Green v The Queen

[2011] VSCA 311

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0272

TROY GREEN	Appellant
	v
THE QUEEN
	Respondent

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JUDGES	MAXWELL P and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 June 2011
DATE OF JUDGMENT	14 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 311
JUDGMENT APPEALED FROM	DPP v Green (Unreported, County Court of Victoria, Judge Gamble, 27 July 2010)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery, recklessly causing injury – Mental illness – Impaired mental functioning – Moral culpability ‘somewhat reduced’ – Application of principles in R v Verdins (2007) 16 VR 269 – Significance of principle of just punishment where moral culpability reduced – Whether specific deterrence relevant – Whether pre-meditation and use of force capable of aggravating seriousness of offence – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr P Kidd	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

Summary

1. The appellant (‘TG’) pleaded guilty to two charges of armed robbery and one charge of recklessly causing injury.  He was sentenced as set out below.

Charge	Offence	Maximum	Sentence	Cumulation
1	Armed robbery	25y	4y	BASE
2	Recklessly cause injury	5y	12m	–
3	Armed robbery	25y	3y	12m
TES:     5y  6AAA        TES:     6y 6m NPP:    3y  NPP:     4y

1. The central issue on the appeal concerned the implications of the judge’s finding, made in accordance with the first principle in R v Verdins,[1] that TG’s moral culpability was reduced on account of his impaired mental functioning at the time of the offending.  The issue arose in this way.

   [1](2007) 16 VR 269 (‘Verdins’).

1. TG had a long history of paranoid schizophrenia.  The sentencing judge held that there was a connection between his mental illness and the offending conduct, such that his moral culpability should be viewed as ‘somewhat reduced’.  At the same time, his Honour said:

(a)       the appellant had to be ‘justly punished’ for the serious offences he had committed;

(b)      specific deterrence remained a relevant consideration;  and

(c)       the seriousness of the offending was aggravated by its having been premeditated and having involved ‘some planning’. 

1. The essential submission for the appellant was that the finding of reduced moral culpability either rendered those other sentencing considerations inapplicable or, at the very least, meant that they should have been given little weight, such that a much lower sentence was required. 

1. In my respectful opinion, the sentencing judge’s approach was correct and the sentence was within range, reflecting that proper weight was given to all relevant sentencing considerations.  The appeal must therefore be dismissed.  My reasons are as follows.

Factual background

1. The facts of the offending were agreed.  TG committed the offences in two separate episodes over a 30-hour period.  On each occasion TG ‘carjacked’ a motorist stopped at traffic lights, using a meat cleaver to force the driver to comply.

1. The first robbery occurred at about 11:00 am on Friday, 1 May 2009.…