Lachlan Carpio v The Queen - [2019] VSCA 244

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0040

LACHLAN CARPIO	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2019
DATE OF JUDGMENT:	29 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 244
JUDGMENT APPEALED FROM:	DPP v Carpio [2019] VCC 54 (Judge Grant)

---

CRIMINAL LAW – Appeal – Sentence – Armed robbery, theft and other offences – Applicant participated in riots at Parkville Youth Justice Centre – Young offender – Applicant characterised as ‘leader’ of riots in pre-sentence report – Whether sentencing judge erred by accepting that characterisation – Leave to appeal refused – No material error established – Substantial criminal history – Applicant not a candidate for Youth Justice Centre detention – Sentencing Act 1991 s 8D.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Leanne Warren & Associates
For the Respondent	Mr P L Bourke	John Cain, Solicitor for Public Prosecutions

WHELAN JA

I agree with Priest JA.

PRIEST JA:

Following a ‘sentencing conversation’ in the Koori Court Division of the County Court, on 31 January 2019 the applicant was sentenced to a total effective sentence of three years and nine months’ imprisonment, with a non-parole period of two years and six months, for armed robbery and other offences. The sentencing orders are conveniently summarised in the following table:

Charge Offence Sentence Cumulation

1 Armed robbery[1] 3 years 3 months Base

2 Theft[2] 3 months

3 Theft 3 months

4 Theft 3 months

5 Attempted carjacking[3] 1 year 6 months (aggregate) 6 months

6 Making a threat to kill[4]

7 Intentionally damaging property[5]

Relevant summary offence

4 Wilful trespass[6] 2 months 3

Total effective sentence 3 years and 9 months’ imprisonment

Non-parole period 2 years and 6 months

Pre-sentence detention 262 days

Section 6AAA declaration 5 years and 3 months’ imprisonment with 4 years non-parole

[1]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, ss 79(1) and 321M. By virtue of s 321P, maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[6]Summary Offences Act 1966, s 9(1)(d). The maximum penalty is six months’ imprisonment or 25 penalty units.

The applicant seeks leave to appeal on a single ground asserting specific error:

The sentencing judge erred by having regard to the fact that the applicant was described in the Youth Justice pre‐sentence report as ‘a leader of the Parkville riots in October 2017’, a description that was not true.

I would refuse leave to appeal. In my opinion, the complaint embodied in the ground is without substance.

The applicant today turned 20.[7] He was aged 18 years when he committed the present offences. Born in Western Australia the fourth of…

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.

Keep reading for free

Create a free CaseChat account to read Lachlan Carpio v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSCA 244
Decision Date: 29 October 2019

CaseChat Overview and Summary

The applicant in this case, Lachlan Carpio, appealed against his sentence for various offences including armed robbery, theft, and other related charges. The appeal was heard and dismissed by the court. The nature of the dispute centred on the severity of the sentence imposed by the sentencing judge, who had characterised the applicant as a ‘leader’ in the riots that took place at the Parkville Youth Justice Centre. This characterisation played a significant role in the sentencing process.

The primary legal issue the court had to resolve was whether the sentencing judge had erred in accepting the characterisation of the applicant as a ‘leader’ of the riots. The court examined this question in the context of the Sentencing Act 1991, specifically section 8D, which outlines the considerations for sentencing young offenders. The applicant argued that this characterisation was incorrect and that it led to an inappropriate sentence. However, the court found that the applicant had a substantial criminal history and was not a suitable candidate for detention at the Youth Justice Centre, further complicating the sentencing considerations.

The court concluded that no material error was established in the sentencing judge’s acceptance of the applicant’s role in the riots. The court carefully reviewed the evidence and the applicant’s criminal history, affirming that the sentence imposed was appropriate given the circumstances. The court emphasised that the applicant’s substantial criminal history and unsuitability for detention at the Youth Justice Centre were key factors in determining the sentence. The appeal was dismissed, and no leave to appeal was granted.

Orders