James Till v The Queen - [2017] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0114

JAMES TILL	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	29 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 224
JUDGMENT APPEALED FROM:	[2016] VCC 1976 (Judge Maidment)

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CRIMINAL LAW – Leave to appeal – Sentence – Aggravated burglary – Armed robbery – Causing serious injury recklessly in circumstances of gross violence – Guilty pleas – Total effective sentence of 12 years imprisonment – Non-parole period of 9 years – Whether sentencing judge proceeded on adverse finding not open beyond reasonable doubt – Applicant in protective custody at time of sentence – Whether sentence manifestly excessive – Appeal grounds arguable – Leave to appeal refused as no reasonable prospect total effective sentence would be reduced – Criminal Procedure Act 2009 s 280(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Giorgianni & Liang Lawyers
For the Crown	No appearance	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 15 December 2016 the applicant, and a co-offender, were sentenced by a judge in the County Court for offences of aggravated burglary, armed robbery, and causing serious injury recklessly in circumstances of gross violence.[1] Both offenders had pleaded guilty.
[1]DPP v Till [2016] VCC 1976 (‘Reasons’).

The applicant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [s 77(1) Crimes Act 1958]	25 years’ imprisonment [s 77(2) Crimes Act 1958]	8 years’ imprisonment	Base
2	Armed robbery [s 75A(1) Crimes Act 1958]	25 years’ imprisonment [s 75A(2) Crimes Act 1958]	7 years’ imprisonment	1 year
3	Causing serious injury recklessly in circumstances of gross violence [s 15B(1) Crimes Act 1958]	15 years’ imprisonment [s 15B(1) Crimes Act 1958]	7 years’ imprisonment	3 years
Total Effective Sentence		12 years’ imprisonment
Non-Parole Period:		9 years’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		476 days
6AAA Statement: 16 years’ imprisonment, non-parole period of 13 years
Other relevant orders: Disposal Order

The co-offender, Charles Hi, was sentenced as follows:[2]
[2]The co-offender Charles Hi has been granted leave to appeal on two grounds, being that the sentence imposed for the offence of aggravated burglary was manifestly excessive and that the total effective sentence and non-parole period do not adequately reflect the differences between him and his co-offender.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [s 77(1) Crimes Act 1958]	25 years’ imprisonment [s 77(2) Crimes Act 1958]	7 years’ imprisonment	Base
2	Armed robbery [s 75A(1) Crimes Act 1958]	25 years’ imprisonment [s 75A(2) Crimes Act 1958]	6 years’ imprisonment	1 year
3	Causing serious injury recklessly in circumstances of gross violence [s 15B(1) Crimes Act 1958]	15 years’ imprisonment…

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 James Till v The Queen

Details

AGLC: James Till v The Queen [2017] VSCA 224
Case: [2017] VSCA 224
Decision Date: 29 August 2017

CaseChat Overview and Summary

The applicant, James Till, appealed against his sentence for aggravated burglary, armed robbery, and causing serious injury recklessly in circumstances of gross violence. The case was heard in the High Court of Australia. Till entered guilty pleas to the charges and was sentenced to a total effective sentence of 12 years imprisonment, with a non-parole period of 9 years. The appeal focused on whether the sentencing judge proceeded on an adverse finding that was not open beyond reasonable doubt and whether the sentence was manifestly excessive.

The court examined whether the sentencing judge made an adverse finding regarding the use of a knife, which was not proven beyond reasonable doubt. The court also considered whether the sentence was manifestly excessive and whether there was a reasonable prospect that the total effective sentence would be reduced if leave to appeal were granted. The court noted that the applicant was in protective custody at the time of sentencing, which may have influenced the severity of the sentence.

The High Court held that the appeal grounds were arguable, but refused leave to appeal under section 280(1)(b) of the Criminal Procedure Act 2009. The court concluded that there was no reasonable prospect that the total effective sentence would be reduced. The court did not find that the sentence was manifestly excessive and did not accept that the sentencing judge proceeded on an adverse finding not open beyond reasonable doubt. The applicant's application for leave to appeal was therefore dismissed.

Orders