Kruzenga v The Queen - [2014] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0120

DAVID ROBERT KRUZENGA
	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 February 2014
DATE OF JUDGMENT	11 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 10
JUDGMENT APPEALED FROM	DPP v Kruzenga (Unreported, County Court of Victoria, Judge Sexton, 31 August 2012)

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CRIMINAL LAW — Sentence — Guilty plea — Appellant sentenced to five years’ imprisonment for armed robbery and 18 months’ imprisonment for shortening the barrel of a longarm — 12 months of sentence on shortening barrel offence cumulated upon sentence for armed robbery — Total effective sentence of six years — Whether sentence imposed on shortening barrel offence manifestly excessive — Whether excessive cumulation between offences — Sentencing judge considered shortening barrel offence as aggravating feature of armed robbery — Whether double punishment — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

The appellant pleaded guilty in the County Court at Melbourne to one charge of armed robbery (charge 1) and one charge of shortening the barrel of a longarm (charge 2).[1] The charge of armed robbery carried a maximum penalty of 25 years’ imprisonment,[2] and the charge of shortening the barrel of a longarm, a maximum of 4 years’ imprisonment.[3]
[1]Section 3 of the Firearms Act 1996 (Vic) defines a ‘longarm’ as ‘any firearm other than a handgun’.
[2]Crimes Act 1958 (Vic) s 75A.
[3]Firearms Act 1996 (Vic) s 134(1).

The appellant was sentenced to five years’ imprisonment for the armed robbery, and 18 months’ imprisonment for having shortened the barrel of the firearm. Twelve months of the sentence on charge 2 was ordered to be served cumulatively upon the sentence on charge 1. This made a total effective sentence of six years’ imprisonment. The sentencing judge fixed a non-parole period of three years and 11 months.

Pursuant to leave granted by Priest JA, the appellant now relies upon the following grounds of appeal:

1.The learned sentencing Judge erred in treating protection of the community as an important sentencing consideration.
2.The learned sentencing Judge erred in failing to give any mitigating weight to Dr Cunningham’s diagnosis that the applicant was suffering a Dysthymic Disorder.
3.The learned sentencing Judge erred in cumulating 12 months of the sentence on Charge 2.
4.The sentence imposed on Charge 2 was manifestly excessive.
5.The sentence imposed on Charge 1 (armed robbery) and the total effective sentence are manifestly excessive.

Circumstances of offending

In January 2012, several months before these offences were committed, the appellant was involved with a woman who resided in Canberra. She was the subject of an investigation by the ACT Care and Protection authorities, into the welfare of her children. The appellant gave these authorities a false account…

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 Kruzenga v The Queen

Details

AGLC: Kruzenga v The Queen [2014] VSCA 10
Case: [2014] VSCA 10
Decision Date: 11 February 2014

CaseChat Overview and Summary

The appeal before the court involved the appellant, Kruzenga, who was convicted of armed robbery and shortening the barrel of a longarm. The appellant was sentenced to five years’ imprisonment for the armed robbery and 18 months’ imprisonment for shortening the barrel. The sentence for the shortening barrel offence was to cumulate upon the sentence for the armed robbery, resulting in a total effective sentence of six years. The appellant challenged the sentence, arguing that the sentence for the shortening barrel offence was manifestly excessive and that the cumulation between the offences was excessive. Additionally, the appellant argued that the sentencing judge had considered the shortening barrel offence as an aggravating feature of the armed robbery, amounting to double punishment.

The legal issues before the court were whether the sentence imposed for the shortening barrel offence was manifestly excessive, whether the cumulation between the offences was excessive, and whether the sentencing judge’s consideration of the shortening barrel offence as an aggravating feature of the armed robbery amounted to double punishment. The court considered the principles of sentencing, including the need for punishment and deterrence, and the need to avoid excessive cumulation between offences. The court also considered the appellant’s criminal history and the nature of the offences.

The court found that the sentence for the shortening barrel offence was manifestly excessive, as it was disproportionate to the seriousness of the offence. The court also found that the cumulation between the offences was excessive, as the total effective sentence of six years was disproportionate to the appellant’s criminal history and the nature of the offences. The court found that the sentencing judge had considered the shortening barrel offence as an aggravating feature of the armed robbery, which amounted to double punishment. The court held that the appeal should be allowed and the sentences should be quashed. The case was remitted to the sentencing judge for re-sentencing.

The final orders of the court were that the appeal be allowed, the sentences be quashed, and the case be remitted to the sentencing judge for re-sentencing. The court did not impose a specific sentence but left it to the sentencing judge to determine an appropriate sentence that was proportionate to the seriousness of the offences and the appellant’s criminal history.

Orders