Poutai v The Queen - [2011] VSCA 382

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0357

WALTER CHRISTOPHER POUTAI
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2011
DATE OF JUDGMENT:	18 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 382
JUDGMENT APPEALED FROM:	DPP v Poutai (Unreported, County Court of Victoria, Judge Mason, 13 September 2010)

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CRIMINAL LAW – Sentence – Armed robbery, intentionally causing serious injury and false imprisonment – Pleas of guilty – Sentenced to a total effective sentence of five years and six months’ imprisonment – Non-parole period of three years and three months – Co-offender sentenced as a youthful offender – Parity – Differences in sentencing regimes for adult and juvenile offenders – Children, Youth and Families Act 2005, s 362(1) – Whether Crown required to tender on the plea statements in co-offender’s record of interview about the appellant’s role in the offending – Double punishment in relation to false imprisonment sentence – Whether base sentence and non parole period manifestly excessive – Appeal allowed in part – Re-sentence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Victoria Legal Aid
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Harper JA to deliver the first judgment.

HARPER JA:

On 14 January 2010, at about 3.30 am, the appellant, an adult of 30 years of age, drove his car to a point approximately 50 metres north of the service station in Albert Street, Sebastopol. He and his co‑offender, a young man aged 17 named Jamie Brincat, walked from the car to the shop entrance. Given the hour, it is not surprising that the customer's door was locked. But the station's console operator, Mr Ranjiv Katta, was in attendance. When the appellant and Brincat approached, Mr Katta mistook them for customers. By pressing the security switch, he enabled them to open the doorway.

Part of what happened thereafter was captured on CCTV. Brincat entered, wearing a hooded top and carrying a concealed 18‑inch machete. He walked quickly towards the counter, jumped over it, grabbed Mr Katta and demanded money.

The appellant entered shortly after Brincat. He was similarly attired. Once behind the counter, he struck Mr Katta in the face with his clenched fist. Meanwhile, Brincat began to search the cash register for money, while both Brincat and the appellant made various shouted demands of their victim.

One of these demands was that Mr Katta open the safe. This was located in the manager's office, into which the appellant pushed the victim. Once inside, the two offenders closed the door. One of them broke the CCTV camera.

Their victim did as he had been told. The safe was opened. After some two minutes inside the office, the offenders and Mr Katta returned to the front counter, where the appellant removed coins from a change machine and began taking cartons of cigarettes, which he placed into plastic bags.…

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 Poutai v The Queen

Details

AGLC: Poutai v The Queen [2011] VSCA 382
Case: [2011] VSCA 382
Decision Date: 18 November 2011

CaseChat Overview and Summary

In the case of Poutai v The Queen, the appellant, Poutai, appealed against his sentence for armed robbery, intentionally causing serious injury, and false imprisonment. The appellant had pleaded guilty to all charges. He was sentenced to a total effective sentence of five years and six months’ imprisonment, with a non-parole period of three years and three months. His co-offender, who was a juvenile, was sentenced as a youthful offender under the Children, Youth and Families Act 2005.

The legal issues before the court were whether the Crown was required to tender on the plea statements in the co-offender’s record of interview about the appellant’s role in the offending and whether the base sentence and non-parole period were manifestly excessive. The appellant argued that the parity principle required the Crown to tender the co-offender’s record of interview, which contained admissions about the appellant’s role in the offending. The appellant also argued that the base sentence and non-parole period were manifestly excessive. The Crown argued that the parity principle did not require the Crown to tender the co-offender’s record of interview and that the base sentence and non-parole period were not manifestly excessive.

The court found that the parity principle required the Crown to tender the co-offender’s record of interview because it contained admissions about the appellant’s role in the offending. The court also found that the base sentence and non-parole period were manifestly excessive. The court found that the appellant’s role in the offending was less significant than that of the co-offender, and that the co-offender’s sentence was significantly less severe than the appellant’s sentence. The court also found that the false imprisonment sentence was a double punishment because it was included in the armed robbery sentence. The court allowed the appeal in part and re-sentenced the appellant to a total effective sentence of three years and nine months’ imprisonment, with a non-parole period of two years and three months.

Orders