Landmark v The Queen - [2015] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0082

WAYDE LANDMARK	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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JUDGE:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	6 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 178
JUDGMENT APPEALED FROM:	R v Landmark [2015] VSC 103 (King J)

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DETERMINED ON THE PAPERS

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CRIMINAL LAW – Sentence – Principal offender pleaded guilty to defensive homicide – Applicant and co-offender present at time deceased was shot and assisted principal offender in seeking to cover up crime afterwards – Applicant charged as accessory after the fact to intentionally cause serious injury pursuant to s 325 of Crimes Act 1958 – Sentenced to 2 years and 3 months’ imprisonment with non-parole period of 1 year and 8 months – Victim impact statements from deceased’s relatives admitted at plea – Whether statements inadmissible on basis that authors did not meet statutory definition of ‘victim’ – No reasonable prospect that Court would impose less severe sentence even if leave were granted – Leave to appeal refused – Criminal Procedure Act 2009 s 280(1)(a).

CRIMINAL LAW – Sentence – Whether judge impermissibly took into account circumstances surrounding shooting of deceased in sentencing applicant – Whether judge sentenced applicant on basis that he contributed to death of deceased – Ground not reasonably arguable – Leave to appeal refused.

CRIMINAL LAW – Sentence – Co-offender also charged under s 325 as being accessory after the fact but indictment specified ‘principal offence’ as murder – Charge carried higher maximum penalty (20 years) than charge brought against applicant (5 years) – Co-offender pleaded guilty and sentenced, over a year before applicant, to 18 month’s imprisonment with non-parole period of 12 months – After co-offender sentenced Crown determined that charge alleging principal offence of murder could not be sustained because deceased had not yet died at time applicant and co-offender carried out acts giving rise to accessory charge – Whether sentence imposed upon applicant offends principle of parity – Whether trial judge erred by failing to give weight to higher maximum penalty applicable to co-offender – No error established – Leave to appeal refused.

CRIMINAL LAW – Sentence – Whether sentence manifestly excessive – Ground not reasonably arguable – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No Appearances.

WEINBERG JA:

On 17 December 2014, the applicant pleaded guilty in the Supreme Court at Warrnambool to one charge of assisting an offender believed to have committed the offence of intentionally causing serious injury for the purpose of impeding the apprehension, prosecution, conviction, or punishment of the offender. On 30 March 2015, he was sentenced to 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 8 months.

A co-offender, Dylan Robertson, pleaded guilty to one charge of assisting an offender believed to have committed the offence…

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 Landmark v The Queen

Details

AGLC: Landmark v The Queen [2015] VSCA 178
Case: [2015] VSCA 178
Decision Date: 6 July 2015

CaseChat Overview and Summary

In the case of Landmark v The Queen, the applicant was charged as an accessory after the fact to the offence of causing serious injury, following the death of the victim. The matter was heard in the Court of Appeal of the Supreme Court of Victoria, where the applicant sought leave to appeal against his sentence. The applicant, along with a principal offender, was present at the scene when the deceased was shot, and they subsequently assisted in covering up the crime. The applicant was sentenced to two years and three months’ imprisonment, with a non-parole period of one year and eight months. The legal issues before the court involved the admissibility of victim impact statements, whether the sentence imposed was excessive, and whether the sentencing judge had taken into account irrelevant circumstances.

The court considered whether the victim impact statements were admissible, despite the victim being deceased at the time of the offence. The court found that there was no reasonable prospect that the applicant would receive a lesser sentence if the statements were excluded, and thus, the statements were admissible. The court also found that the sentencing judge did not take into account irrelevant circumstances when determining the sentence, and that the sentence was not manifestly excessive. The court concluded that the applicant's argument that the sentence should be based on the higher maximum penalty applicable to the co-offender was not reasonably arguable. The court held that there was no error in the trial judge's consideration of the co-offender's sentence, and that the sentence imposed upon the applicant did not offend the principle of parity.

The court further found that the applicant's arguments regarding the sentencing judge's consideration of the circumstances surrounding the shooting of the deceased were not reasonably arguable. The court held that there was no error in the trial judge's approach to sentencing, and that the sentence imposed upon the applicant was not excessive. The court ultimately denied the applicant's application for leave to appeal against his sentence. The final orders of the court were that the applicant's application for leave to appeal was dismissed, and the sentence imposed by the trial judge was upheld.

Orders