Jason Darmos v The Queen - [2015] VSCA 312

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0097

JASON DARMOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2015
DATE OF JUDGMENT:	23 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 312
JUDGMENT APPEALED FROM:	DPP v Darmos (Unreported, County Court of Victoria at Bendigo, Judge Chettle, 28 April 2015)

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CRIMINAL LAW – Sentence – Admissibility of fresh evidence on appeal – Whether psychotic episode after sentence revealed diagnosis of schizophrenia rather than drug-induced psychosis at time of offending – Nguyen v The Queen [2006] VSCA 184 applied –Fresh evidence did not throw ‘significant new light’ on pre-existing analysis or demonstrate material before sentencing judge did not reveal ‘the true significance’ of applicant’s psychiatric condition – Evidence not admissible – Different sentence would not have been imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid, Ringwood
For the Respondent	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA:

I would refuse leave to appeal for the reasons given by Whelan JA.

WHELAN JA:

On 28 April 2015 at the County Court of Victoria at Bendigo the applicant was arraigned and pleaded guilty to two charges of armed robbery.

The applicant had appeared before the same judge in Melbourne a month earlier. He was then appealing a term of four months’ imprisonment which had been imposed upon him in the Magistrates’ Court in relation to two breaches of Community Correction Orders (CCOs). The term imposed was four months. The judge had adjourned those appeals so that they could be dealt with at the same time as the armed robbery offences to which he pleaded guilty on 28 April. On 28 April he abandoned those appeals.

Between the two hearings a pre-sentence report under s 37(b) of the Sentencing Act 1991, dated 21 April 2015, had been obtained. A pre-sentence report is a pre-condition to the making of a CCO under Part 3A of the Sentencing Act1991.

After hearing a plea in mitigation the applicant was sentenced as follows:

Charge Offence Maximum Sentence

1
Armed Robbery

[s 75A Crimes Act 1958]

25 years’

imprisonment [s 75A(2) Crimes Act 1958]
18 months’ imprisonment (aggregate sentence); Community Corrections Order for a period of 3 years, with special conditions of 200 hours of unpaid community work, supervision, and treatment and rehabilitation.

2
Armed Robbery

[s 75A Crimes Act 1958]

25 years’

imprisonment [s 75A(2) Crimes Act

1958]

Total Effective Sentence: 18 months’ imprisonment (aggregate sentence); Community Corrections Order for a period of 3 years, with special conditions of 200 hours of unpaid community work, supervision, and treatment and rehabilitation.

Non-Parole Period: None

Pre-Sentence detention declaration: None

6AAA Statement: 4 years’ imprisonment and a non-parole period of 2 years 6 months.

Other relevant orders: Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958.

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.

Continue reading Jason Darmos v The Queen

Details

AGLC: Jason Darmos v The Queen [2015] VSCA 312
Case: [2015] VSCA 312
Decision Date: 23 November 2015

CaseChat Overview and Summary

Jason Darmos appealed against his sentence, claiming that fresh evidence of a psychotic episode after his sentencing revealed a diagnosis of schizophrenia rather than drug-induced psychosis at the time of his offending. The appeal was heard in the Court of Criminal Appeal. The primary legal issue was whether the fresh evidence was admissible under the principles established in Nguyen v The Queen, and whether it demonstrated that the sentencing judge was unaware of the true significance of the applicant's psychiatric condition at the time of sentencing.

The Court of Criminal Appeal considered the admissibility of the fresh evidence and found that it did not throw significant new light on the pre-existing analysis or demonstrate that the material before the sentencing judge did not reveal the true significance of the applicant's psychiatric condition. The Court held that the fresh evidence was not admissible, as it did not meet the criteria set out in Nguyen v The Queen. The Court also found that even if the fresh evidence had been admissible, it did not demonstrate that a different sentence would have been imposed.

As a result of the Court's findings, the application for leave to appeal was refused. The Court upheld the original sentence imposed on the applicant, finding that the fresh evidence did not warrant a reconsideration of the sentence. The Court emphasised the importance of ensuring that any fresh evidence presented on appeal meets the stringent criteria for admissibility, and that it must demonstrate that the sentencing judge was unaware of the true significance of the offender's psychiatric condition at the time of sentencing.

Orders