R v Airey - [2006] VSCA 31

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 315 of 2005

THE QUEEN
	v.
ROBERT JOHN AIREY

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JUDGES:	CHERNOV and EAMES, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2006
DATE OF JUDGMENT:	23 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 31

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Criminal law – Sentencing – Burglary, theft, obtaining property by deception – Offences committed while on parole – Sentencing error – Offender re-sentenced – Multiple prior convictions – Delay – Rehabilitation efforts while on bail – Hardship on wife of offender – Exercise of mercy – Offender 56 years at time of offence, 58 at time of appeal – Offender sentenced to total effective sentence of 15 months’ imprisonment with 9 months suspended – Sentencing Act 1991 s.16(3B).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T. Kassimatis	Haines & Polites, Solicitors

CHERNOV, J.A.:

I invite Eames, J.A. to give the first judgment.

EAMES, J.A.:

The appellant pleaded guilty in the County Court to one count of burglary, two counts of theft and one count of obtaining property by deception. Each of those offences carried a maximum penalty of ten years' imprisonment. In addition, he pleaded guilty to one count of possession of cannabis, carrying a maximum penalty of a $500 fine.

The dishonesty offences were committed at a residential property owned by a businessman who had employed one David Sharp. After working for the businessman for some years and gaining insight into his business and private lives, Sharp believed that his employer kept a substantial sum of cash at his home in Bacchus Marsh. Sharp knew the appellant, and upon Sharp being dismissed from his job by the businessman, he told the appellant and the appellant's co-offender, Lisa Thomas, about the hoard of cash said to be located at the Bacchus Marsh home.

On 8 October 2003, the appellant, who was then aged 56 years (and nearly 59 at the time of the appeal), and Thomas, who was then aged 32 years, broke into the home by smashing a glass back door. Upon entry they found no cash, but they stole jewellery, stereo equipment, computer equipment, cameras, sporting goods, telephones, and a motor vehicle. In all, the value of the stolen property was more than $16,000. In addition, the offenders stole a Commonwealth Bank Keycard belonging to a daughter of the businessman and used that later to obtain $800 cash from an automatic teller machine, employing the PIN number for the account which was with the Keycard.

Upon investigation, police identified the appellant and the co-offender by virtue of security footage taken when they used the stolen credit card. On 17 October 2003, the appellant was arrested and admitted the offences, but declined to name the co-offenders. The motor vehicle was recovered by virtue of his information, and when police searched his premises they found a small amount of cannabis, which was accepted to be for personal…

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 R v Airey

Details

AGLC: R v Airey [2006] VSCA 31
Case: [2006] VSCA 31
Decision Date: 23 February 2006

CaseChat Overview and Summary

In the case of R v Airey, the appellant was convicted of multiple criminal offences, including burglary, theft, and obtaining property by deception. These offences were committed while the appellant was on parole for prior convictions. The appellant appealed against his sentence, arguing that the sentencing court had erred in its calculations. The appeal was heard in the Court of Appeal of the Supreme Court of South Australia.

The primary legal issue the court had to address was whether the sentencing court had made an error in calculating the total effective sentence, particularly regarding the length of time the appellant would spend in custody. Additionally, the court had to consider the appellant's age, his efforts at rehabilitation while on bail, the delay in the appeal process, and the hardship experienced by his wife due to the sentencing decision. The court also needed to weigh these factors against the appellant's extensive criminal history.

The Court of Appeal found that the sentencing court had indeed made an error in calculating the total effective sentence. The court acknowledged the appellant's age at the time of the offence and his efforts at rehabilitation while on bail. It also took into account the delay in the appeal process and the hardship experienced by the appellant's wife. Ultimately, the court exercised its discretion under the Sentencing Act 1991, reducing the appellant's sentence to a total effective sentence of 15 months’ imprisonment with 9 months suspended. The court balanced the need for punishment and deterrence with the principles of mercy and rehabilitation.

The final orders of the court were that the appellant's original sentence be set aside, and a new sentence be imposed, consisting of 15 months’ imprisonment with 9 months suspended. The court also noted that the appellant had already served a significant portion of his original sentence, which was considered in the re-sentencing process.

Orders