Pasi v The Queen - [2012] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0073
FOISA PASI	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN JA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 September 2012
DATE OF JUDGMENT	3 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 246
JUDGMENT APPEALED FROM	DPP v Ulutui, Fepuleai and Pasi (Unreported, County Court of Victoria, Judge Wood, 23 February 2012)

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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to one charge of aggravated burglary and one charge of armed robbery – Sentenced to 4 years’ imprisonment with a minimum non-parole period of 2 years 9 months – Appellant 20 years old at time of offending – Whether extent of cumulation ordered manifestly excessive – Whether sentence and non-parole period manifestly excessive – Whether trial judge gave sufficient weight to appellant’s youth – Offences elementally and factually discrete – Grave offending – Sentence within sound discretionary range – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Leanne Warren & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with T Forrest AJA.

T FORREST AJA:

On 5 October 2011 the appellant pleaded guilty before the County Court to one charge of aggravated burglary and one charge of armed robbery. On 23 February 2012, following a plea hearing on 5 and 6 October and 8 December 2011, the appellant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary
[s 77 Crimes Act 1958 (Vic)]
25 years’ imprisonment
2 years’ imprisonment 1 year

2 Armed robbery
[s 75A Crimes Act 1958 (Vic)]
25 years’ imprisonment
3 years’ imprisonment Base

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years, 9 months’ imprisonment

Pre-sentence Detention Declared: 164 days

6AAA Statement: 5 years, 5 months’ imprisonment, with a non-parole period of 3 years, 9 months’ imprisonment

Other orders:
Compensation of $50 to be paid to Colin Graham
Forensic sample retention order
Factual background

Colin Graham worked as the night manager of a Formula One Hotel. He resided on the first floor of the hotel. Access to the first floor was via a security office that contained the CCTV hard drive which operated all of the internal and external cameras at the hotel. From 10.00pm onwards the front door of the hotel was closed to the general public. A swipe card, which was issued to hotel guests, was required

to access the front door after that time. Entry into Mr Graham’s room required a key that only he and the hotel manager had.

On 10 February 2010, Mr Graham and his partner Vikki Imeson retired to bed some time after 11.30pm. Shortly after 2.00am on 11 February 2010 they were woken when the appellant, together with his co-offender Laki Ulutui, entered their room. The appellant wore gloves and was armed with a handgun. This conduct constituted the charge of aggravated…

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 Pasi v The Queen

Details

AGLC: Pasi v The Queen [2012] VSCA 246
Case: [2012] VSCA 246
Decision Date: 3 October 2012

CaseChat Overview and Summary

Pasi appealed against his sentence, having pleaded guilty to one charge of aggravated burglary and one charge of armed robbery. The trial judge sentenced him to 4 years' imprisonment with a non-parole period of 2 years and 9 months. The appellant was 20 years old at the time of the offending. The primary issues were whether the extent of the cumulation and the sentence itself were manifestly excessive, and if the trial judge had given sufficient weight to the appellant's youth. The offences were both elementally and factually discrete, and the court considered the gravity of the offending.

The court examined the totality principle and noted that while the offences were discrete, the gravity of the offending warranted a significant sentence. It was held that the trial judge had appropriately considered the appellant's youth but had to balance this against the seriousness of the crimes. The court found that the sentence and the non-parole period were within the sound discretionary range and did not consider them to be manifestly excessive. The appeal was dismissed as there was no point of principle involved.

The court concluded that the trial judge had appropriately exercised their discretion in sentencing, taking into account all relevant factors, including the appellant's age and the seriousness of the offences. The sentence imposed was appropriate and not manifestly excessive. The appeal was dismissed, and no orders were made as there was no point of principle of general legal significance.

Orders