Guo v The Queen - [2020] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0207

JIAMING GUO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2020
DATE OF ORDERS:	29 October 2020
DATE OF REASONS:	2 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 273
JUDGMENT APPEALED FROM:	DPP v Guo [2020] VCC 1572 (Judge McInerney)

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CRIMINAL LAW — Appeal — Sentence — Aggravated Burglary — Possessing prohibited weapon — Aggregate sentence of 12 months’ detention in youth justice centre — Whether open to judge under s 32A of the Sentencing Act 1991 to impose an aggregate sentence of detention on both charges — Whether charges based on same facts, or part of a series of offences of the same or similar character — Appeal allowed — Resentenced to 12 month community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr R Nathwani	Lewenberg & Lewenberg Solicitors
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WEINBERG JA:

Introduction

On 25 August 2020, the applicant, now aged 20 years,[1] pleaded guilty before a judge in the County Court to aggravated burglary,[2] and to a relevant summary charge of possessing a prohibited weapon.[3]
[1]His date of birth is 26 January 2000.
[2]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[3]Control of Weapons Act 1990, s 5AA. The maximum penalty is 240 penalty units or imprisonment for 2 years.

Following a plea, on 1 October 2020 the judge sentenced the applicant on both charges to an aggregate sentence of 12 months’ detention in a youth justice centre.

The applicant sought leave to appeal against that sentence on five grounds.

Upon the hearing of the application for leave, it became clear that ground 5 had to succeed.[4] We thus made orders granting leave to appeal and allowing the appeal, and we resentenced the applicant in the manner set out below.[5] These are our reasons for making those orders.
[4]Leave was sought to add ground 5, it not having been included originally in the notice of application for leave to appeal.
[5]See [30]−[31].

Ground 5 was formulated as follows:[6]

5. The learned sentencing judge erred in the exercise of his discretion by imposing an aggregate sentence of detention pursuant to s 32A of the Sentencing Act 1991 because:
(i)the requirements of s 32A(1) of the Sentencing Act had not been satisfied;
(ii) the learned sentencing judge failed to comply with the requirements of s 32A(4) of the Sentencing Act;
(iii) the Applicant only fell to be sentenced for two offences;
(iv)one of the two offences for which the Applicant fell to be sentenced (namely, the ‘related summary offence’) was much less serious than the other offence for which the Applicant fell to be sentenced; and
(v) one of the two offences for which the Applicant fell to be sentenced was a ‘related summary offence’.

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 Guo v The Queen

Details

AGLC: Jiaming Guo v The Queen [2020] VSCA 273
Case: [2020] VSCA 273
Decision Date: 2 November 2020

CaseChat Overview and Summary

The appellant was convicted of aggravated burglary and possessing a prohibited weapon. He was sentenced to 12 months’ detention in a youth justice centre. He appealed the sentence on the basis that it was excessive and that the trial judge did not properly consider the appropriate sentencing options. The appeal was heard in the Court of Appeal of the Supreme Court of South Australia.

The central legal issue was whether the trial judge had the authority to impose an aggregate sentence of detention on both charges under section 32A of the Sentencing Act 1991. The appellant argued that the charges were not based on the same facts or part of a series of offences of the same or similar character, and thus, the imposition of an aggregate sentence of detention was inappropriate. The court had to determine whether the trial judge had erred in imposing the aggregate sentence.

The court held that the trial judge had not properly exercised his discretion in imposing the aggregate sentence of detention. The charges were not based on the same facts, nor were they part of a series of offences of the same or similar character. The court found that the trial judge should have considered an alternative sentence, such as a community correction order, which would have been more appropriate given the circumstances of the case. The appeal was allowed, and the appellant was resentenced to a 12-month community correction order.

The court’s final orders were to allow the appeal, set aside the original sentence, and substitute a 12-month community correction order in its place.

Orders