CRIMINAL LAW – Sentence – Multiple robberies of a single victim by brothers who were not co-offenders – Whether parity principle applied – Whether appellant and brother were involved in a common criminal enterprise – Jimmy v R (2010) 269 ALR 115 considered – Whether the broad principle of equal justice required some relativity between the sentences imposed on the appellant and his brother – Relevance of brother’s sentence to re-sentencing of the appellant where brother’s sentence was inadequate – Appellant re-sentenced
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APPEARANCES:
COUNSEL
SOLICITORS
For the Appellant
Mr G Hughan
Casey Criminal Law
For the Crown
Mr G J C Silbert SC
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA:
BONGIORNO JA:
The appellant pleaded guilty in the County Court to one rolled up count of robbery involving five instances of robbery (count 1), one count of false imprisonment (count 2), and one further count of robbery (count 3). He was sentenced to two years’ imprisonment on count 1, one year’s imprisonment on count 2 and 18 months’ imprisonment on count 3. Four months of the sentence imposed on count 2 and eight months of the sentence imposed on count 3 were ordered to be served cumulatively on the sentence imposed on count 1 and on each other, making a total effective sentence of three years’ imprisonment. The sentencing judge fixed a non-parole period of 21 months.
The appellant, having been granted leave, appealed against the individual sentences imposed on counts 1 and 3, the orders for cumulation and the non-parole period fixed, in strict accordance with the approach now laid down in Ludeman v R.[1] His primary argument was that these sentences were not sufficiently disparate from the sentences imposed on his brother Matthew for similar offending involving the same victim.
The facts of the appellant’s offending are not in dispute, and need only be briefly stated. The victim of all of the offences was one PG, a man introduced to the appellant (and his brother Matthew) by the appellant’s father. On five occasions between 16 February 2006 and 27 September 2007 the appellant robbed PG of his ATM card and withdrew various amounts from ATMs and, on one occasion, used the card to pay for a taxi. The total amount stolen over these five occasions was $3935.70,[2] and this was the conduct the subject of count 1. The sentencing judge acted upon the victim’s statement that the appellant would raise his voice, yell at him, make threatening gestures with a clenched fist and raise his arms as though he was going to hit him.[3]
[2]The total amount that…
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
Farrugia v The Queen [2011] VSCA 24
Case
[2011] VSCA 24
Decision Date
CaseChat Overview and Summary
The appellant, Farrugia, and his brother were convicted of robbing the same victim on two separate occasions. The brother's sentence was lower than the appellant's, prompting the latter to appeal against his sentence. The appeal was heard by the High Court of Australia. The central legal issue in this case was whether the principle of parity in sentencing should apply in cases where the same victim is robbed multiple times by different offenders, who were not co-offenders. The court needed to determine whether the appellant and his brother were involved in a common criminal enterprise, and whether the broad principle of equal justice required some relativity between the sentences imposed on them.
The court considered the principle of parity in sentencing as outlined in the case of Jimmy v R. It examined whether the appellant and his brother were part of a common criminal enterprise, and whether the appellant's sentence should be relative to his brother's sentence. The court held that the principle of parity in sentencing should apply in this case, as the appellant and his brother were not co-offenders but were involved in a series of robberies against the same victim. The court found that the broad principle of equal justice required some relativity between the sentences imposed on the appellant and his brother, and that the appellant's sentence should be proportionate to the seriousness of his crimes, as well as the sentence imposed on his brother. The court ultimately decided that the appellant's sentence was inadequate and re-sentenced him accordingly.
In light of the above, the High Court of Australia set aside the appellant's original sentence and imposed a new sentence that was proportionate to the seriousness of the crimes committed and the sentence imposed on the appellant's brother. The court emphasised the importance of ensuring that the principle of equal justice was upheld in all sentencing decisions, and that sentences should be proportionate to the crimes committed. This decision highlights the need for courts to carefully consider the principle of parity in sentencing, particularly in cases where multiple offenders are involved in a series of crimes against the same victim.