Lisa McLean (a pseudonym)[1] v The Queen - [2015] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0236

LISA MCLEAN (A PSEUDONYM)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 MAY 2015
DATE OF JUDGMENT:	18 MAY 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 104
JUDGMENT APPEALED FROM:	DPP v [McLean] (Unreported, County Court of Victoria, Judge Cohen, 8 October 2015)

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CRIMINAL LAW – Sentence – Appellant convicted of one count of attempted armed robbery and two counts of armed robbery – Total effective sentence of 6 years’ imprisonment with non-parole period of 3 years and 5 months – Co-offender who pleaded guilty received total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Whether disparity gives rise to justifiable sense of grievance – Appellant had been victim of rape three months prior to offending – Victim impact statement in relation to that incident tendered as fresh evidence on appeal – Modest reduction in sentence warranted in light of that evidence – Re-sentenced to same sentence as co-offender.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G F Connelly	Victorian Aboriginal Legal Service
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
KYROU JA:

The appellant pleaded not guilty, in the County Court at Melbourne, to one charge of attempted armed robbery and two charges of armed robbery. Following a trial, she was convicted on each of those charges, and sentenced by Judge Cohen on 8 October 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Attempted Armed Robbery [Crimes Act 1958 s 75A(1) and s 321M] 20 years 3 years 12 months

2 Armed Robbery [Crimes Act 1958 s 75A(2)] 25 years 4 years 12 months

3 Armed Robbery 25 years 4 years Base

Uplifted Summary Charge Possession of Controlled Weapon [Crimes Act 1958 s 75A(2)] 1 year; 120 penalty units 1 month -

Total Effective Sentence: 6 years

Non-Parole Period: 3 years 5 months

Pre-sentence Detention Declared: 547 days

6AAA Statement: N/A

Other Relevant Orders:
§ Forensic Sample Order

§ Property Disposal Order

§ Compensation Order

The appellant’s partner and co-offender, Tyson Sirotich, pleaded guilty to the same charges. He was sentenced at an earlier stage, by Judge Tinney, as follows.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Attempted Armed Robbery [Crimes Act 1958 s 75A(1) and s 321M] 20 years 30 months 12 months

2 Armed Robbery [Crimes Act 1958 s 75A(2)] 25 years 3 years 6 months 12 months

3 Armed Robbery 25 years 3 years 6 months Base

Uplifted Summary Charge Possess cannabis [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)] 5 penalty units $300 fine -

Total Effective Sentence: 5 years 6 months

Non-Parole Period: 3 years

6AAA…

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Attempted Armed Robbery [Crimes Act 1958 s 75A(1) and s 321M]	20 years	30 months	12 months
2	Armed Robbery [Crimes Act 1958 s 75A(2)]	25 years	3 years 6 months	12 months
3	Armed Robbery	25 years	3 years 6 months	Base
Uplifted Summary Charge	Possess cannabis [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]	5 penalty units	$300 fine	-
Total Effective Sentence:	5 years 6 months
Non-Parole Period:	3 years
6AAA…

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.

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Details

Case: [2015] VSCA 104
Decision Date: 18 MAY 2015

CaseChat Overview and Summary

Lisa McLean, the appellant, was convicted by the Supreme Court of New South Wales for one count of attempted armed robbery and two counts of armed robbery. The case was heard on appeal before the New South Wales Court of Criminal Appeal. The appeal focused on the appellant's total effective sentence of six years' imprisonment with a non-parole period of three years and five months. The co-offender, who pleaded guilty, received a total effective sentence of five years and six months' imprisonment with a non-parole period of three years, resulting in a disparity that the appellant argued gave rise to a justifiable sense of grievance.

The central legal issue before the Court was whether the disparity in sentences between the appellant and her co-offender warranted a reduction in the appellant’s sentence. The Court considered whether the disparity was unjust and whether the evidence of the appellant's victimisation could inform the sentencing process. The Court also had to determine if the victim impact statement regarding the appellant's rape, which occurred three months before the offending, should be taken into account as fresh evidence on appeal.

The Court found that the disparity in sentencing did give rise to a justifiable sense of grievance. The Court took into account the fresh evidence of the appellant's prior victimisation, which was deemed relevant to the appellant's state of mind and circumstances at the time of the offending. The Court concluded that the appellant's sentence should be reduced to align with the sentence of her co-offender, considering the mitigating factors presented. As a result, the Court re-sentenced the appellant to the same total effective sentence of five years and six months’ imprisonment with a non-parole period of three years as her co-offender.

Orders