JUDGES:	MAXWELL ACJ and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2019
DATE OF JUDGMENT:	25 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 145
JUDGMENT APPEALED FROM:	[2018] VCC 1179 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Early guilty plea – Remorse – Offender intellectually impaired – Unsophisticated offending – Drug and alcohol addiction – Specific error – Resentencing – Community protection – Importance of rehabilitation – Combination sentence imposed – 3 year CCO with conditions requiring residential treatment, judicial monitoring, curfew.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Leanne Warren & Associates
For the Respondent	Ms R L Harper	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL ACJ
BEACH JA:

On 26 June 2018, the appellant pleaded guilty in the County Court to one charge of armed robbery contrary to s 75A of the Crimes Act 1958. The maximum term of imprisonment for armed robbery is 25 years.[1]
[1]See Crimes Act 1958 s 75A(2).

On 2 August 2018, the appellant was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years. Pursuant to s 18(1) of the Sentencing Act 1991 (the ‘Act’), the judge declared that a period of 210 days was to be reckoned as the period of imprisonment already served by the appellant under the sentence imposed.[2]
[2]DPP v Luchian [2018] VCC 1179 (Judge McInerney ) (‘Reasons’).

On 11 February 2019, this Court granted the appellant leave to appeal against the sentence imposed upon him on the following grounds:

1.The sentencing judge erred by failing to have regard to the appellant’s impaired mental functioning when assessing:
(a)the appellant’s moral culpability, the punishment that was just in all of the circumstances and the weight that fell to be given to denunciation (Verdins[3] proposition 1);
[3]R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
(b)the kind of sentence that was to be imposed (Verdins proposition 2);
(c)the weight that fell to be given to general deterrence (Verdins proposition 3) and specific deterrence (Verdins proposition 4);

and by failing to have regard to the evidence that established that the appellant’s time in custody would be more burdensome for him because of his intellectual impairment and his unstable psychological state (Verdins proposition 5).
2.The sentencing judge erred by finding that the ‘only time that [the appellant is] going to demonstrate true and actual remorse is when [he] finally [rids himself] of the scourge of drugs, so that [he is] not committing these serious crimes’, an error that reveals that:
(a)an incorrect approach was taken in the sentencing task to the consideration of the appellant’s remorse; and
(b)insufficient weight was given to the appellant’s remorse.

3.The sentence…

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 Luchian v The Queen

Details

AGLC: Luchian v The Queen [2019] VSCA 145
Case: [2019] VSCA 145
Decision Date: 25 June 2019

CaseChat Overview and Summary

The appellant, Luchian, appealed against his sentence for armed robbery. The primary issue before the court was whether the original sentence of six years’ imprisonment with a non-parole period of four years was manifestly inadequate. The court had to consider the offender’s early guilty plea, remorse, intellectual impairment, unsophisticated nature of the offence, drug and alcohol addiction, and the importance of rehabilitation and community protection.

The court noted that Luchian had shown remorse and had pleaded guilty early, which were mitigating factors. However, these had already been taken into account in the original sentence. The court found that the sentence was manifestly inadequate because it did not sufficiently reflect the importance of rehabilitation and community protection. The offender’s intellectual impairment, unsophisticated offending, and drug and alcohol addiction were also significant factors. The court considered these circumstances, along with the need for a combination sentence that addressed both the offender's treatment needs and community protection.

The court concluded that a combination sentence was appropriate, imposing a three-year custodial sentence with conditions. These conditions included residential treatment, judicial monitoring, and a curfew. This approach aimed to address Luchian's rehabilitation needs while ensuring community protection.

The court ordered a resentencing, imposing a three-year custodial sentence with specified conditions, including residential treatment, judicial monitoring, and a curfew. This was seen as a balanced approach that addressed both the offender's rehabilitation needs and the need for community protection.

Orders