R v Evans - [2005] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 241 of 2004
v.
JOHN GABRIEL SOLOVASTRU
THE QUEEN	No. 138 of 2004
v.
JASON ANTHONY JOHN EVANS

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2005
DATE OF JUDGMENT:	12 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 254

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Criminal law – Sentence – Armed robbery – Manifest excess – Both appellant’s with substantial criminal history – Appellant Solovastru on parole at time of committing offences with which currently concerned – Principle of totality – Appeal by Solovastru dismissed – Failure by sentencing judge to take into account period of detention undertaken by Evans – Appeal by Evans allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant Solovastru	Mr C.B. Boyce	G. Tobin & Associates
For the Appellant Evans	Mr L.C. Carter	Grubissa White

CHARLES, J.A.:

I will invite Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

The appellants were jointly presented with a co-offender, Benjamin Goldsack, before the County Court at Melbourne, on 7 June 2004, on three counts of armed robbery committed at Narre Warren on 30 January 2004 (counts 1, 2 and 3) and one count of theft (count 4) which related to the use of a stolen motor vehicle in the carrying out of the robberies encompassed by the other counts. All pleaded guilty.

I should add at this point that Goldsack also pleaded guilty to a further charge of handling stolen goods (count 5).

A fourth co-offender, Mark Anthony Phillips, was separately presented, on 9 June 2004, but before the same judge. He also pleaded guilty to counts 1 to 4.

The appellant Solovastru admitted six findings of guilt arising from an appearance before the Children's Court in June 1993, and 105 convictions from seven Magistrates' Court appearances and one County Court appearance, between 8 November 1995 and 28 June 2002. His offences included robbery, assault in company, assault with a weapon, threat to kill and sundry offences of dishonesty. Of particular significance in the present context is a conviction for armed robbery in the County Court, on 28 June 2002, for which he was sentenced to imprisonment for a period of three years with a non-parole period of 18 months. He was at large on parole for that offence at the time of the commission of the offences with which we are here concerned.

The appellant Evans also had a very substantial criminal history. It consisted of ten findings of guilt from four Children's Court appearances, between 23 June 1993 and 6 March 1996, and 188 convictions from eight Children's Court appearances and twelve Magistrates' Court appearances, between 3 January 1995 and 12 August 2002. They related, inter alia, to a large number of offences of dishonesty, and included convictions for robbery (four charges in the Children's Court on 4 March 1997), unlawful assault, the possession of weapons, assault with a weapon,…

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 Evans

Details

AGLC: R v Solovastru; R v Evans [2005] VSCA 254
Case: [2005] VSCA 254
Decision Date: 12 October 2005

CaseChat Overview and Summary

The appellants, Solovastru and Evans, were convicted of armed robbery and subsequently sentenced by the trial judge. Both appellants have a history of criminal activity, with Solovastru being on parole at the time of the offence. They appealed against their sentences, with Solovastru contending that the sentence was manifestly excessive, while Evans argued that the sentencing judge failed to take into account the time he had already spent in detention. The appeals were heard by the Court of Appeal, which had to determine whether the sentences were appropriate given the nature of the offences and the respective circumstances of the appellants.

The court first considered the appeal by Solovastru, who argued that the sentence was manifestly excessive. The court examined the principle of totality, which requires that the sentence take into account any time spent in custody prior to sentencing. However, the court found that the trial judge had appropriately considered Solovastru's criminal history and the seriousness of the offence, and that the sentence was not manifestly excessive. Consequently, Solovastru's appeal was dismissed. The court then turned to Evans' appeal, focusing on whether the sentencing judge had failed to take into account the time he had already spent in detention. The court found that the trial judge had indeed failed to consider this factor, which was a material consideration in determining the sentence. As a result, Evans' appeal was allowed.

In summary, the Court of Appeal dismissed Solovastru's appeal against the sentence, finding it to be appropriate given the circumstances. However, Evans' appeal was allowed because the trial judge had failed to take into account the time he had already spent in detention. The court emphasised the importance of considering all relevant factors when determining a sentence, particularly the principle of totality. The final orders of the court were to dismiss Solovastru's appeal and allow Evans' appeal, with directions for the re-sentencing of Evans.

Orders