Heeman v The Queen

[2011] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0361

SARAH HEEMAN
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2011
DATE OF JUDGMENT:	2 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 221
JUDGMENT APPEALED FROM:	DPP v Heeman and Rivette (Unreported, County Court of Victoria, Judge Douglas, 8 September 2010)

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CRIMINAL LAW - Sentence – Theft and false imprisonment – Appellant sentenced to total effective sentence of three years and three months' imprisonment with a non‑parole period of 20 months – Co-offender sentenced to total effective sentence of four years and four months’ imprisonment with a non‑parole period of two years and two months – Whether manifestly excessive – Parity – Appellant young and immature for her age – Non parole period reduced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Matthews	Robert Stary Lawyers
For the Crown	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

1. On 8 September last year, the appellant pleaded guilty in the County Court to one count of theft and three counts of false imprisonment.  A co‑offender pleaded guilty to six charges; two of theft, three of false imprisonment and one of possessing a drug of dependence.

1. The appellant was sentenced to a total effective sentence of three years and three months' imprisonment with a non‑parole period of 20 months.  By contrast, the co‑offender was sentenced to a total effective sentence of four years and four months with a non‑parole period of two years and two months.

1. The appellant now appeals on two grounds.  First, that the sentence imposed upon her was manifestly excessive and secondly, that the sentencing judge failed to adhere appropriately to the principle of parity.

1. The second argument rests principally upon the propositions that the co‑offender was between 10 and 11 years older than the appellant and that he was the principal offender in that he was the person who was the principal instigator of the offence.  His prior history was also worse than that of the appellant.

1. The sentencing judge in a careful and considered set of sentencing reasons, explained how it was that she came to the sentences which she imposed.  She considered the differences which distinguished the case of the co‑offender from that of the appellant and, having given that consideration to the positions of each, she came to the sentences to which I have just referred.

1. In my opinion, the total effective sentence of three years and three months imposed upon the appellant could not be said to be manifestly excessive.  I have, as did the judge, taken into account the youthfulness and immaturity of the appellant.  But I have also taken into account, as did the sentencing judge, the very serious gravity of the offending which led to the sentences to which I have referred. 

1. I am at the same time of the view that her Honour did err in the application of

the principle of parity.  In my opinion the arguments put forward on behalf of the appellant do demonstrate that her position was such as to warrant a greater difference in the sentences which were imposed upon each, but in the particular circumstances of this case, I think that the difference can be appropriately represented by a reduction in the appellant’s non‑parole period from 20 months to 19 months.  I propose, therefore, to allow the appeal to the extent that the non‑parole period should be reduced as I have indicated; but the total effective sentence remain at three years and three months.

HANSEN JA:

1. I agree.

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