R v Carmichael - [2008] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 178 of 2007

THE QUEEN
	v
SCOTT JOHN CARMICHAEL

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JUDGES:	BUCHANAN, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2008
DATE OF JUDGMENT:	31 January 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 10

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Criminal Law – Sentencing – Armed robberies in company – Use of disguises – Offender 22 years at time of offences – Whether sentencing judge gave sufficient regard to youth, plea of guilty and drug addiction – Six years’ imprisonment with a non-parole period of three years not manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr S McNicol	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	C McLennan & Co

BUCHANAN JA:

I will ask Kellam JA to deliver the first judgment.

KELLAM JA:

On 28 May 2007 the applicant pleaded guilty before the County Court at Melbourne to three counts of armed robbery, one count of theft and one count of possession of a drug of dependence. He was sentenced to the following terms of imprisonment:

·Count 2      - armed robbery - three years’ imprisonment.
·Count 4       - armed robbery - three years’ imprisonment.
·Count 6      - armed robbery - three years’ imprisonment.
·Count 8      - theft - six months’ imprisonment.
·Count 11     - possession of a drug of dependence - one month’s imprisonment.

The sentencing judge ordered that 18 months of the sentence imposed on count 4 and 18 months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 2. This amounted to a total effective sentence of six years’ imprisonment. Her Honour directed that the applicant serve a minimum of three years’ imprisonment before becoming eligible for parole.

The facts

Count 2 – armed robbery

On 25 September 2006 the applicant, in company with another person, went to a milk bar owned by a Mr Wu. Both the applicant and his accomplice were disguised by having their faces covered. The applicant was armed with a baseball bat. His accomplice was armed with a knife. Upon entering the milk bar the

applicant’s accomplice demanded money from the wife of Mr Wu. He held his knife towards her. The applicant’s accomplice went behind the counter to the cash register and tried to open it but was unable to do so. Accordingly, he took the register and together with the applicant ran out of the shop. In addition he took two tins of coins with him. The applicant and his accomplice escaped in a motor car driven by a third person. The money stolen totalled approximately $500.

Count 4 – armed robbery

Count 4 related to events which took place on 23 October 2006. At approximately 1.15 am that day the applicant, together with two accomplices, entered a Caltex service station in Keysborough. All three men disguised their appearances by wrapping cloth around their faces. The applicant was armed with a small…

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 Carmichael

Details

AGLC: R v Carmichael [2008] VSCA 10
Case: [2008] VSCA 10
Decision Date: 31 January 2008

CaseChat Overview and Summary

The case of R v Carmichael involved the respondent, who was convicted of multiple armed robberies committed while in the company of others and using disguises. The appellant sought to appeal against the sentence of six years’ imprisonment with a non-parole period of three years, arguing that the sentencing judge had not given sufficient regard to his youth at the time of the offences, his plea of guilty, and his drug addiction. The appeal was brought before the court with the objective of having the sentence reviewed.

The central legal issues before the court were whether the sentencing judge appropriately considered the mitigating factors presented and whether the sentence imposed was manifestly excessive. The appellant contended that his youth, the fact that he pleaded guilty, and his drug addiction were not sufficiently taken into account. The court was required to examine the sentencing judge’s assessment of these factors and determine if the sentence was disproportionate in light of them.

The court examined the sentencing judge’s remarks and concluded that the judge had indeed considered the mitigating factors, albeit not in extensive detail. The court found that the sentence imposed was not manifestly excessive, as it was within the range of penalties that could be considered appropriate for the crimes committed. The appellant’s youth, plea of guilty, and drug addiction were acknowledged, but the gravity of the offences and the need for deterrence and denunciation warranted the sentence given. The court dismissed the appeal, finding that the sentence was not manifestly excessive.

The final orders of the court were to dismiss the appeal and confirm the original sentence of six years’ imprisonment with a non-parole period of three years.

Orders