R v Beck

Case [2005] VSCA 11 8 February 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5 of 2004

THE QUEEN
	v.
ROBERT DANIEL BECK

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2005
DATE OF JUDGMENT:	8 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 11

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Criminal law – Sentencing – Armed robbery – Applicant sentenced in respect of other crimes while awaiting trial in respect of subject offences – Total effective sentence in respect of subject offence of six and a half years with a non-parole period of five years not manifestly excessive but totality of sentences so imposed and earlier imposed in respect of other offences crushing – Appeal upheld – Re-sentenced to six and a half years with non-parole period of five years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Ms J. Dixon	Victoria Legal Aid

NETTLE, J.A.:

On 5 November 2003 the applicant was arraigned before Judge Neesham in the County Court at Melbourne on one count of attempted armed robbery (Count 1), to which he pleaded not guilty, and one count of intentionally causing serious injury (Count 2), to which he pleaded guilty, and one alternative count of recklessly causing serious injury (Count 3), which was permanently stayed. After a trial which concluded on 7 November 2003, the jury returned a verdict of not-guilty on Count 1 and were discharged and the judge thereupon remanded the applicant in custody to appear for sentencing on a date to be fixed. After hearing a plea in mitigation and receiving a pre-sentence report, on 11 December, 2003 the judge sentenced the applicant on Count 2 to a term of imprisonment of six and a half years, of which five and a half years were to be served cumulatively upon other State imposed sentences then being served, and his Honour set a new non-parole period of six years. The number of days of pre-sentence detention was declared as being 120 days.

On 20 August 2004, Buchanan, J.A. refused the applicant’s application for leave to appeal against sentence pursuant to s. 582 of the Crimes Act 1958 and the applicant now seeks leave to appeal from this court.

The facts

The offence occurred on 14 September 2002 after the applicant had chased the victim, Mustafa Savran across a shopping centre car park at Springvale. Despite a conflict of evidence, the judge found in the applicant’s favour that the applicant had undertaken the chase in the belief that Savran had stolen $50 from the applicant’s girl friend. As his Honour observed, however, that did not justify the applicant’s behaviour.

When interviewed by police following the commission of the offence, the applicant told them that:

“I was at Springie [meaning Springvale] and then some fucking swine stuck his hand in my fucking window and grabbed $50, done a bolt on me, right. And my girlfriend can’t run because she’s got a broken leg, so I jumped out of…

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.

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Details

AGLC: R v Beck [2005] VSCA 11
Case: [2005] VSCA 11
Decision Date: 8 February 2005

CaseChat Overview and Summary

The case of R v Beck involved an appellant who was convicted of armed robbery and related charges. The appellant was sentenced to a total effective term of six and a half years, with a non-parole period of five years. The appellant had also been sentenced for other unrelated crimes while awaiting trial for the armed robbery charges. The appellant appealed the sentence, arguing that the cumulative effect of the sentences was unjust and excessive.

The central legal issues before the court were whether the sentence imposed for the armed robbery charges was manifestly excessive and whether the totality of the sentences imposed for all the crimes, including the earlier ones, was crushing. The court had to consider the principles of sentencing, including the need for punishment, deterrence, and proportionality, while also taking into account the appellant's personal circumstances and the impact of the sentences on them.

The court found that while the sentence for the armed robbery charges was not manifestly excessive, the totality of the sentences imposed, including those for the earlier crimes, was crushing. The court recognised that the appellant's earlier convictions and sentences had not been taken into account when imposing the sentence for the armed robbery charges, leading to an unjust cumulative effect. The court held that the appeal should be upheld and the appellant re-sentenced. The court re-sentenced the appellant to six and a half years with a non-parole period of five years, taking into account the totality of the sentences already imposed.

The court's final orders were that the appeal be upheld and the appellant re-sentenced to six and a half years with a non-parole period of five years. The court emphasised the importance of considering the totality of sentences imposed on an offender and ensuring that the cumulative effect of those sentences is not crushing. The court also noted that the appellant's earlier convictions and sentences should have been taken into account when imposing the sentence for the armed robbery charges.

Orders