SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0050
| SAMUEL JACKSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | EMERTON JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 February 2020 |
| DATE OF JUDGMENT: | 24 April 2020 |
| DATE OF ORDERS: | 27 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 95 |
| JUDGMENT APPEALED FROM: | DPP v Jackson & Hole (Unreported, County Court of Victoria, Judge Riddell, 14 February 2019) |
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CRIMINAL LAW — Application for leave to appeal against sentence — Pleas of guilty to attempted theft, attempted aggravated burglary and home invasion — Applicant, aged 22 at time of offending, sentenced to total effective sentence of six years and three months’ imprisonment with non-parole period of four years — Co-offender, aged 18, sentenced to three years’ detention in youth justice centre for substantially overlapping offending — Whether, in sentencing on home invasion, judge impermissibly took into account uncharged threats to inflict serious injury, threats to rape and criminal damage committed after entry to premises — Whether applicant’s sentence manifestly too disparate from co-offender’s sentence — Leave granted — Appeal allowed — Applicant resentenced to total effective sentence of five years’ imprisonment with non-parole period of two-and-a-half years — Crimes Act 1958 (Vic), s 77A; R v Newman & Turnbull [1997] 1 VR 146; Elsayed v The Queen [2019] VSCA 113.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D McGlone | C Marshall & Associates |
| For the Respondent | Miss M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
EMERTON JA:
I have had the advantage of reading in draft form the judgment of Croucher AJA. I agree that the parity ground (Ground 1) is made out for the reasons that his Honour gives and that the applicant stands to be re-sentenced. Having regard to all relevant considerations, and notwithstanding the applicant’s greater role in the home invasion, the age difference between the two co-offenders and the different sentencing regime available to younger the co-offender, I am satisfied that the disparity in sentences is manifestly too great. The difference in age and the more prominent role taken by the applicant in the home invasion do not justify the total effective sentence imposed on the applicant (six years and three months’ imprisonment) being more than twice the length of the total effective sentence imposed on his co-offender (three years’ youth detention). The applicant is a youthful offender and has good prospects of rehabilitation, given his remorse and the strong family support that he enjoys.
I agree with the re-sentencing proposed by Croucher AJA, although I do so on the basis that the parity ground alone is made out, not the parity ground combined with Ground 3, which is the basis upon which Croucher AJA proposes to re-sentence the applicant. As a consequence, when considering the home invasion, I have not excluded from my assessment of the gravity of that offence and the applicant’s culpability the features of the offending treated by the trial judge as aggravating factors but characterised…
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- AGLC
- Jackson v The Queen [2020] VSCA 95
- Case
- [2020] VSCA 95
- Decision Date
CaseChat Overview and Summary
The court concluded that the primary judge had indeed erred by taking into account the uncharged threats, as these were not part of the charges or admissions. Such consideration constituted an error of law, necessitating a reassessment of the sentence. Furthermore, the court found the appellant's sentence to be manifestly disproportionate to that of his co-offender, especially given their similar involvement in the offences. The court granted leave to appeal and allowed the appeal, resentencing the appellant to a total effective sentence of five years’ imprisonment with a non-parole period of two-and-a-half years.
In light of the court's findings, the appeal was allowed, and the appellant was resentenced. The court emphasised the need for proportionality in sentencing, particularly in cases involving co-offenders, and underscored the importance of adhering to the legal principles set out in relevant statutes and precedents. This decision serves as a reminder of the critical role the Court of Appeal plays in ensuring the fairness and consistency of sentences imposed by lower courts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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