R v Andreason - [2004] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 83 of 2004

THE QUEEN
	v.
JASON KIRK ANDREASON

---

JUDGES:	WINNEKE, P., ORMISTON and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2004
DATE OF JUDGMENT:	9 September 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 169

---

Criminal law - Sentence - Conspiracy to escape - Sentence of 9 months' imprisonment - Lesser sentence imposed on co-conspirator - Disparity - Manifest excess - Appellant resentenced.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman, S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. T. Kassimatis	Brugman Mellas

WINNEKE, P.:

I invite Charles, J.A. to give the first judgment in this appeal.

CHARLES, J.A.:

The appellant and Rachel Ann Kain both pleaded guilty in the County Court at Melbourne on 14 April 2004 to a presentment alleging one count of conspiracy to escape contrary to s.321(1) of the Crimes Act 1958. The maximum penalty for the offence was five years' imprisonment. A plea was heard and on 14 April the judge convicted and sentenced the appellant to be imprisoned for nine months. The co-accused Kain was sentenced to be imprisoned for six months, and the judge ordered that three months of her sentence be suspended for a period of two years. The appellant was granted leave to appeal under s.582 of the Crimes Act on 11 June 2004.

By grounds substituted on 31 August, the appellant now attacks the sentence claiming that -

1. In the circumstances the sentence imposed was manifestly excessive;
2. The sentence offended the principle of totality;
3.The sentence was manifestly disparate to the sentence imposed on the co-offender.

The circumstances of the offending were as follows. The appellant was in custody at Langi Kal Kal correction facility, serving a 5½-year sentence of imprisonment imposed in the County Court on 2 March 2001 for armed robbery, burglary and theft. Rachel Kain was the appellant's girlfriend. She had been introduced to him by a fellow prisoner with whom she shared a cell at Deer Park. Her cell mate had been corresponding with the appellant while she was serving her sentence and after she was released from custody, Kain began communicating with the appellant both by correspondence and by telephone. At this point, Kain had never met the appellant face to face.

On 12 October 2003 at 5 p.m. a telephone conversation took place between the appellant and Kain, who had by then been released from custody. In this conversation an escape plan was discussed, during which it was arranged that the appellant would be picked up by Kain some time after 9 p.m., one kilometre from Beaufort on the Melbourne side of that town. The telephone call was monitored by a prison officer at Langi Kal Kal. As a result the appellant was "locked down" and transferred to Ararat Prison, a higher security gaol. The plan to escape was thus thwarted, but Kain remained unaware of what had occurred after the conversation and proceeded…

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 Andreason

Details

AGLC: R v Andreason [2004] VSCA 169
Case: [2004] VSCA 169
Decision Date: 9 September 2004

CaseChat Overview and Summary

In the case of R v Andreason, the appellant stood convicted, along with a co-conspirator, for conspiracy to escape lawful custody. The pair were apprehended while in the process of attempting to escape from a correctional facility, leading to their criminal charges. The matter was heard in the higher court, which was required to review the sentence imposed on the appellant. The central issue before the court was whether the sentence imposed by the lower court was manifestly excessive, particularly in light of the lesser sentence given to the co-conspirator. The court was tasked with ensuring the sentence was proportionate to the offence and not disproportionate when compared to the sentence of the co-conspirator.

The court examined the sentencing principles applicable to the case, particularly focusing on the principle of parity in sentencing for co-conspirators. It considered the severity of the offence, the appellant's role in the conspiracy, and the necessity of deterrence and denunciation. The court found that while the offence was serious, the sentence of nine months' imprisonment imposed on the appellant was manifestly excessive when compared to the six-month sentence given to the co-conspirator. This disparity led the court to conclude that the sentence was not just and did not reflect the appropriate balance between the needs of society, the offender, and the victims.

Consequently, the court determined that the sentence was manifestly excessive and did not align with the sentencing principles. The appellant was resentenced to a term of imprisonment that better reflected the principles of justice and proportionality. The court's decision underscored the importance of ensuring that sentences for co-conspirators are commensurate and just, avoiding significant disparities that could undermine the integrity of the sentencing process.

Orders