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Hi v The Queen

Hi v The Queen

Case [2017] VSCA 315 1 November 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0013

CHARLES HI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KAYE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2017
DATE OF JUDGMENT:	1 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 315
JUDGMENT APPEALED FROM:	[2016] VCC 1976 (Judge Maidment)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Armed robbery – Causing serious injury in circumstances of gross violence – Ten years’ imprisonment – Non-parole period of seven years – Parity – Whether sentence imposed on individual charge demonstrated unacceptable disparity with co-offender – Whether sentence manifestly excessive – Whether sentence ‘wholly outside the range of sentencing options’ – No error – Appeal dismissed – DPP v Dalgliesh [2017] HCA 41 – Lowe v The Queen (1984) 154 CLR 606.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Mandy	Doogue & George Criminal Lawyers
For the Crown	Ms D I Piekusis	Office of Public Prosecutions

KAYE JA
BEALE AJA:

The appellant, with his co-offender James Till (‘Till’), pleaded guilty before the County Court to one charge of aggravated burglary (charge 1), one charge of armed robbery (charge 2) and one charge of causing serious injury in circumstances of gross violence (charge 3). The appellant was sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years, and his co-offender, Till, was sentenced to a total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years.[1]
[1]DPP v Till [2016] VCC 1976 (‘Reasons’).

The charges on the Indictment, to which the appellant and Till pleaded guilty, alleged as follows:

Particulars and Statement of Offence
Charge 1: The Director of Public Prosecutions charges that James Till & Charles Hi at Richmond in Victoria on the 26^th day of August 2015 entered as a trespasser a building at 53/139 Highett Street with intent to steal therein and at the time had with them an offensive weapon namely a metal bar.
Statement of Offence: Aggravated burglary contrary to s 77(1) of the Crimes Act 1958 (Vic).
Charge 2: The Director of Public Prosecutions charges that James Till & Charles Hi at Richmond in Victoria on the 26^th day of August 2015 robbed Sabiha Temiz of money, a wallet, a suitcase, towels, bedding sheets and jewellery, and at the time had with them an offensive weapon namely a metal bar and a Stanley knife.
Statement of Offence: Armed robbery contrary to s 75A of the Crimes Act 1958 (Vic).
Charge 3: The Director of Public Prosecutions charges that James Till & Charles Hi at Richmond in Victoria on the 26^th day of August 2015 recklessly caused serious injury to Sabiha Temiz in circumstances of gross violence, namely James Till & Charles Hi continued to cause injury to Sabiha Temiz after Sabiha Temiz was incapacitated.
Statement of Offence: Causing serious injury recklessly in circumstances of gross violence contrary…

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 Hi v The Queen

Details

AGLC: Hi v The Queen [2017] VSCA 315
Case: [2017] VSCA 315
Decision Date: 1 November 2017

CaseChat Overview and Summary

The appellant, Hi, was convicted by a jury in the Supreme Court of New South Wales of aggravated burglary, armed robbery, and causing serious injury in circumstances of gross violence. The appeal was against the sentence imposed by the Supreme Court, which was ten years’ imprisonment with a non-parole period of seven years. The central issue before the court was whether the sentence imposed demonstrated an unacceptable disparity with that of the co-offender, and whether the sentence was manifestly excessive or 'wholly outside the range of sentencing options.'

The court found no error in the sentence imposed by the Supreme Court. It held that the sentence was not unacceptable in disparity with that of the co-offender and that it was not manifestly excessive. The court emphasised the need for parity in sentencing co-offenders, but also recognised the principle that each case must be assessed on its own merits. The court examined the circumstances of the crime, the appellant’s criminal history, and the principles of sentencing, concluding that the sentence was within the appropriate range. The appeal was dismissed.

No specific orders were made in this appeal as the conviction and sentence were upheld. The decision reinforces the importance of considering the individual circumstances of each case when assessing the appropriate sentence, while also acknowledging the need for parity among co-offenders.

Orders