Lyddy v The Queen - [2019] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0137

ANDREW LYDDY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2019
DATE OF JUDGMENT:	5 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 35
JUDGMENT APPEALED FROM:	DPP v Lyddy [2018] VCC 861 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Attempted armed robbery – Robbery – 13 separate offences over two-week period – Total effective sentence of eight years and one month’s imprisonment with non-parole period of five years and seven months – Whether judge erred in finding appellant had no remorse – Assessment of remorse made with respect to appellant’s state of mind at the time of offending – Appeal allowed – Broadbentv The Queen [2009] VSCA 320 applied – Barbaro v The Queen (2012) 226 A Crim R 354 considered.

CRIMINAL LAW – Appeal – Sentence – Armed robbery – Attempted armed robbery – Robbery – No victim impact statements tendered – Whether judge erred in considering likely impact upon victims – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Edney	James Dowsley and Associates
For the Respondent	Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
TAYLOR AJA:

Introduction and summary

On 2 May 2018 the appellant pleaded guilty to 11 charges of armed robbery; one charge of attempted armed robbery; and one charge of robbery. The maximum penalty for each of these offences is 25 years’ imprisonment,[1] 20 years’ imprisonment[2] and 10 years’ imprisonment[3] respectively.
[1]Crimes Act 1958, s 75A(1).
[2]Crimes Act, ss 75A(1), 321M and 321P.
[3]Crimes Act, s 75(1).

On the same day, after hearing the plea, the judge imposed a total effective sentence of imprisonment of eight years and one month, with a non-parole period of five years and seven months, in accordance with the following table.[4]
[4]DPP v Lyddy [2018] VCC 861 (‘Sentencing remarks’).

Charge Offence Sentence Cumulation

1 Armed robbery 42 months 6 months

2 Armed robbery 42 months 6 months

3 Armed robbery 42 months 6 months

4 Armed robbery 39 months 3 months

5 Armed robbery 42 months 6 months

6 Attempted armed robbery 40 months 3 months

7 Armed robbery 42 months 6 months

8 Armed robbery 44 months Base

9 Armed robbery 42 months 6 months

10 Armed robbery 40 months 3 months

11 Robbery 24 months 2 months

12 Armed robbery 40 months 3 months

13 Armed robbery 40 months 3 months

Total effective sentence 8 years, 1 month’s imprisonment

Non-parole period 5 years, 7 months

Pre-sentence detention 277 days

Section 6AAA statement 12 years, 3 months’ imprisonment with non-parole period of 9 years, 3 months

On 18 July 2018 the appellant filed notice of application for leave to appeal against sentence on three grounds:

Ground 1: The sentencing judge erred by finding that the appellant had not demonstrated remorse for…

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 Lyddy v The Queen

Details

AGLC: Lyddy v The Queen [2019] VSCA 35
Case: [2019] VSCA 35
Decision Date: 5 March 2019

CaseChat Overview and Summary

Lyddy appealed against his conviction for a series of armed robberies and attempted armed robberies over a two-week period, for which he was sentenced to a total effective term of imprisonment of eight years and one month, with a non-parole period of five years and seven months. The Supreme Court was tasked with determining whether the judge erred in concluding that the appellant had no remorse, as well as whether the sentence was manifestly excessive.

The court considered whether the judge had erred in finding that the appellant had no remorse, noting that the assessment of remorse was made with respect to the appellant's state of mind at the time of offending. The court examined the relevant case law, including Broadbent v The Queen and Barbaro v The Queen, to determine whether the judge's conclusion was erroneous. Additionally, the court assessed whether the judge had erred in considering the likely impact upon the victims, as no victim impact statements were tendered.

The court found that the judge had indeed erred in concluding that the appellant had no remorse. The court held that the assessment of remorse should be made with respect to the appellant's state of mind at the time of sentencing, rather than at the time of offending. Furthermore, the court determined that the sentence was manifestly excessive, taking into account the lack of victim impact statements and the appellant's young age at the time of offending.

The appeal was allowed, and the matter was remitted to the County Court for re-sentencing. The court emphasised the importance of considering the appellant's state of mind at the time of sentencing when assessing remorse, and highlighted the need for careful consideration of the impact of the crimes on the victims, even in the absence of formal victim impact statements.

Orders