank, intention to commit armed robbery and firearm offences – Whether TES of eight years and six months’ imprisonment with non-parole period of six years manifestly excessive – Applicant with no prior convictions with good prospects of rehabilitation – Whether judge required to take into account statutory re-characterisation of offence of possession of unregistered handgun, and reduction in penalty, since commission of offence – R v Ronen (2006) 161 A Crim R 300, R v Bowen [2008] VSCA 33 and R v Grenfell (2009) 196 A Crim R 145 considered – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	C Marshall & Associates
For the Crown	Mr C J Ryan SC	Mr C Hyland Solicitor for Public Prosecutions

BUCHANAN JA:

I invite Nettle JA to deliver the first judgment.

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of eight years and six months' imprisonment with a non‑parole period of six years imposed on the applicant on pleading guilty to one charge of theft, one charge of being a non prohibited person in possession of a registered long arm without being licensed, one charge of shortening the barrel of a rifle, one charge of armed robbery, two charges of incitement to commit armed robbery and one charge of possession of an imitation unregistered general category handgun.

Charge

Offence

Maxpen

Sentence

Cumulation

1.

Theft

10 years’ imprisonment

12 months’ imprisonment

3 months

2.

Possessing a registered category A longarm without being the holder of a licence

120 penalty units/ 2 years’ imprisonment

6 months’ imprisonment

2 months

3.

Shortening the barrel of a longarm

240 penalty units/4 years’ imprisonment

6 months’ imprisonment

4 months

4.

Armed robbery

25 years’ imprisonment

5 years 6 months’ imprisonment

Base

5.

Incitement to commit armed robbery

25 years’ imprisonment

3 years’ imprisonment

12 months

6.

Incitement to commit armed robbery

25 years’ imprisonment

3 years’ imprisonment

12 months

7.

Possessing an unregistered general category handgun

600 penalty units/ 7 years’ imprisonment

6 months’ imprisonment

3 months

TES

8 years 6 months imprisonment

NPP

6 years

S 6AAA Declaration: 10 years and 9 months’ imprisonment with NPP of 8 years.

The facts

Around June 2010, the applicant, who was then a man of 51 years of age without prior convictions, began to plan an armed robbery. He was aware that a local farmer stored on old bolt action .22 calibre rifle in the roof area of his stables and he removed the weapon from the property…

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 Driver v The Queen

Details

AGLC: Driver v The Queen [2012] VSCA 242
Case: [2012] VSCA 242
Decision Date: 26 September 2012

CaseChat Overview and Summary

The appellant was convicted of multiple charges, including theft, armed robbery at a bank, the intention to commit armed robbery, and firearm offences. The appellant appealed against the sentence imposed, arguing that the total effective sentence of eight years and six months’ imprisonment, with a non-parole period of six years, was manifestly excessive. The appeal centred on whether the trial judge was required to consider the statutory re-characterisation of the offence of possession of an unregistered handgun and the reduction in penalty that occurred after the offence was committed.

The court considered whether the trial judge erred by not taking into account the re-characterisation of the offence and the subsequent reduction in penalty. The court referred to several precedents, including R v Ronen, R v Bowen, and R v Grenfell, which emphasised the importance of considering the penalty at the time of sentencing. The court concluded that the trial judge erred by not considering the reduced penalty, and this constituted a significant and substantial error affecting the fairness of the sentence.

The appeal was allowed, and the matter was remitted to the trial judge for resentencing. The court emphasised that the trial judge should consider the penalty for the offence of possession of an unregistered handgun as it stood at the time of sentencing, which was a lower penalty than that applied by the trial judge. The court did not set aside the convictions but remitted the matter to the County Court for the appellant to be re-sentenced.

The court did not specify the final orders but directed that the appellant be re-sentenced by the County Court, taking into account the reduced penalty for the offence of possession of an unregistered handgun. The convictions were upheld, and the matter was remitted for resentencing.

Orders