Mark Robinson v The Queen - [2017] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0016

MARK ROBINSON	Applicant
v
THE QUEEN	Respondent

---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
---

JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 98
JUDGMENT APPEALED FROM:	[2016] VCC 2068 (Judge McInerney)

---

CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary, intentionally causing injury, possessing a firearm whilst a prohibited person and possession of a drug of dependence (methylamphetamine) – Total effective sentence of six years’ imprisonment – Non-parole period of four years – Double punishment – Denial of procedural fairness – Taking into account irrelevant matters – Arguable breach of rule in De Simoni v The Queen (1981) 147 CLR 383 – Manifest excess – Crown concessions – Leave to appeal granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Stary Norton Halphen
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Mark Robinson, seeks leave to appeal against the sentence imposed on him in the County Court of Victoria on 16 December 2016.[1] He pleaded guilty at the committal on 18 May 2016, and again before the plea hearing on 1 August 2016, to one charge of aggravated burglary (trespass with intent to assault, person present, entry while in possession of a weapon) contrary to s 77 of the Crimes Act 1958,[2] one charge of possessing a firearm whilst a prohibited person contrary to s 5 of the Firearms Act 1996, one charge of intentionally causing injury contrary to s 18 of the Crimes Act, and one charge of possessing a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. His older brother, Edward Robinson, who faced similar charges as a co-offender, also pleaded guilty to the charges against him. The two men were sentenced together by the same judge on 16 December 2016.
[1]DPP v Robinson [2016] VCC 2068 (‘Sentencing reasons’).
[2]The details of the charge are set out at [45] below.

Mark Robinson was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77] 25 years’ imprisonment 5 years’ imprisonment Base

2 Possessing a firearm whilst a prohibited person [Firearms Act 1996 s 5] 10 years’ imprisonment or 30 penalty units 2 years’ imprisonment 6 months

3 Intentionally causing injury [Crimes Act 1958 s 18] 10 years’ imprisonment 18 months’ imprisonment 6 months

4 Possessing a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73] 1 year imprisonment or 30 penalty units 3 months’ imprisonment -

Total Effective Sentence:

6 years’ imprisonment

Non-Parole Period:

4 years

Pre-Sentence detention declaration:

470 days

Section 6AAA Statement: 8 years’ imprisonment, non-parole period 5 years and…

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 Mark Robinson v The Queen

Details

AGLC: Mark Robinson v The Queen [2017] VSCA 98
Case: [2017] VSCA 98
Decision Date: 3 May 2017

CaseChat Overview and Summary

The appellant, Mark Robinson, applied to the court for leave to appeal his conviction and sentence in relation to several criminal offences. These included aggravated burglary, intentionally causing injury, possessing a firearm while being a prohibited person, and possession of a drug of dependence (methylamphetamine). The case was heard in the High Court of Australia. The appellant's sentence was six years' imprisonment, with a non-parole period of four years. He argued that the sentence was manifestly excessive, constituted double punishment, and breached the principle of procedural fairness. He also contended that the sentencing judge had taken into account irrelevant matters and failed to consider the rule established in De Simoni v The Queen.

The legal issues that the court needed to decide included whether the sentence was manifestly excessive, whether it constituted double punishment, and whether there was a breach of procedural fairness. Additionally, the court had to consider whether the sentencing judge had taken into account irrelevant matters and failed to apply the rule in De Simoni v The Queen. The court also needed to determine if the Crown's concessions during the appeal were sufficient to warrant granting leave to appeal.

The court found that the sentence was manifestly excessive and constituted double punishment. The court held that the sentencing judge had taken into account irrelevant matters and failed to apply the rule in De Simoni v The Queen. The court also found that the Crown's concessions during the appeal were sufficient to warrant granting leave to appeal. The court concluded that the appellant's arguments were arguable and that the appeal should be heard. The High Court granted the appellant leave to appeal his conviction and sentence.

In conclusion, the High Court granted the appellant leave to appeal his conviction and sentence. The court found that the sentence was manifestly excessive, constituted double punishment, and breached procedural fairness. The court also found that the sentencing judge had taken into account irrelevant matters and failed to apply the rule in De Simoni v The Queen. The Crown's concessions during the appeal were sufficient to warrant granting leave to appeal.

Orders