Mann v The Queen - [2011] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0787

ARVINDER SINGH MANN	Appellant
	V
THE QUEEN	Respondent

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JUDGES	WEINBERG and HARPER JJA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 May 2011
DATE OF JUDGMENT	24 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 189
JUDGMENT APPEALED FROM	R v Mann [2009] VSC 536 (Curtain J)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury; armed robbery – Total effective sentence nine years’ imprisonment with non-parole period seven years – Whether judge erred in referring to appellant’s prospects of deportation when fixing non-parole period – Judge did not fix heavier non-parole period due to likely deportation – Judge did not err in fixing non-parole period 78 per cent of total effective sentence – Not manifestly excessive – Appeal dismissed

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Mr C B Boyce	Slades & Parsons
For the Respondent	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The appellant pleaded guilty in the Supreme Court at Melbourne to one count of intentionally causing serious injury (count 2) and one count of armed robbery (count 4).

He was sentenced to eight years’ imprisonment on count 2, and three years’ imprisonment on count 4. It was ordered that one year of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 2. That made a total effective sentence of nine years’ imprisonment. A non-parole period of seven years was fixed.

Background facts

The circumstances surrounding these offences were as follows. The victim, Shashikant Sharma, had met the appellant in December 2007. Some two weeks later, on Christmas Day, they spent the day together. Eventually, they ended up at Sharma’s home. Sharma provided the appellant with a meal and subsequently fell asleep. He was awoken by a blow to the head. He turned on a light and saw the appellant standing before him holding the handle of a pressure cooker. The cooker itself was lying on the floor. Sharma’s head was bleeding profusely. He cried out, ‘have you gone crazy’?

The appellant then attempted to hit Sharma with an empty bottle, but Sharma deflected the blow. The appellant then grabbed a rolling pin and struck Sharma to the head several times, and once on the shoulder.

The appellant then produced a knife from his jacket and demanded Sharma’s ATM card and his PIN number. Sharma handed over the card and provided the PIN number. The appellant then lunged at him with the knife, and a struggle ensued. Sharma managed to disarm the appellant, who then picked up a different knife from the table and again attacked Sharma. At that point, Sharma fell to the floor. The appellant stood over him, lifted Sharma’s chin and cut his throat, first in one direction and then in the other. The appellant then fled, taking Sharma’s wallet and his mobile phone.

Sharma was taken to the Alfred Hospital. He underwent emergency surgery. He…

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 Mann v The Queen

Details

AGLC: Mann v The Queen [2011] VSCA 189
Case: [2011] VSCA 189
Decision Date: 24 June 2011

CaseChat Overview and Summary

The appellant, Mann, appealed against the sentence imposed by the Supreme Court of South Australia, contending that the judge had erred in referring to his prospects of deportation when fixing the non-parole period. Mann was convicted of armed robbery and intentionally causing serious injury, and was sentenced to nine years’ imprisonment, with a non-parole period of seven years. Mann argued that the judge had not properly considered the principles of sentencing and that the non-parole period was manifestly excessive. The appeal was heard by the South Australian Court of Criminal Appeal.

The primary legal issues in the appeal were whether the trial judge had erred in considering Mann's prospects of deportation when setting the non-parole period and whether the non-parole period was manifestly excessive. The appeal hinged on the interpretation of the sentencing principles and the application of these principles by the trial judge. The court examined whether the judge had fixed the non-parole period due to Mann's likely deportation, and if the non-parole period represented 78 per cent of the total effective sentence, which was a matter of significant contention.

The Court of Criminal Appeal found that the trial judge had not fixed the non-parole period due to Mann's likely deportation but had instead considered it as one of the factors in the overall sentencing process. The court held that the trial judge had not erred in fixing the non-parole period at 78 per cent of the total effective sentence, as it was not manifestly excessive and was within the range of acceptable sentencing. The appeal was dismissed as the court found no error in the trial judge's sentencing process or in the determination of the non-parole period.

The final orders of the Court of Criminal Appeal were that the appeal against the sentence was dismissed. The original sentence of nine years’ imprisonment with a non-parole period of seven years was upheld. The court confirmed that the sentence was proportionate and appropriately reflected the severity of the crimes committed.

Orders