Little v The Queen; Holt v The Queen - [2011] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0946

STEPHEN JAMES LITTLE	Appellant
	v
THE QUEEN	Respondent

S APCR 2009 0957

JAMIE HOLT	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 May 2011
DATE OF JUDGMENT	27 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 155
JUDGMENT APPEALED FROM	R v Ciavarella & Ors (Unreported, County Court of Victoria, Judge Allen, 9 December 2009)

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CRIMINAL LAW – Sentence – Robbery, armed robbery and theft – Appellants jointly presented with co-offender – Parity with that co-offender – Sentencing judge justified in differentiating between appellants and co-offender – Sentence not manifestly excessive – Appeals against sentence dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant Mr Little	Mr S Holt with Mr C Farrington	Victoria Legal Aid
For the Appellant Mr Holt	Ms S Moglia	Chris McLennnan & Co
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

These appeals against sentence have been heard together. The offences to which the appellants pleaded guilty, and the sentences respectively imposed upon them, together with those imposed upon one Michael Ciavarella who was sentenced by the same judge on the same day (but who has not appealed against sentence), are set out in the following table.

Ciavarella Holt Little

Count 1
Theft of motor vehicle - six months’ imprisonment

(two months cumulative)

Count 3

Robbery – three years’ imprisonment
(12 months cumulative)

Count 4

Armed robbery – four years’ imprisonment
(base sentence)

Count 5

Robbery – two years and six months’ imprisonment
(nine months cumulative)

Count 6

Theft – three months’ imprisonment
(one month cumulative)

Total effective sentence: six years

Non-parole period: three years

Count 2
Attempted robbery – two years’ imprisonment
(12 months cumulative)

Count 5

Robbery – three years’ imprisonment
(base sentence)

Count 6

Theft – four months’ imprisonment
(two months cumulative)

Count 7

Theft of motor vehicle – eight months’ imprisonment
(four months cumulative)

Total effective sentence: four years six months

Non-parole period: three years

Count 3
Robbery – three years and six months’ imprisonment
(18 months cumulative)

Count 4

Armed robbery – four years’ imprisonment
(base sentence)

Total effective sentence: five years six months

Non-parole period: three years

It may be seen from the table that the appellant Little has two offences in common with Ciavarella (counts 3 and 4). So too does the appellant Holt (counts 5 and 6). Neither Little nor Holt have any offences in common with each other. The only reason they were jointly presented was because each of them was a co-offender with Ciavarella.

Each appellant complains of an error on the part of the sentencing judge in his application of the parity principle. Little says that both his individual sentences and his total effective sentence were excessive having regard to the punishment meted out to Ciavarella. He notes in particulars that Ciavarella had committed a greater number of offences over a longer…

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: [2011] VSCA 155
Decision Date: 27 May 2011

CaseChat Overview and Summary

The case before the court involved two appellants, Little and Holt, who were jointly tried with a co-offender for offences including robbery, armed robbery, and theft. The appellants sought to appeal against the severity of the sentences imposed on them by the sentencing judge. They argued that their sentences should have been in parity with that of their co-offender, who received a lesser sentence. The High Court was tasked with determining whether the sentencing judge was justified in differentiating between the appellants and their co-offender and whether the sentences imposed were manifestly excessive.

The court examined the principles of sentencing in the context of joint criminal activity, focusing on the roles and contributions of the appellants and their co-offender. It considered whether the sentencing judge had appropriately balanced the appellants' roles against the severity of their sentences. The court found that the sentencing judge had given adequate consideration to the relevant factors, including the roles of the appellants, and had not erred in imposing different sentences. The High Court held that the sentences were not manifestly excessive, affirming the sentencing judge's discretion in determining appropriate penalties.

Consequently, the appeals against the sentences were dismissed. The High Court upheld the sentencing judge's decision, concluding that the sentences were within the range of reasonable outcomes and did not manifest any clear error in the exercise of judicial discretion. The court's reasoning underscored the importance of individualised sentencing in cases involving joint criminal activity, affirming the principle that different roles and contributions can justify varying sentences.

The final orders of the court were that the appeals against the sentences imposed on Little and Holt were dismissed, and the original sentences were upheld as appropriate and not manifestly excessive.

Orders