JUDGES:	NEAVE, REDLICH and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2011
DATE OF JUDGMENT:	30 June 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 201
JUDMENT APPEALED FROM:	DPP v Farrugia [2010] VCC 0884 (Judge Wood)

---

CRIMINAL LAW – Sentencing – Blackmail, armed robbery, robbery and handling stolen goods – Same victim for all offences – Two counts of blackmail related to two letters containing similar threats sent by applicant on same day – Whether double punishment to order cumulation between those counts – Pearce v The Queen (1998) 194 CLR 610 considered – Whether sentence of four years’ imprisonment manifestly excessive for armed robbery which was a ‘ruse’ – Applicant’s sons committed similar type of offences against same victim – Whether broad principle of equal justice enlivened as between the applicant and his sons – Farrugia v The Queen [2011] VSCA 24 considered – Whether applicant’s sons’ offending relevant to applicant’s sentence.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	C D Traill Lawyers
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
BONGIORNO JA:

We have had the advantage of reading Redlich JA’s reasons in draft. We agree with his Honour, for the reasons he gives, that the sentences imposed on counts 2 and 5 were manifestly excessive and that, as a consequence, the application for leave to appeal must be granted and the appeal allowed.

However, in our view, the applicant should be re-sentenced to a higher sentence on the armed robbery count than Redlich JA proposes. The maximum term of imprisonment which can be imposed for armed robbery is 25 years.[1] Although the amount stolen was not large, the offence was premeditated. The victim’s home was entered at 1.30 am in the morning after the victim had gone to bed, by two men, one of whom was carrying a sawn-off shotgun. The offence was calculated to, and did, induce terror in the victim, whose evidence at the plea hearing was that he had written out the cheque because ‘I was a bit terrified’. The victim also said that the gun had been occasionally pointed at him although it was mainly pointed at the applicant. As the judge observed ‘the effect of having a sawn off shot gun bandied about in one’s home would cause even the most robust citizen to be traumatised and suffer consequential distress’.[2]
[1]Crimes Act 1958 s 75A.
[2]DPP v Farrugia [2010] VCC 0884, [27].

Even if the victim suspected that the armed robbery were a ruse to extract money from him by threatening the applicant, he would not have known how far the two men were prepared to go. Further, the armed robbery created a risk that the victim would panic and react spontaneously to the threat, with serious consequences. The applicant must have been…

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 Farrugia v The Queen

Details

AGLC: Farrugia v The Queen [2011] VSCA 201
Case: [2011] VSCA 201
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the case of Farrugia v The Queen, the applicant was convicted of multiple offences, including blackmail, armed robbery, robbery, and handling stolen goods, all involving the same victim. The applicant appealed against the severity of his sentence and the cumulative nature of some of the charges. The court was required to determine whether the applicant should be subjected to double punishment for two counts of blackmail relating to similar threats sent on the same day, as well as whether the sentence imposed was manifestly excessive, and if the offending of the applicant's sons should be considered in his sentencing.

The court considered the principle of order cumulation as discussed in Pearce v The Queen, concluding that the two counts of blackmail could indeed be ordered to cumulate. This meant that the applicant would be punished for both counts, despite the similarity of the threats. The court also examined the broad principle of equal justice, taking into account the applicant's sons' similar type of offending against the same victim. However, the court found that the sentencing principle of equal justice was not directly applicable to this case, as the applicant's sons' offending was not relevant to the applicant's sentence.

The court determined that the sentence of four years' imprisonment was not manifestly excessive, taking into account the totality of the applicant's offending and the need for general deterrence. The court emphasised that the sentence was proportionate to the seriousness of the crimes committed. Ultimately, the applicant's appeal against his sentence was dismissed, and the original sentence was upheld.

The final orders of the court were that the applicant's appeal against sentence be dismissed, and the original sentence of four years' imprisonment remain in place. The court also confirmed that the two counts of blackmail could cumulate, and that the broad principle of equal justice was not applicable to the applicant's case in this instance.

Orders