Peter Mai v The Queen - [2017] VSCA 1

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0206

PETER MAI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AND KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 January 2016
DATE OF JUDGMENT:	18 January 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 1
JUDGMENT APPEALED FROM:	DPP v Tsivicos, Mai [2015] VCC 1555 (Judge Chettle)

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CRIMINAL LAW – Application for leave to appeal against sentence – Theft – Applicant sentenced to 20 months’ imprisonment with 12 month community correction order — Co-offender with significant criminal history sentenced to 3 years’ imprisonment with non-parole period of 2 years for same offence – Whether parity principle misapplied – Whether sentence manifestly excessive – Appeal allowed on parity ground – Applicant resentenced to 16 months’ imprisonment and 12 month community correction order – Sentencing Act 1991 s 5(2AA)(a) considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr V Andreou	Christopher James Lawyers
For the Crown	Ms D Piekusis	John Cain, Solicitor for Public Prosecutions

WEINBERG JA

KYROU JA:

Introduction and Summary

On 13 October 2015, the applicant was convicted by jury of one charge of theft, the maximum penalty for which is 10 years’ imprisonment.[1] On 29 October 2015, he was sentenced to 20 months’ imprisonment and ordered to serve a community correction order (‘CCO’) for a period of 12 months with a special condition that he perform 200 hours of unpaid community work to commence upon completion of the term of imprisonment.[2]
[1]Crimes Act 1958 s 74(1).
[2]DPP v Tsivicos, Mai [2015] VCC 1555 (‘Reasons’).

The applicant’s co-offender, Savvacis Tsivicos, was convicted by the jury of the same offence and was sentenced to 3 years’ imprisonment with a non-parole period of 2 years.

The applicant seeks leave to appeal his sentence on the basis that the judge misapplied the parity principle and imposed a sentence that is manifestly excessive.

For the reasons that follow, the application for leave to appeal will be granted, the appeal will be allowed and the applicant will be resentenced as set out at [46] below.

Circumstances of offending

On Friday 1 November 2013, the Toll IPEC depot at the Chadstone Shopping Centre received a large delivery of televisions. At 3:20 pm that day, a phone call was received by the manager of the Toll depot. Someone purporting to be from Harvey Norman, the company that was to ultimately receive the televisions, claimed to need the televisions for a store promotion over the coming weekend. It was arranged that a truck would be sent to collect the televisions later that day.

The caller was not from Harvey Norman, but someone setting up the theft of the televisions. At 5:07 pm, a truck bearing false number plates and driven by the applicant, arrived at the Toll depot. Mr Tsivicos was sitting in the passenger seat of the truck. The manager loaded the truck to capacity with 110 televisions which had a total wholesale value of $161,105.

Following a…

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 Peter Mai v The Queen

Details

AGLC: Peter Mai v The Queen [2017] VSCA 1
Case: [2017] VSCA 1
Decision Date: 18 January 2017

CaseChat Overview and Summary

Peter Mai filed an application for leave to appeal against his sentence with the Court of Appeal in relation to a theft conviction. The primary dispute was whether the sentence of 20 months' imprisonment, combined with a 12-month community correction order, was appropriate given the disparity with the sentence of a co-offender who had a more extensive criminal history and was sentenced to 3 years' imprisonment with a non-parole period of 2 years for the same offence. The core issue before the court was whether the sentencing principles were correctly applied, particularly the principle of parity, and whether the sentence was manifestly excessive.

The court was tasked with examining the sentencing principles as outlined in the Sentencing Act 1991, specifically section 5(2AA)(a), which mandates that sentences should be proportionate to the seriousness of the offence and not be excessively disproportionate to the sentence of co-offenders. The court considered whether the disparity in sentences between Mai and his co-offender justified a reconsideration of Mai's sentence. It also evaluated whether the original sentence was manifestly excessive, taking into account the totality of the circumstances, including the nature of the offence and the offender’s criminal history.

Upon reviewing the evidence, the court found that the principle of parity had not been appropriately applied. The disparity in sentencing between Mai and his co-offender was significant and warranted a re-evaluation of Mai's sentence. The court deemed Mai’s original sentence manifestly excessive in comparison to that of his co-offender. Consequently, the appeal was allowed on the ground of parity, and Mai was resentenced to 16 months' imprisonment and a 12-month community correction order. This resentence aimed to align more closely with the principle of proportionality and ensure consistency in sentencing for similar offences.

Orders