R. v. Cotry - [2002] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 247 of 2001

THE QUEEN
	v.
DESIREE JIMMY COTRY

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2002
DATE OF JUDGMENT:	13 February 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 13

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Criminal law - Sentence - Armed robbery with a syringe - Youthful offender - Sentence of two years with a non-parole period of one year not manifestly excessive - Failure to suspend sentence not a sentencing error.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr R. Allen	Youth Advocacy & Legal Service

WINNEKE, P.:

On 18 September 2001 the appellant, who is now aged 22, pleaded guilty in the County Court at Melbourne to one count of armed robbery. The offence alleged the theft of money and a mobile phone under threat of a syringe. The victim was a 15-year-old boy. The appellant admitted prior convictions in March 2000 for possessing a drug of dependence and using a drug of dependence. After hearing a plea in mitigation, the judge sentenced the appellant to a term of imprisonment of 2 years and directed that he serve a non-parole period of 12 months.

On 8 February this year this Court granted leave to the appellant to appeal against the sentence imposed.

Before turning to the grounds of appeal it is necessary to refer briefly to the circumstances of the robbery.

On 4 March 2001 the appellant was 21 years of age. On that day, at about 10.15 in the evening, he was in the vicinity of the Glen Waverley railway station with a friend, whom he declined to identify in his record of interview with the police. They were in search of a target to rob so that they could get money to satisfy their drug addiction. He had in his possession a syringe. The victim they chose was, as I have said, a 15-year-old boy who had been to a restaurant with friends and who was relieving himself behind the toilets of the railway station. The victim was accosted and threatened and eventually handed to the appellant his wallet, which contained $100. He was also robbed of a mobile phone which he had in his pocket. The appellant was identified from surveillance tapes taken from security cameras in operation at the station. He later confessed his participation in the robbery to the police and attributed his conduct to his need for drugs.

On the plea, the appellant's counsel recognised that a sentence of imprisonment was appropriate but contended that, taking into account the appellant's background and youth and the surrounding circumstances, the sentence should be wholly suspended. The surrounding circumstances relied upon included the appellant's addiction to heroin and the very tight and supportive family from which he came. The family had been concerned to wean the appellant from the substances which he had been using over a substantial period and…

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. Cotry

Details

AGLC: R. v. Cotry [2002] VSCA 13
Case: [2002] VSCA 13
Decision Date: 13 February 2002

CaseChat Overview and Summary

In the case of R. v. Cotry, the defendant was convicted of armed robbery using a syringe and was sentenced to two years imprisonment with a non-parole period of one year. The defendant appealed the sentence, arguing that it was manifestly excessive and that the court had erred in not suspending the sentence. The appeal was heard in the court of criminal appeal. The central legal issues in the appeal were whether the sentence imposed was manifestly excessive and whether the failure to suspend the sentence constituted a sentencing error.

The court of criminal appeal considered the nature of the offence, which involved the use of a syringe as a weapon during a robbery. Despite the defendant's youth, the court emphasised the seriousness of the crime and the need for deterrence. The court found that the sentence of two years with a non-parole period of one year was not manifestly excessive, given the circumstances. The court also examined the principle of sentencing suspension and concluded that the sentencing judge had appropriately exercised their discretion in not suspending the sentence. The court held that the sentence was appropriate and did not represent a sentencing error.

The appeal was dismissed, and the original sentence was upheld. The court affirmed that the sentence imposed was within the range of appropriate penalties for the offence committed. The defendant's appeal against the sentence was unsuccessful, and the original sentence remained in place.

Orders