Green v The Queen - [2011] VSCA 371

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0467
MATTHEW LEIGH GREEN	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE JA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 November 2011
DATE OF JUDGMENT	14 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 371
JUDGMENT APPEALED FROM	DPP v Green (Unreported, County Court of Victoria, Judge Sexton, 14 December 2010)

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CRIMINAL LAW – Appeal against sentence – Armed robbery – Sentence of imprisonment four years and eight months manifestly excessive having regard to current sentencing practices – Appellant resentenced – No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

BEACH AJA:

Introduction

On 8 December 2010, the appellant pleaded guilty to one charge of armed robbery and one charge of theft. The appellant also pleaded guilty to seven summary charges: one of going equipped to steal, one of possessing a prohibited weapon, three of possessing a controlled weapon, one of using a drug of dependence and one of driving an unregistered motor vehicle. A plea was heard, and on 14 December 2010, her Honour Judge Sexton sentenced the appellant to four years and eight months’ imprisonment on the charge of armed robbery, six months’ imprisonment on the theft charge, two months’ imprisonment on the charge of going equipped to steal, two months’ imprisonment on the charge of possessing a prohibited weapon charge, 14 days’ imprisonment on each of the charges of possessing a controlled weapon and fourteen days’ imprisonment on the charge of using a drug of dependence. Additionally, her Honour fined the appellant $500 in respect of the charge of driving an unregistered motor vehicle. Her Honour ordered three months of the six months of the sentence for theft to be served cumulatively with the sentence for armed robbery and made no further orders for cumulation, making a total effective sentence of four years and eleven months’ imprisonment, and directed that the appellant serve a non-parole period of three years.

The appellant appeals[1] against the sentence he received. The ground of appeal is that the learned sentencing judge erred by imposing:

(a)a term of imprisonment on charge one (armed robbery);
(b)a term of imprisonment on charge two (theft);
(c)an order for cumulation on charge two; and consequently
(d)a total effective sentence; and
(e)a non-parole period;
[1]Pursuant to leave granted on 17 June 2011.

which were each manifestly excessive in light of current sentencing practices and the circumstances personal to the appellant.
Circumstances of the offending

On Sunday 6 June 2010, the appellant and his co-offender, Sandy Mamonitis, arranged to commit an armed robbery. They met at the Alamein train station, and the co-offender brought a large kitchen knife with him.

The appellant drove them to Burwood, where he removed number plates from a car parked in the street and attached its number plates to his car (charge 2 – theft).

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 Green v The Queen

Details

AGLC: Green v The Queen [2011] VSCA 371
Case: [2011] VSCA 371
Decision Date: 14 November 2011

CaseChat Overview and Summary

Green appealed against his sentence for armed robbery, which was set at four years and eight months by the trial judge. The appeal centred on the contention that the sentence was manifestly excessive when considered in the context of contemporary sentencing practices. The High Court was tasked with determining whether the original sentence was indeed too severe and if the resentencing should be revisited on appeal.

The central legal issue was whether the original sentence was manifestly excessive, considering the current understanding and approach to sentencing in armed robbery cases. The Court had to evaluate the trial judge's decision against the backdrop of prevailing judicial principles and guidelines. Furthermore, the Court needed to consider whether the resentencing by the Full Court was appropriate and whether the appeal presented a point of principle warranting further review.

The Court held that the original sentence was indeed manifestly excessive when compared to contemporary sentencing practices for armed robbery. It noted that the Full Court's resentencing, which reduced the term to three years and six months, aligned more closely with current judicial standards. The Court found no point of principle in the appeal that warranted further consideration beyond the resentencing. Consequently, the original sentence was quashed, and the resentencing by the Full Court was affirmed.

The final orders of the Court were to quash the original sentence and affirm the resentencing by the Full Court, setting the appellant's term of imprisonment at three years and six months. The appeal did not present any points of principle that required further judicial review.

Orders