R v Diss - [2002] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 61 of 2001

THE QUEEN
	v.
BENJAMIN PETER DISS

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2002
DATE OF JUDGMENT:	14 February 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 14

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CRIMINAL LAW - Sentencing - Armed robbery - Youthful offender - Principles applicable to youthful offender - Rehabilitation - Parity - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Kenna Croxford

WINNEKE, P.:

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

CHARLES, J.A.:

The applicant, Benjamin Peter Diss, who was born on 28 January 1981, and is now aged 21, pleaded guilty on 8 March 2001 to a presentment alleging one count of armed robbery (count 1) and two counts of possessing a drug of dependence (counts 2 and 3) in the County Court at Bendigo, A co-offender, Brett Ronald Bennett, now aged 26, also pleaded guilty to the same count of armed robbery.

The applicant admitted seven prior convictions from two court appearances before the Magistrates' Court at Bendigo in 1998 and 1999. Bennett admitted 16 prior convictions from eight court appearances before Magistrates' Courts between 1992 and 1999. During the plea a victim impact statement was filed. Counsel for the applicant relied on a report by a psychologist, Mr Bob Ives. Counsel for Bennett tendered a letter from Mr Marshall of the Bendigo Health Care Group and evidence was given on his behalf by his mother.

On 14 March the applicant was sentenced on count 1 to 3 years and 6 months' imprisonment, on count 2 to a fine of $500, and on count 3 to imprisonment for 3 months, made wholly concurrent with the sentence imposed on count 1. Bennett was sentenced to a 12-month intensive correction order. The maximum penalty for armed robbery was 25 years' imprisonment.

The applicant now seeks leave to appeal on grounds, first, that the sentence was manifestly excessive, secondly, that the sentence imposed upon the applicant when compared with the sentence imposed upon the co-offender reveals manifest disparity, and, thirdly, that the judge erred by failing to place sufficient weight upon the applicant's youth.

The circumstances of the offences were as follows. On Saturday, 7 October 2000 at about 9 p.m., the applicant, armed with a pair of pliers which he held in a manner designed to appear to be a firearm, entered a pharmacy in Bridge Street, Bendigo and approached the pharmacist, Matthew Webb. Mr Webb, as intended, took the applicant to be holding a "barrelled object" which he thought was a shotgun or rifle. The applicant demanded money, saying, "Only give me the notes". The day's takings then in the cash register amounted to approximately $1,100, which Mr Webb took out and handed, under threat, to the applicant, who also took 40 bottles of a prescription drug, Temazepam.…

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 Diss

Details

AGLC: R v Diss [2002] VSCA 14
Case: [2002] VSCA 14
Decision Date: 14 February 2002

CaseChat Overview and Summary

The case of R v Diss involved the defendant who was convicted of armed robbery. The matter was heard and determined by the court. The central issue before the court was the sentencing of the defendant, a youthful offender, and whether the sentence imposed was appropriate considering the principles applicable to such cases. The court had to assess whether the sentence was manifestly excessive, taking into account the need for rehabilitation and the principle of parity.

The legal issues that the court had to decide included whether the sentence imposed was excessive given the defendant's age and the potential for rehabilitation, and whether the sentence aligned with the principles governing the sentencing of youthful offenders. The court was required to consider the circumstances of the offence, the age of the defendant at the time of the offence, and the principles of sentencing that aim to achieve justice while considering the offender's capacity for rehabilitation.

The court thoroughly examined the principles applicable to sentencing youthful offenders and concluded that the sentence imposed was not manifestly excessive. It found that the sentence appropriately balanced the need for punishment with the potential for rehabilitation. The court noted that the sentence was in line with the principle of parity, ensuring that the punishment was commensurate with the offence committed. Additionally, the court considered the defendant's age and the possibility of rehabilitation, which supported the appropriateness of the sentence. The court determined that the sentence did not depart from the principles of justice and was proportionate to the offence.

The final orders of the court upheld the sentence imposed on the defendant, affirming that it was not manifestly excessive and was in accordance with the applicable legal principles.

Orders