Green v The Queen

[2011] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0344

DALE JONATHON GREEN

v

THE QUEEN

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JUDGES	NETTLE JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 August 2011
DATE OF JUDGMENT	10 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 236
JUDGMENT APPEALED FROM	R v Green (Unreported, County Court of Victoria, Judge Jenkins, 8 September 2010)

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CRIMINAL LAW – Sentence – Armed robbery and theft – Whether total effective sentence of seven years’ imprisonment with non-parole period of five years manifestly excessive – Whether non-parole period of five years invited appellate scrutiny – Appeal dismissed – R v Detenamo [2007] VSCA 160, Romero v R [2011] VSCA 45 considered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S Kenny	Victorian Aboriginal Legal Service
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. This is an appeal against a total effective sentence of seven years’ imprisonment, with a non-parole period of five years, imposed on the appellant on pleading guilty to one count of armed robbery, one count  of theft of a motor car, and one count of cultivating a narcotic plant (cannabis).

The facts of the offending

(i)     Charge 1 – Armed robbery

1. On Saturday 6 June 2009 the appellant and his stepbrother (‘the co-accused’) drove around the Fawkner area and discussed finding a suitable business at which to commit an armed robbery.  They identified a milk bar situated at 56 Tyson Street in Fawkner at the corner of Lowson Street and Tyson Street.  A short time later they returned home to 6 Marlborough Street, Fawkner, where the co-accused took possession of a .22 sawn-off rifle, a balaclava, a black hooded jacket and gloves. 

1. At approximately 6.10 p.m., the appellant, acting as the driver, parked the car in Lowson Street some 50 metres east of the milk bar.  The co-accused instructed him not to stop if they were pursued by police. 

1. The co-accused exited the vehicle wearing the disguise and carrying the loaded sawn-off rifle.  He walked around the shop front and entered the milk bar.  He confronted victims, Youssef Hanna and Tong Tong Xu who were working in the milk bar, and aggressively demanded cash from the cash register.  The co-accused pointed the firearm at Hanna and Xu.  Yan Yang, who was also present in the milk bar, fled and took refuge at the rear of the shop.  When Hanna did not act quickly enough, the co-accused fired a shot over Hanna's head;  the bullet piercing the cigarette cabinet behind the victim and lodging in the wall.  The co-accused tried to jemmy open the cash register with a pair of scissors.  When he could not get it open, he used the scissors to cut the electrical power cord.  He then carried the cash register, containing approximately $1200 in cash, from the milk bar to the waiting vehicle around the corner, and placed the cash register in the rear of the car.  The appellant…