Lucas v The Queen - [2021] VSCA 314

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0082

JAKE LUCAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2021
DATE OF JUDGMENT:	17 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 314
JUDGMENT APPEALED FROM:	DPP v Lucas (Unreported, County Court of Victoria, Judge Fox, 28 May 2021)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, common assault and armed robbery – Whether total effective sentence of two years and six months’ imprisonment with a non-parole period of sixteen months manifestly excessive – Whether principle of parity breached – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr M Keks	Bramham Lawyers
For the Respondent:	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

Jake Lucas, the applicant, aged 32 years,[1] seeks leave to appeal against a sentence of two years and six months’ imprisonment, with a non-parole period of sixteen months, imposed on him by a judge of the County Court on 28 May 2021.
[1]His date of birth is 17 January 1989.

The sentence relates to an aggravated burglary and other offences committed on 4 September 2017, when the applicant was aged 28 years. He, in company with Tayler Hazell, then aged 24 years,[2] and Jazmine Young, aged 18,[3] committed the offences at premises occupied by the victim, Peter Bell, at the Log Cabin Caravan Park in Langwarrin, in circumstances set out below.[4]
[2]His date of birth is 6 May 1993.
[3]Her date of birth is 9 November 1998.
[4]See [9] below.

There are two grounds of appeal upon which the applicant relies:

1. The individual sentence on charge 1, the total effective sentence and the non-parole period are, in all the circumstances, manifestly excessive.
2. The learned sentencing judge erred in her application of the principle of parity, because the applicant’s sentence is:
a.unduly disparate from that imposed on Jazmine Young; and
b.insufficiently disparate from that imposed on Tayler Hazell.

In our view, there is no substance in either ground. We would therefore refuse leave to appeal. Our reasons follow.

Sentences

Given that ground 2 asserts a breach of the parity principle, it is necessary to set out the sentences imposed both upon the applicant and upon his co-offenders.

The applicant pleaded guilty to aggravated burglary,[5] common assault[6] and armed robbery.[7] Following a plea, on 28 May 2021 Judge Fox sentenced the applicant in accordance with the following table:
[5]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[6]Common assault is a crime at common law. The maximum penalty is five years’ imprisonment. See Crimes Act 1958, s 320.
[7]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.

Charge Offence Sentence Cumulation

1 Aggravated burglary 2 years and 3 months Base

2 Common assault 12 months 2 months

3 Armed robbery 4 months 1 month

Total effective sentence 2 years…

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 Lucas v The Queen

Details

AGLC: Lucas v The Queen [2021] VSCA 314
Case: [2021] VSCA 314
Decision Date: 17 November 2021

CaseChat Overview and Summary

In the case of Lucas v The Queen, the appellant appealed against his sentence for a series of criminal offences. The respondent, the Crown, had successfully prosecuted the appellant for aggravated burglary, common assault and armed robbery. The appellant's appeal was against the total effective sentence of two years and six months’ imprisonment with a non-parole period of sixteen months. The appellant submitted that the sentence was manifestly excessive and that the principle of parity had been breached. The Crown submitted that the sentence was within the range of appropriate sentences for the offences committed.

The primary legal issue before the court was whether the appellant's sentence was manifestly excessive and whether the principle of parity had been breached. The appellant submitted that the sentence was manifestly excessive and that the court had failed to give appropriate weight to the appellant's disadvantageous background, his guilty plea and the absence of any violence during the commission of the offences. The appellant further submitted that the principle of parity had been breached because the sentence was manifestly disproportionate to sentences imposed on others who had committed similar offences. The Crown submitted that the sentence was within the range of appropriate sentences for the offences committed and that the court had properly considered the appellant's background and the other mitigating factors.

The court held that the appellant's sentence was not manifestly excessive and that the principle of parity had not been breached. The court noted that the appellant had a significant criminal history and had committed serious offences. The court held that the sentence was within the range of appropriate sentences for the offences committed and that the court had properly considered the appellant's background and the other mitigating factors. The court further held that there was no evidence to suggest that the sentence was manifestly disproportionate to sentences imposed on others who had committed similar offences. The court held that the appellant's submission that the sentence was manifestly excessive and that the principle of parity had been breached was without merit.

The court refused the appellant's application for leave to appeal. The court held that there was no arguable ground of appeal and that the appellant's appeal should be dismissed. The court further held that there were no exceptional circumstances that warranted the grant of leave to appeal. The court dismissed the appellant's appeal and affirmed the sentence imposed by the primary judge.

Orders