R v Elliott
[2005] VSCA 3
•3 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 2 of 2004
| THE QUEEN |
| v. |
| JASON EDWARD STUART ELLIOTT |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 February 2005 | |
DATE OF JUDGMENT: | 3 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 3 | |
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Criminal law - Sentence - Sundry offences including recklessly causing serious injury and making a threat to kill - Plea of guilty - Sentence and order for cumulation not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P. Holdenson, Q.C. | Robert Stary & Associates |
WINNEKE, P.:
I will invite Charles, J.A. to deliver the first judgment in this application.
CHARLES, J.A.:
The applicant now seeks to appeal, leave under s.582 of the Crimes Act 1958 having been refused by Buchanan, J.A. on 20 August of last year.
The criminal behaviour for which the applicant had been sentenced was described by Buchanan, J.A. in the following terms:
"In December 2001 the applicant stole a motor cycle. At the time of the theft, the applicant was in breach of conditions of bail and a warrant for his arrest had been issued. The applicant attached to the motor cycle a distinctive titanium exhaust pipe and a number plate that he had stolen from other persons. On 4 January 2002, the applicant rode the stolen motor cycle to Lygon Street and parked it outside a café. The owner of the exhaust pipe saw the motor cycle and recognised the exhaust pipe. He contacted the police. Three police constables went to the café and invited the applicant outside. The applicant was told that he was under arrest. One of the policemen took him by the arm. The applicant resisted and a struggle ensued. In the course of that struggle, the applicant took a revolver from one of the policemen and fired it. The bullet struck one of the policemen in the elbow. The applicant raised the gun and pointed it at the head of another policeman who was holding the barrel. The applicant struck the policeman with his fist, breaking his grip on the barrel. The applicant pointed the revolver at the remaining policeman as he left the laneway and ran along Lygon Street. The applicant pointed the gun at the driver of a car and demanded that he get out of the car. A female passenger and two children got out of the car but the driver remained. The applicant then turned to a nearby motor cycle rider and forced him to dismount. The applicant rode off on the motor cycle and fled to Queensland. He eventually returned to Victoria, where he was arrested."
He later pleaded guilty to a presentment containing ten counts: theft of a motor cycle (count 1), theft of a motor cycle exhaust pipe (count 2), theft of a number plate (count 3), recklessly causing serious injury (count 4), intentionally causing injury (count 5), making a threat to kill (count 6), using a firearm with intent to resist arrest (count 7), theft of a police revolver (count 8), attempting to rob while armed with a revolver (count 9), and robbery of a motor cycle while armed with a revolver (count 10). For these offences he was sentenced by Teague, J. on 8 August 2003 to be imprisoned on each of counts 1, 2 and 3 to a term of three months, on count 4 to seven years, on count 5 to one year, on count 6 to three years, on count 7 to two years, on count 8 to one year, and on both of counts 9 and 10 to two years' imprisonment. After a measure of cumulation, the total effective sentence was 11 years. At the time of his sentence, the applicant was serving a sentence of five years and nine months' imprisonment imposed by Judge Anderson of the County Court. Teague, J. ordered concurrency as to three years with the sentence imposed by Judge Anderson. The effect was that the applicant's overall head sentence became 13 years and 9 months, and Teague, J. set a new non-parole period of 11 years.
The applicant, before Buchanan, J.A., sought leave to appeal on the grounds that the sentence is manifestly excessive and that the judge failed to give any or any sufficient weight to the applicant's plea of guilty and prospects of rehabilitation and the principles of proportionality and totality. This morning, Mr Holdenson for the applicant pressed before this Court the same grounds of appeal which Buchanan, J.A. had concluded were not reasonably arguable.
Teague, J., a judge of very long experience in the criminal law, dealt expressly and in clear terms with the applicant's early plea of guilty and his prospects of rehabilitation, noting that in the late 1990s the applicant had shown a capacity to remain law-abiding. As to totality, proportionality and manifest excess, the applicant has a significant history of prior convictions and has spent a great deal of time in prison. As Teague, J. said, his prior convictions are appalling and have left a trail of victims. His priors, 139 in number, include three convictions for armed robbery, one for robbery with wounding, one for robbery in company and one for making a threat to kill and injure. The seriousness of the applicant's offending is obvious and exhibited complete contempt both for the law and the safety of the public. In my view, no error is to be found in the sentencing reasons of Teague, J., and I agree with the reasons given by Buchanan, J.A. for dismissing the application for leave. Notwithstanding Mr Holdenson's forceful submissions, the sentence imposed, including the order for cumulation, was, I think, plainly within range. The application should be dismissed.
WINNEKE, P.:
For the reasons given by Charles, J.A., I agree that the application should be dismissed.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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