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Pitone v The Queen

Pitone v The Queen

Case [2017] VSCA 3 25 January 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0099

LIAH PITONE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 January 2017
DATE OF JUDGMENT:	25 January 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 3
JUDGMENT APPEALED FROM:	[2016] VCC 549 (Judge Cannon)

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CRIMINAL LAW — Sentence — Appeal — Attempted armed robbery and recklessly causing injury — Sentenced to be imprisoned for 4 years with non-parole period of 2 years and 6 months — Youth — Cognitive deficits — Appeal allowed — Re-sentenced to be imprisoned for 3 years with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms R Sleeth with Mr M Reardon	Victoria Legal Aid
For the Crown	Mr D Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

In the County Court, on 15 March 2016, the appellant pleaded guilty to one charge of attempted armed robbery[1] (charge 1) and to one charge of recklessly causing injury[2] (charge 2). The judge sentenced him on 29 April 2016, to be imprisoned for three years and six months on the first charge and for 12 months on the second charge. Six months of the sentence on the second charge was ordered to be served cumulatively with that on the first, leading to a total effective sentence of four years’ imprisonment. The judge fixed a non-parole period of two years and six months’ imprisonment.
[1]Crimes Act 1958 s 75A and s 321M. The maximum sentence is 20 years’ imprisonment.
[2]Crimes Act 1958 s 18. The maximum sentence is 5 years’ imprisonment.

On 1 September 2016, I granted leave to the appellant ‘on the papers’ to appeal against the sentence[3] on a single ground:
[3]Pitone v The Queen (Unreported, 1 September 2016, VSCA, Priest JA) (‘Leave reasons’).

The sentence on charge 1 (attempted armed robbery) is manifestly excessive when taking into account:
(a) Matters particular to the Applicant, including:
(i) The Applicant’s youth;
(ii) The Applicant’s cognitive impairment;
(iii)The Applicant’s admissions and plea of guilty at the earliest stage;
(iv)The Applicant’s expressions of remorse;
(v) The Applicant’s prospects of rehabilitation; and

(b) Current sentencing practices.

Having now entertained full oral argument, I would allow the appeal.

The appellant’s offending

As I observed when granting leave, the appellant’s offending objectively was very serious.

On the plea hearing, the prosecutor described the offending as follows:[4]
[4]Minor adjustments have been made to syntax and punctuation.

The [appellant] was born on 30 June 1997. At the time of the offending he was 18 years old ... The victim in this matter is Mary Aceska.
On 14 September 2015, at approximately 1.45 pm, [the appellant] entered a ‘Cellarbrations’ liquor store in St Albans. He was wearing a cap with a dark navy hoodie pulled up over his head and black rimmed see through glasses. He was carrying a backpack in front of him. Ms Aceska was working at the liquor store.
[The appellant]…

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 Pitone v The Queen

Details

AGLC: Pitone v The Queen [2017] VSCA 3
Case: [2017] VSCA 3
Decision Date: 25 January 2017

CaseChat Overview and Summary

In the case of Pitone v The Queen, the appellant was convicted for his involvement in an attempted armed robbery and for recklessly causing injury to another individual. The appeal was directed towards the sentence imposed by the trial judge, which included a custodial term of 4 years with a non-parole period of 2 years and 6 months. The appellant's legal team argued that the sentence was excessive, particularly in light of his youth and cognitive deficits. The court was tasked with determining whether the original sentence was appropriate, taking into account the mitigating factors presented by the appellant's legal team.

The primary legal issues addressed by the court were whether the trial judge had appropriately considered the mitigating factors in the appellant's background and whether the sentence imposed was proportionate to the severity of the crimes committed. The court noted that the appellant had a history of cognitive deficits, which may have impacted his decision-making abilities during the commission of the crimes. Additionally, the court was required to assess whether the sentence imposed was commensurate with the gravity of the attempted armed robbery and the recklessly caused injury. The court also had to consider the principle of proportionality in sentencing, which requires that the punishment fit the crime.

The court found that the trial judge had not given sufficient weight to the appellant's youth and cognitive deficits when determining the sentence. The court emphasised that these factors should have been considered as mitigating circumstances, which could have led to a more lenient sentence. The court also found that the original sentence was not proportionate to the severity of the crimes committed, given the mitigating factors present in the appellant's background. As a result, the appeal was allowed, and the appellant was re-sentenced to a term of imprisonment of 3 years, with a non-parole period of 18 months. This re-sentenced term was considered more appropriate, taking into account the mitigating factors presented by the appellant's legal team.

Orders