Manariti v The Queen - [2015] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0067
JOSEPH MANARITI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2015
DATE OF JUDGMENT:	23 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 160
JUDGMENT APPEALED FROM:	[2015] VCC 2051 (Judge Hogan)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Attempted armed robbery – Robbery – Recklessly causing injury – Reckless conduct endangering serious injury – Serious mental illness – Applicant ceased taking medication – Consequences of applicant ceasing medication – Application of R v Verdins (2007) 16 VR 269 – Whether sentence was manifestly excessive – Whether sentencing judge failed to give sufficient weight to s 5(4C) of the Sentencing Act 1991 – Whether sentencing judge breached s 5(2AA) of the Sentencing Act 1991 – Boulton v The Queen [2014] VSCA 342 referred to – Sentencing Act 1991, ss 5(2AA) and 5(4C).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight QC with Ms M E Casey	Acquaro & Co
For the Respondent	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA

BEACH JA:

Introduction

On 13 October 2014, the applicant was arraigned and pleaded guilty to one charge of recklessly causing injury, one charge of robbery, two charges of reckless conduct placing persons in danger of serious injury and one charge of attempted armed robbery. In addition, the applicant consented to five charges of driving in a manner dangerous, one charge of resist police and one charge of assaulting police, to which the applicant also pleaded guilty, being uplifted from the Magistrates’ Court.[1] On 9 December 2014, following a plea hearing on 13, 14 and 17 October, 28 November and 1 December 2014, the applicant was sentenced as follows:
[1]In fact, pleas of guilty to charges 1, 2 and 5 on the indictment and the seven related summary charges were first entered at the committal hearing on 15 May 2014, while pleas of guilty to charges 3 and 4 on the indictment were first entered at a mention in the County Court on 14 July 2014.

Charge on Indictment Offence Maximum Sentence Cumulation

1
Recklessly causing injury

s 19 Crimes Act 1958
5 years 6 months 1 month

2
Robbery

s 75 Crimes Act 1958
15 years 12 months 2 months

3 Reckless conduct endangering serious injury
s 23 Crimes Act 1958 5 years 18 months 6 months

4 Reckless conduct endangering serious injury
s 23 Crimes Act 1958 5 years 18 months 6 months

5
Attempted armed robbery

s 321 Crimes Act 1958
20 years 2 years Base

Related summary offences

8, 10, 14, 15, 19
Drive in a manner dangerous

ss 64(1)–(2) Road Safety Act
240 penalty units or 2 years or both Aggregate 20 months 6 months

21 Resist police
s 52(1) Summary Offences Act 25 penalty units or 6 months Aggregate 6 months 1 month

22 Assault police

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 Manariti v The Queen

Details

AGLC: Manariti v The Queen [2015] VSCA 160
Case: [2015] VSCA 160
Decision Date: 23 June 2015

CaseChat Overview and Summary

In the case of Manariti v The Queen, the applicant sought leave to appeal against the sentence imposed by the trial judge following his conviction for attempted armed robbery, recklessly causing injury, and reckless conduct endangering serious injury. The applicant had a history of serious mental illness and had ceased taking his prescribed medication prior to the commission of the offences, which resulted in a diminished level of responsibility. The application was heard in the Victorian Court of Appeal. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the applicant's mental health and the mitigating factors present in the case. Additionally, the court had to consider whether the sentencing judge had failed to give sufficient weight to the statutory provisions outlined in section 5(4C) of the Sentencing Act 1991 and whether the sentencing judge breached section 5(2AA) of the same Act. The court found that the sentence was not manifestly excessive, as it had taken into account the applicant's mental health and the mitigating factors present in the case. The court also found that the sentencing judge had not failed to give sufficient weight to section 5(4C) of the Sentencing Act 1991, as the judge had considered the applicant's mental health and the circumstances of the offence when imposing the sentence. Furthermore, the court found that the sentencing judge had not breached section 5(2AA) of the Sentencing Act 1991, as the judge had considered the principles of sentencing and had imposed a sentence that was proportionate to the seriousness of the offences committed. Consequently, the application for leave to appeal against the sentence was dismissed. The court emphasised the importance of considering the individual circumstances of each case, including the mental health of the offender, when imposing a sentence. The court also highlighted the need for sentencing judges to consider the principles of sentencing outlined in the Sentencing Act 1991 when imposing a sentence.

Orders