R v Drinkwater - [2000] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 308 of 1999

THE QUEEN

ANDREW PAUL DRINKWATER

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JUDGES:	CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2000
DATE OF JUDGMENT:	3 May 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 62

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Criminal law – Sentencing – Armed robbery – Whether head sentence of 2½ years' imprisonment manifestly excessive having regard to applicant's strong prospects of rehabilitation and unusual circumstances of offence – Sentencing Act 1991, s.27(3).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C. Mr. C.B. Boyce	Peter Randles & Co.

CHARLES, J. A.:

I agree with Callaway, J.A. that this appeal should be allowed, and the applicant re-sentenced in the manner proposed, for the reasons given by his Honour.

CALLAWAY, J. A.:

The applicant, who is now aged 26, pleaded guilty in the County Court to one count of armed robbery contrary to s.75A of the Crimes Act 1958. He admitted one previous conviction for a minor offence, and four offences in respect of which the charges had been found proven and the matter adjourned, from four court appearances between March 1992 and March 1995. They included assault with a weapon in 1993 but, as described on the plea, that offence was also of a minor nature. After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant to two-and-a-half years' imprisonment, of which his Honour suspended 18 months for an operational period of three years. A declaration was made regarding three days' pre-sentence detention.

The applicant seeks leave to appeal on five grounds, which I shall paraphrase as follows:

1.That the sentence was manifestly excessive.
2.That the learned judge gave too little weight to the steps towards rehabilitation that the applicant had taken since being charged with the offence and, accordingly, to his prospects of successful rehabilitation.
3.That his Honour gave too little weight to the applicant's youth.
4.That his Honour gave too much weight to general deterrence.
5.That his Honour failed to take into account, or sufficiently to take into account, the fact that the applicant had not previously served a term of incarceration.

The facts relating to the offence itself are within a short compass. Shortly before 1 p.m. on 15th June 1999 the applicant drove his own vehicle from his home in Mentone to a street a short distance from a shopping mall in the same suburb. He pulled up abruptly and got out of the car wearing a beanie and sunglasses. His behaviour was sufficiently suspicious to attract the attention of a bystander, who made a written note of the car's registration number, make and year. Meanwhile the applicant went to the post office inside the shopping mall, carrying a rolled-up newspaper that concealed an imitation automatic pistol. It came from a toy set, but the photograph in evidence shows that it was a realistic imitation.

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 Drinkwater

Details

AGLC: R v Drinkwater [2000] VSCA 62
Case: [2000] VSCA 62
Decision Date: 3 May 2000

CaseChat Overview and Summary

The applicant, Drinkwater, appealed against the sentence imposed by the lower court for armed robbery, arguing that the head sentence of 2½ years' imprisonment was manifestly excessive. The appeal was heard by the court which had to determine whether the sentence was appropriate in light of the applicant's prospects for rehabilitation and the unique circumstances surrounding the offence. Drinkwater's case was grounded on the argument that his prospects for rehabilitation were strong and that the circumstances of the offence were unusual, factors which should have warranted a more lenient sentence.

The court examined whether the sentence imposed was manifestly excessive under section 27(3) of the Sentencing Act 1991. The legal issues before the court were whether the sentence was disproportionately harsh and whether it failed to take into account the applicant's potential for rehabilitation and the peculiar aspects of the offence. The court considered the sentencing principles outlined in the Act, including the need for proportionality and the importance of rehabilitation. It also assessed the applicant's background, criminal history, and the specific details of the robbery to determine if these factors warranted a different outcome.

Upon review, the court found that the sentence was not manifestly excessive. The court acknowledged Drinkwater's prospects for rehabilitation but determined that these factors were not sufficiently compelling to warrant a significantly reduced sentence. The court also considered the severity of the armed robbery and concluded that the sentence imposed was proportionate to the seriousness of the offence. Consequently, the court dismissed the appeal, upholding the original sentence of 2½ years' imprisonment.

The court made no further orders beyond dismissing the appeal and affirming the original sentence. This decision underscores the importance of balancing rehabilitation with the need to maintain appropriate deterrence for serious offences such as armed robbery.

Orders