Fletcher v The Queen - [2011] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0745

JUSTIN FLETCHER	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 January 2011
DATE OF JUDGMENT	20 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 4
JUDGMENT APPEALED FROM	R v Fletcher & Or (Unreported, County Court of Victoria, Judge Wilmoth, 13 July 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant pleaded guilty to intentionally causing serious injury, armed robbery and unlawful imprisonment – Total effective sentence of six years and nine months’ imprisonment with non-parole period of three years and nine months – First co-offender initiated offending and more actively involved in commission of offences – First co-offender received same sentence as applicant – Second co-offender, who, unlike applicant, had no prior convictions, sentenced to three years detention in youth justice centre – Whether sentencing judge erred in application of parity principle – First co-offender able to rely upon R v Verdins (2007) 16 VR 269 – Parity argument in relation to first co-offender rejected – Crown concession that applicant had justifiable sense of grievance based upon undue disparity with sentence imposed upon second co-offender – Applicant re-sentenced to five years and nine month’s imprisonment with non-parole period of three years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M D Hallowes	James Dowsley & Associates
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

The applicant, Justin Fletcher, pleaded guilty in the County Court at Melbourne to a series of offences, all of which took place on 8 October 2007. A co-accused, Sean Leroy, pleaded guilty to the same offences before the same judge. The six counts to which both offenders pleaded guilty were one count of attempting to possess a drug of dependence, namely, methylamphetamine, one count of intentionally causing serious injury, one count of armed robbery, one count of theft of a motor vehicle and two counts of unlawful imprisonment.

The applicant was sentenced, in respect of the six individual counts, as follows:

COUNT OFFENCE SENTENCE CUMULATION

1 Attempt to possess a drug of dependence 3 months -

2 Intentionally cause serious injury 5 years Base

3 Armed robbery 3 years 6 months

4 Theft of motor vehicle 2 years 3 months

5 Unlawful imprisonment 1 year 6 months

6 Unlawful imprisonment 1 year 6 months

Total effective sentence: 6 years and 9 months

Non-parole period: 3 years and 9 months

Leroy received exactly the same sentence on each of these six counts. In addition, however, he was dealt with for other unrelated matters involving handling stolen goods and being a prohibited person in possession of a firearm He received a total effective sentence of seven years and six months with a non-parole period of four years and six months.

A third offender, James Dale, pleaded guilty on a separate date, but before the same judge, to a series of…

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 Fletcher v The Queen

Details

AGLC: Fletcher v The Queen [2011] VSCA 4
Case: [2011] VSCA 4
Decision Date: 20 January 2011

CaseChat Overview and Summary

The applicant in this case pleaded guilty to charges of intentionally causing serious injury, armed robbery, and unlawful imprisonment. The Supreme Court was tasked with considering an application for leave to appeal against the sentence imposed, which was a total effective sentence of six years and nine months’ imprisonment, with a non-parole period of three years and nine months. The applicant's co-offenders, one of whom was more actively involved in the commission of the offences, received the same sentence as the applicant, while the second co-offender, who had no prior convictions, was sentenced to three years detention in a youth justice centre.

The central legal issue before the court was whether the sentencing judge had erred in applying the parity principle when determining the sentences. The court needed to assess if the sentences imposed were appropriate in light of the respective roles of the offenders and the principle of parity in sentencing. The applicant argued that the disparity between his sentence and that of the second co-offender was unjust, while the Crown conceded that the applicant had a justifiable sense of grievance due to the significant disparity in sentencing.

The court found that while the parity argument in relation to the first co-offender was rejected, the Crown's concession regarding the undue disparity with the sentence imposed on the second co-offender warranted reconsideration. Consequently, the applicant was re-sentenced to five years and nine months’ imprisonment, with a non-parole period of three years. This adjustment was made to address the perceived disparity and to ensure a more equitable sentencing outcome.

The court's final order was that the applicant's sentence be reduced to five years and nine months’ imprisonment, with a non-parole period of three years. This decision reflects the court's consideration of the principle of parity and the need to address the significant disparity in sentencing between the applicant and the second co-offender.

Orders