E L J v The Queen
[2012] VSCA 70
•16 April 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0015 |
| ELJ |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, BONGIORNO and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 April 2012 | |
DATE OF JUDGMENT/ORDER: | 16 April 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 70 | |
JUDGMENT APPEALED FROM: | [2011] VSC 669 (Coghlan J) | |
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CRIMINAL LAW – Sentence – Unintentional killing in the course or furtherance of a crime of violence – Youthful offender – Rehabilitation – Gravity of offence – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Dempsey | Victoria Legal Aid |
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
On 2 January 2010, the applicant, then aged 15 years, met a friend, MRN. The pair went to a park in Yarraville near the applicant’s home. The applicant was armed with a folding knife.
Nitin Garg, an Indian who was in Australia on a student visa, walked past the applicant and his friend, talking on a mobile phone. Mr Garg was on his way to a Hungry Jack’s store where he worked as a shift manager.
MRN commented to the applicant, ‘That bloke’s phone is nice’.
The applicant removed a long sleeved jumper he was wearing, wrapped it round his head to conceal his face, took the knife in his hand and ran towards Mr Garg, pulling out the blade from the handle.
As the applicant approached the victim from behind with the knife held up, he demanded, ‘Give me your phone now’. Mr Garg turned around to face the applicant and grabbed him by the forearm. At that point the applicant stabbed Mr Garg in the abdomen. Mr Garg ran away from the applicant. MRN ran up to the applicant who said, ‘I don’t know if I got him’.
The mobile phone held by Mr Garg was dropped and broke. Mr Garg managed to get to the Hungry Jack’s store. There, he collapsed. He was taken to hospital and was operated on but died the next day.
MRN and the applicant discovered the following day that Mr Garg had died but the applicant told no‑one of his part in Mr Garg’s death.
In May 2010, MRN confided to the father of a friend that he had been present when Mr Garg had been attacked. As a result, MRN spoke to the police and made a statement implicating the applicant in the murder and attempted armed robbery of Mr Garg. A listening device was installed in the applicant’s home. The conversations recorded by the device disclosed that the applicant attempted to conceal his guilt and exhibited a degree of callous indifference to the victim’s death. The sentencing judge described this as the bravado of youth.
The applicant was arrested and made a no comment record of interview.
The applicant was charged with attempted armed robbery and murder pursuant to s 3A of the Crimes Act1958. The section provides that a person who unintentionally causes the death of another by an act of violence done in the course of a crime which is one of violence and for which the offender may be sentenced to imprisonment for a term of ten years or more, is liable to be convicted of murder as though he had killed the victim intentionally.
The applicant was arraigned in the Supreme Court and pleaded guilty to a presentment containing one count of murder pursuant to the provisions of s.3A and a count of attempted armed robbery.
A plea was conducted and the applicant was sentenced to be imprisoned for a term of 13 years on the count of murder and for a term of two and a half years on the count of attempted armed robbery. The sentencing judge ordered that the sentences be served concurrently. A non‑parole period of eight years was fixed. The sentencing judge recommended that arrangements be made for the applicant to serve his sentence in a youth facility.
The applicant was in secondary school when he was arrested. He was remanded in custody and continued his education while in prison by distance education. A report by a psychologist was tendered in the course of the plea. The psychologist said that the applicant was somewhat immature and did not yet appreciate at an emotional level the enormity of the offence he had committed. A number of references attesting to the applicant’s good character were also tendered.
The applicant seeks leave to appeal against his sentence. The sole ground of the application is that the head sentence and the non‑parole period are manifestly excessive when regard is had to the applicant’s extreme youth, his plea of guilty and the unintentional nature of the offence.
The sentencing judge was alive to each of the mitigating factors upon which the applicant could rely. His Honour referred to the early plea of guilty, although he noted that, if the applicant had assisted the authorities in resolving the case earlier, the grief of the victim’s family may have been abated. The sentencing judge also referred to the fact that the applicant had loving, supportive parents, that he was remorseful with good prospects of rehabilitation, the crime was spontaneous and, of course, the applicant’s youth.
Counsel for the applicant sought to compare the sentence imposed upon the applicant with sentences imposed on other offenders. There appeared to be so few cases involving s 3A that they are of little help as precedents. In any event, the exercise upon which counsel embarked is more like a mathematical exercise than an instinctive synthesis of all the circumstances peculiar to this offence and this offender and relevant sentencing considerations.
The youth of an offender, particularly a first offender like the applicant, is a primary consideration for a sentencing court. Rehabilitation is most important. See generally R v Mills [1998] 4 VR 235. On the other hand the gravity of the offence may be such as to give prominence to the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community. As those considerations become more significant, the weight to be attached to youth is correspondingly reduced. See R v Azzopardi [2011] VSCA 372.
In the present case, I am of the opinion that the crimes were grave indeed. The applicant, armed with a knife, killed an unarmed man in the course of robbing him of a mobile phone. The crimes were not so grave and the applicant’s prospects of rehabilitation were not so reduced as to all but extinguish the mitigatory consideration of youth. On the other hand, that consideration was reduced to an appreciable extent by the gravity of the offences.
I think that the balance struck by the sentencing judge was appropriate, or at
least it was not a balance that a reasonable sentencing judge could not have struck. The question for a member of this Court is not whether he or she would have imposed the same sentence if sitting at first instance. Rather, the question is whether the sentence was within the exercise of a reasonable sentencing discretion.
In my opinion the sentence answered that description. Accordingly, I would dismiss the application for leave to appeal against sentence.
NEAVE JA:
I agree.
BONGIORNO JA:
I agree.
BUCHANAN JA:
The order of the Court is that the application is dismissed.
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