CRIMINAL LAW – Appeal – Sentence – Armed robbery – Youthful offender with no prior convictions – Sentenced to 26 months’ imprisonment with non-parole period of 12 months – Whether judge mischaracterised seriousness of offence – Whether judge erred in application of s 5(2H) of the Sentencing Act 1991 – Whether sentence manifestly excessive – Appeal allowed – Applicant resentenced to nine months’ imprisonment.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J R Murphy
Chester Metcalfe & Co
For the Respondent
Mr J C J McWilliams
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA BEACH JA:
Introduction
On 21 May 2021, the applicant, now aged 23 years,[1] pleaded guilty before a judge in the County Court to an armed robbery[2] that had been committed on 26 August 2019.
[1]His date of birth is 3 August 1998.
[2]Crimes Act 1958, s 75A. The maximum sentence is 25 years’ imprisonment.
The applicant had no prior convictions, but had, on 5 March 2021, incurred a subsequent conviction for armed robbery in the Magistrates’ Court — that robbery was committed on 22 September 2019 — for which he was imprisoned for four months.[3] On 10 December 2020, the applicant had also been sentenced to an aggregate term of eight months’ imprisonment for offences including robbery; attempted robbery; attempted carjacking; theft; and bail offences.
[3]An appeal against that sentence also came before the judge on 21 May 2021, but was abandoned.
Following a plea, on 26 May 2021 the judge sentenced the applicant to 2 years and two months’ imprisonment, with a non-parole period of 12 months, to be served concurrently with the sentence then being undergone.[4]
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to three years and eight months’ imprisonment, with a non-parole period of two years and four months.
The applicant now seeks leave to appeal against that sentence on three grounds:
1 The learned sentencing judge erred in characterising the objective seriousness of the offending as involving a ‘soft target’ victim.
2 The learned sentencing judge erred in his application of s 5(2H)(e) of the Sentencing Act 1991 (Vic) by:
a. Imposing a ‘balance of probabilities’ legal burden of proof on [the applicant]; and/or
b. Erroneously interpreting the statutory phrase ‘substantial and compelling reasons that are exceptional and rare’ as, relevantly, requiring consideration of the rate at which circumstances arise in the County Court.
3 The head sentence was manifestly excessive.
For the reasons that follow, we would grant leave to appeal; allow the appeal; and sentence the applicant to nine months’ imprisonment.
The offending
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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AGLC
Fariah v The Queen [2021] VSCA 213
Case
[2021] VSCA 213
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, Fariah appealed against his sentence for armed robbery. The applicant, Fariah, was found guilty of armed robbery and sentenced to 26 months’ imprisonment, with a non-parole period of 12 months. Fariah, a youthful offender with no prior convictions, argued that the sentence was manifestly excessive and that the trial judge had mischaracterised the seriousness of the offence. He contended that the trial judge failed to properly consider the principles of sentencing for first-time offenders and erred in applying section 5(2H) of the Sentencing Act 1991.
The court examined whether the trial judge mischaracterised the seriousness of the offence by imposing a lengthy sentence on a first-time offender without adequate justification. It also considered whether there was an error in the application of section 5(2H) of the Sentencing Act 1991, which mandates that the court must not impose a custodial sentence on a first-time offender unless it is satisfied that it is necessary in all the circumstances of the case. The court assessed whether the sentence was manifestly excessive, taking into account the principles of proportionality and the specific circumstances of the offence and the offender.
The High Court found that the trial judge had mischaracterised the seriousness of the offence and erred in applying section 5(2H) of the Sentencing Act 1991. The court held that the sentence was manifestly excessive and disproportionate to the nature of the offence and the offender's circumstances. Consequently, the appeal was allowed, and Fariah was resentenced to nine months’ imprisonment, reflecting a more appropriate and proportionate punishment for his crime.