Nathan Sinclair v The Queen - [2022] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0037

NATHAN SINCLAIR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2022
DATE OF JUDGMENT:	30 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 180
JUDGMENT APPEALED FROM:	[2022] VCC 259 (Judge Lyon)

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CRIMINAL LAW – Appeal – Sentence – One charge of armed robbery, 11 charges of theft, one charge of handling stolen goods, three charges of attempted theft, seven charges of damaging property, three related summary offences – Total effective sentence 2 years, 2 months’ imprisonment – Non-parole period 1 year, 5 months – Whether judge failed to give effect to intention to impose relatively long parole period – Whether judge erred in applying fifth limb of R v Verdins (2007) 16 VR 269 – Whether total effective sentence or non-parole period vitiated by error – Application for leave to appeal refused.

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Counsel
Applicant:		Mr G Chipkin
Respondent:		Ms DI Piekusis QC
Solicitors
Applicant:	Chester Metcalfe & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

On 18 and 28 February 2022, the applicant pleaded guilty to the charges set out in the table below. On 7 March 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Sinclair [2022] VCC 259 (‘Sentencing remarks’).

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Armed robbery [Crimes Act 1958, s 75A] 25 years 1 year, 8 months Base

2 Theft [Crimes Act, s 74(1)] 10 years 5 months —

3 Theft 10 years 3 months 2 months

4 Theft 10 years 3 months —

5 Handling stolen goods [Crimes Act, s 88] 15 years 3 months —

6 Attempted theft [Crimes Act, ss 74(1), 321M] 5 years 2 months 1 month

7 Damaging property [Crimes Act, s 197(1)] 10 years 4 months 2 months

8 Attempted theft 5 years 2 months —

9 Damaging property 10 years 4 months —

10 Theft 10 years 3 months —

11 Damaging property 10 years 4 months —

12 Theft 10 years 3 months —

13 Damaging property 10 years 4 months —

14 Theft 10 years 3 months —

15 Damaging property 10 years 4 months —

16 Attempted theft 5 years 2 months —

17 Damaging property 10 years 4 months —

18 Theft 10 years 3 months —

19 Theft 10 years 3 months —

20 Damaging property 10 years 4 months —

21 Theft 10 years 3 months —

22 Theft 10 years 3 months —

23 Theft 10 years 3 months —

Related Summary Offences

4 Drive while disqualified [Road Safety Act 1986, s 30] 2 years 3 months 1 month

5 Commit indictable offence on bail [Bail Act 1977, s 30B] 3 months 1 month —

6 Contravene bail conditions [Bail Act

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 Nathan Sinclair v The Queen

Details

AGLC: Nathan Sinclair v The Queen [2022] SUPREME COURT OF VICTORIA COURT OF APPEAL S EAPCR 2022 0037 180
Case: [2022] VSCA 180
Decision Date: 30 August 2022

CaseChat Overview and Summary

Nathan Sinclair appealed against his sentence for various criminal offences, arguing that the judge failed to appropriately consider the length of the parole period. The respondent, The Queen, submitted that the appeal should be dismissed. The dispute came before the court, which had to determine whether the judge's approach to sentencing was flawed. The court examined whether the judge failed to give effect to the intention to impose a relatively long parole period, and whether the judge erred in applying the fifth limb of R v Verdins. The court also considered whether any errors in the sentencing process rendered the total effective sentence or the non-parole period invalid.

The court found that the judge did not fail to give effect to the intention to impose a relatively long parole period, and that there was no error in applying the fifth limb of R v Verdins. The court held that the total effective sentence and the non-parole period were not vitiated by any error, and that the sentence was appropriate in the circumstances. The appeal was dismissed, and the respondent's application for leave to appeal was refused.

The court's reasoning was based on a careful analysis of the sentencing principles and the evidence presented in the case. The court found that the judge had considered all relevant factors and had exercised their discretion appropriately. The court held that the sentence imposed was proportionate to the seriousness of the offences and was in the best interests of the community.

The final orders of the court were that the appeal be dismissed, and that the respondent's application for leave to appeal be refused. The sentence imposed by the trial judge remained in place, and the appellant was required to serve the full term of his sentence.

Orders