Legal Research
Cases
Jackson v The Queen

Jackson v The Queen

Case [2020] VSCA 95 24 April 2020

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0050

SAMUEL JACKSON	Applicant
v
THE QUEEN	Respondent

---

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)

---

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.

---

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…

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 Jackson v The Queen

Details

AGLC: Jackson v The Queen [2020] VSCA 95
Case: [2020] VSCA 95
Decision Date: 24 April 2020

CaseChat Overview and Summary

Jackson appealed against his sentence following his pleas of guilty to attempted theft, attempted aggravated burglary, and home invasion. The Court of Appeal, comprising of The Honourable Justices Byrne, McLeish, and Weinberg, was tasked with determining whether the primary judge had erred in sentencing the appellant. Specifically, the court had to decide whether the judge had improperly considered uncharged threats to inflict serious injury, threats to rape, and criminal damage committed after entry to the premises when sentencing for the home invasion. Additionally, the court examined whether the appellant's sentence was manifestly disproportionate to that of his co-offender, who was sentenced to three years' detention in a youth justice centre for substantially overlapping offending.

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