Michael Jeitany v The Queen - [2017] VSCA 296

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0153

MICHAEL JEITANY	Applicant
V
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 296
JUDGMENT APPEALED FROM:	[2017] VCC 678 (Judge Lawson)

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

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CRIMINAL LAW – Application for leave to appeal against sentence – Theft – Attempted burglary – Burglary – Attempted theft – Armed robbery - Reckless conduct endangering persons – Dangerous or negligent driving while pursued by police – Possessing drug of dependence – Two summary charges – Sentence of 7 years and 4 months’ imprisonment with non-parole period of 4 years and 6 months – Role of applicant in armed robbery – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
On the papers

SANTAMARIA JA:

The applicant, now aged 27, pleaded guilty to two charges of theft, one charge of attempted burglary, two charges of burglary, one charge of attempted theft, one charge of armed robbery, one charge of reckless conduct endangering persons, one charge of dangerous or negligent driving while pursued by police, one charge of possessing a drug of dependence, namely methylamphetamine, and two summary charges. On 9 June 2017, he was sentenced in the County Court as follows:

Charge on indictment Offence Maximum penalty Sentence Cumulation

1 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 1 year and 6 months’ imprisonment 3 months

2 Attempted burglary [Crimes Act 1958 ss 76(1) and 321M] 5 years’ imprisonment 2 years’ imprisonment 6 months

3 Burglary [Crimes Act 1958 s 76(1)] 10 years’ imprisonment 3 years and 6 months’ imprisonment 1 year

4 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 1 year and 6 months’ imprisonment Nil

5 Burglary [Crimes Act 1958 s 76(1)] 10 years’ imprisonment 3 years and 6 months’ imprisonment 6 months

6 Attempted theft [Crimes Act 1958 ss 74(1) and 321M] 5 years’ imprisonment 1 year imprisonment Nil

7 Armed robbery [Crimes Act 1958
s 75A(1)] 25 years’ imprisonment 4 years’ imprisonment Base

8 Conduct endangering persons [Crimes Act 1958 s 23] 5 years’ imprisonment 2 years’ imprisonment 6 months

9 Dangerous or negligent driving while pursued by police [Crimes Act 1958 s 319AA] 3 years’ imprisonment 1 year imprisonment 6 months

10 Possess drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73] 30 penalty units or 1 year imprisonment or both 3 months’ imprisonment Nil

Summary charges

20 Commit indictable offence whilst on bail [Bail Act 1977
s 30B] 30 penalty units or 3 months’ imprisonment 2 months’ imprisonment 1 month

21 State false name to police
[Crimes Act 1958
s 456AA(1)] 5 penalty units $250 fine N/A

Total effective sentence: 7 years and 4 months’…

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 Michael Jeitany v The Queen

Details

AGLC: Michael Jeitany v The Queen [2017] VSCA 296
Case: [2017] VSCA 296
Decision Date: 19 October 2017

CaseChat Overview and Summary

Michael Jeitany sought leave to appeal against his sentence in relation to a series of criminal activities, including theft, attempted burglary, burglary, attempted theft, armed robbery, reckless conduct endangering persons, dangerous or negligent driving while pursued by police, and possessing a drug of dependence. The application was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed was manifestly excessive, particularly considering the applicant's role in the armed robbery.

The court considered the principles of sentencing, particularly the gravity of the offences committed and the need to ensure sentences are proportionate to the crimes. The court reviewed the nature and circumstances of each offence, as well as the totality of the applicant's offending. The applicant argued that the sentence was disproportionately severe given his level of involvement in the armed robbery. The court examined whether the sentence failed to strike a fair balance between the need for punishment and deterrence and the applicant's personal circumstances and prospects for rehabilitation.

In its judgment, the court concluded that while the sentence was indeed severe, it was not manifestly excessive. The court recognised the seriousness of the offences and the need for appropriate deterrence. It found that the sentence reflected the gravity of the crimes and was not disproportionate to the applicant's role and conduct. The court also considered the totality of the applicant's offending and the need to balance individual culpability with the broader societal impact of the crimes. Ultimately, the court held that the sentence did not fail to strike a fair balance and dismissed the application for leave to appeal.

No additional orders were made beyond the refusal of leave to appeal.

Orders