R v Deering - [2000] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 35 of 2000

THE QUEEN

SHANE ANTHONY DEERING

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2000
DATE OF JUDGMENT:	17 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 181

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Criminal law – Sentence – Armed robbery, theft and obtaining property by deception – Co-offenders – No manifest disparity in sentences – Different sentencing regimes – Sentence of two years and six months’ imprisonment for youthful offender not excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C. and Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. B.R. Keating	Slink & Keating

WINNEKE, P.:

I will invite Buchanan, J.A. to deliver the first judgment in this appeal.

BUCHANAN, J.A.:

On the afternoon of 16 November 1998 two men entered a milk bar at Hallam. One of the men hung back by the shop window while the other approached the proprietor of the milk bar, seized him by the wrist and produced a syringe which he held near the proprietor's wrist and told him to "Get the money" The order was obeyed and money from the till was placed on the bench. The assailant then dragged the proprietor by the wrist to the back of the store where he released him. The men escaped from the shop with between $380 and $400. They were later identified as the appellant and one Derryn Riley.

Riley and the appellant were employed as plasterers by Tony Tomic. Tomic gave the appellant and Riley a Makita screw-gun to use on a plastering job to be performed the following day. Neither the appellant nor Riley appeared for work and Tomic has never set eyes on them again. The appellant pawned the screw-gun at a Cash Converters store.

On 8 February 2000 the appellant pleaded guilty to a presentment containing one count of armed robbery, one count of theft and one count of obtaining property by deception. The second and third counts arose from the pawning of the screw-gun. The appellant was sentenced to a term of two years and six months' imprisonment on the count of armed robbery and to a term of one month's imprisonment on each of the counts of theft and obtaining property by deception. The sentences were made concurrent, producing a total effective sentence of two years and six months' imprisonment. A non-parole period of 18 months was fixed.

The appellant was granted leave to appeal by me pursuant to the provisions of s.582 of the Crimes Act 1958.

The appellant is now 27 years of age. He has seven prior convictions arising from cultivating, possessing and using cannabis. In respect of four of the charges the appellant was released without conviction upon entering into a recognisance to be of good behaviour, and in respect of three of the charges he was fined a total of $900.

The appellant comes from a respectable and supportive family.…

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 Deering

Details

AGLC: R v Deering [2000] VSCA 181
Case: [2000] VSCA 181
Decision Date: 17 October 2000

CaseChat Overview and Summary

The case of R v Deering involved the appellant, who was convicted of armed robbery, theft, and obtaining property by deception. The appellant was one of several co-offenders involved in the commission of these offences. The appellant's sentence was two years and six months' imprisonment, and this was the subject of appeal on the basis that it was excessive. The case was heard in the Court of Appeal.

The central legal issue was whether the appellant's sentence was manifestly excessive. The appellant argued that there was a manifest disparity in the sentences of co-offenders, given that one of them received a shorter sentence. The Crown, on the other hand, argued that the sentence was appropriate, and that there was no manifest disparity because the co-offenders were sentenced under different regimes. The court had to determine whether the appellant's sentence was excessive and whether there was a manifest disparity in the sentences of co-offenders.

The court held that the sentence was not excessive. The court noted that the appellant was a youthful offender and that the sentence was within the range of sentences that could be imposed for the offences. The court also held that there was no manifest disparity in the sentences of co-offenders because they were sentenced under different regimes. The court concluded that the sentence was appropriate and that there was no manifest disparity in the sentences of co-offenders. The appeal was therefore dismissed.

The court did not make any specific orders in the case. However, the court's decision affirmed the appellant's sentence of two years and six months' imprisonment. The court's decision also clarified the law on manifest disparity in sentencing and the appropriate approach to sentencing youthful offenders.

Orders