CRIMINAL LAW – Sentence – Appellant pleaded guilty to one charge of armed robbery and one charge of theft – Appellant and co-offender robbed liquor store armed with knives – Appellant sentenced to five years’ imprisonment with a non-parole period of three years – Whether sentence manifestly excessive – Whether appellant’s youth, deprived background and Aboriginality appropriately taken into account in mitigation – Whether appellant’s participation in Koori Court process given sufficient weight – R v Morgan (2010) 24 VR 230 considered – Appeal dismissed.
CRIMINAL LAW – Koori Court – Principles to be applied when determining weight to be given to participation in sentencing conversation – Whether judge should seek feedback from Elders after sentencing conversation – Role of ‘Gladue’ reports – Gladue v The Queen [1999] 1 SCR 688 referred to.
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APPEARANCES:
Counsel
Solicitors
For the Appellant:
Ms F Gerry QC with Ms A Beech
Stary Norton Halphen
For the Crown:
Ms R Harper
Mr J Cain, Solicitor for Public Prosecutions
Appearing as Amicus Curiae
Mr D Hallows SC with Ms K Ballard
Human Rights Law Centre and Victorian Aboriginal Legal Service
PRIEST JA BEACH JA HARGRAVE JA:
On 25 July 2017, the appellant pleaded guilty in the Koori Court Division of the County Court of Victoria to one charge of armed robbery and one charge of theft. The charges arose out of events that took place on 24 February 2017, involving an armed robbery of a Dan Murphy’s liquor store and using a stolen car to get away.
On 28 July 2017, the appellant was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1.
Armed Robbery
25 years’ imprisonment
4 years and 6 months’ imprisonment
Base
2.
Theft
10 years’ imprisonment
1 year’s imprisonment
6 months
Total Effective Sentence
5 years’ imprisonment
Non-parole period
3 years
Pre-sentence detention declared:
154 days
s. 6AAA statement:
6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months
Other relevant Orders:
Compensation of $1052.35 to Dan Murphy’s
The appellant applied for leave to appeal against sentence. A single judge has granted leave to appeal.[1]
The appellant relies upon the following grounds of appeal:
Ground 1:
The individual sentences, the total effective sentence, and the orders for cumulation are manifestly excessive, particularly in view of the following matters:
a) The appellant’s young age (24);
b) The appellant’s tragic personal history;
c) The appellant’s aboriginality;
d)The appellant’s exemplary involvement in the Koori Court process; and
e)The appellant’s evident remorse both through his early plea and his engagement with the Elders during the…
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.
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Details
AGLC
Honeysett v The Queen [2018] VSCA 214
Case
[2018] VSCA 214
Decision Date
CaseChat Overview and Summary
The appellant, Honeysett, was convicted of armed robbery and theft in the Supreme Court of Victoria. The offence involved robbing a liquor store while armed with knives, alongside a co-offender. Honeysett was sentenced to five years' imprisonment, with a non-parole period of three years. The appellant appealed against the sentence, contending it was manifestly excessive and that mitigating factors such as his youth, deprived background, and Aboriginality were not adequately considered. Additionally, he argued that the Koori Court process, which aims to provide culturally appropriate sentencing, was not given sufficient weight.
The legal issues before the court included whether the sentence was manifestly excessive, and if the trial judge appropriately considered mitigating factors including the appellant’s youth, deprived background, and Aboriginality. Another significant issue was whether the judge sufficiently accounted for the appellant’s participation in the Koori Court process, which aims to incorporate Indigenous cultural considerations into sentencing. The court needed to determine whether the principles outlined in R v Morgan and Gladue v The Queen were applied correctly by the trial judge.
The court dismissed the appeal, holding that the sentence was not manifestly excessive. The trial judge had thoroughly considered the mitigating factors, including the appellant’s youth, deprived background, and Aboriginality, and appropriately weighed them against the seriousness of the offence. The court found that the judge had adequately considered the Koori Court process and the appellant’s participation therein. The principles for assessing the weight of participation in the Koori Court process were also correctly applied, and there was no need for the judge to seek feedback from Elders post-sentencing. The court emphasised the importance of ‘Gladue’ reports in providing a comprehensive understanding of the offender’s background and circumstances. Ultimately, the appeal was dismissed, and the original sentence was upheld.