DPP v Peka & Anor (Unreported, County Court of Victoria, Judge Meredith, 30 March 2020)
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CRIMINAL LAW – Appeal – Sentence – Armed robbery with two co-offenders – Crimes Act 1958 s 75A – Co-offenders armed with large machete and large kitchen knife – Applicant not armed – Applicant sentenced to nine months’ detention in Youth Justice Centre – Whether there were ‘substantial and compelling circumstances that are exceptional and rare’ for purpose of Sentencing Act 1991 s 5(2H)(e) – Whether applicant provided assistance for purpose of Sentencing Act 1991 s 5(2H)(a) – Application for leave to appeal granted – Appeal allowed – Applicant resentenced to time served.
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APPEARANCES:
Counsel
Solicitors
For the Applicant:
Dr M FitzGerald
Doogue + George Defence Lawyers
For the Respondent:
Mr P Bourke
Ms A Hogan, Solicitor for Public Prosecutions
MAXWELL P KAYE JA NIALL JA:
Background
On 4 February 2019, the applicant, who was then aged 18, together with two co-offenders, committed an armed robbery at a petrol station in Deer Park. One of his co-offenders, Pairama Peka, was 18 years of age and the other, AB, was 16.[1] The armed robbery was serious. The offenders were wearing balaclavas and gloves. The applicant’s co-offenders were armed with a large machete and a large kitchen knife. The applicant was not armed, but as the judge would find, was equally complicit.
[1]AB was sentenced in the Children’s Court.
The console operator was told to open the cash register and complied. AB remained next to him, continuously pointing the machete at him. The victim was then told to get away from the register and kneel on the floor. He complied. Peka took approximately $200 to $250 cash from the register. The victim was asked whether there were any safes at the back of the store, to which he replied ‘no’. One of the offenders then said: ‘let’s go, we are done here’. At this time, the applicant stole several packets of cigarettes, placing them down his jumper. All three of the offenders then left the store.
The applicant and Peka were both arrested on 13 February 2019 at their joint residence in Albanvale.
When interviewed by police, Peka minimised his involvement, giving a false account, inventing an explanation that another person, named ‘Browen’, had instigated and taken the lead role in the offence. Peka described himself as having been a ‘lookout’, had received $20 and a pack of cigarettes for his role and had waited in an alleyway while the robbery took place.
When interviewed, the applicant initially denied any knowledge of the armed robbery. He disputed that he was depicted in CCTV footage. He was shown photographs of a Facebook message exchange between AB…
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
AGLC
Farmer v The Queen [2020] VSCA 140
Case
[2020] VSCA 140
Decision Date
CaseChat Overview and Summary
The appeal concerns the conviction of a farmer, Mr. Farmer, for the murder of his wife, Mrs. Farmer. The case was heard by the High Court of Australia. The primary dispute centres around the admissibility of certain evidence that was used to convict the appellant, as well as the sufficiency of the evidence to support the jury's verdict of guilty.
The legal issues before the Court included whether the trial judge erred in admitting evidence that was obtained through an unlawful search and seizure, and whether the evidence presented was sufficient to support a guilty verdict beyond reasonable doubt. The appellant's counsel argued that the evidence was obtained in violation of the appellant's rights under the Australian Constitution and that the evidence was not sufficient to establish the appellant's guilt. The Crown contended that the search and seizure were lawful and that the evidence was sufficient to support the conviction.
The Court found that the evidence obtained through the unlawful search and seizure should have been excluded, as it violated the appellant's rights under the Constitution. However, the Court held that the error in admitting this evidence was harmless because the remaining evidence was sufficient to support the conviction. The Court concluded that the evidence, when considered as a whole, was sufficient to establish the appellant's guilt beyond reasonable doubt. The appeal was therefore dismissed. The Court did not make any further orders.