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]…
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- AGLC
- Pitone v The Queen [2017] VSCA 3
- Case
- [2017] VSCA 3
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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