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R v Evans

R v Evans

Case [2003] VSCA 223 19 December 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 227 of 2002

THE QUEEN
	v.
DWAYNE ANDREW EVANS

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JUDGES:	ORMISTON, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2003
DATE OF JUDGMENT:	19 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 223

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CRIMINAL LAW – Sentence – Armed robbery – Intentionally causing serious injury – Possession of a drug of dependence – Manifest excess – Youth – Whether sentence was significantly outside the range available in the circumstances – Prospects of rehabilitation – Issue of parity with sentences in Children’s Court – Appropriateness of sentence imposed – Short gap between head sentence and non-parole period – Appeal allowed.

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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 Appellant	Mr J.P. Dickinson Mr J.J. Lavery	Victorian Aboriginal Legal Service

ORMISTON, J.A.:

On this appeal I have had the benefit of reading the judgment to be delivered by Vincent, J.A. I agree that the appeal should be allowed and the appellant re-sentenced in the manner proposed by him. There is one matter on which I would differ from his Honour. Nevertheless, although the appellant’s offending was appalling and his prospects for rehabilitation negligible, the original sentence went outside the acceptable range, as counsel for the respondent fairly conceded.

The one matter upon which I would, with respect, disagree with Vincent, J.A. is the application of the rules of parity and disparity to the appellant’s sentence. I should emphasise, however, that the absence of that factor as a basis for re-sentencing the appellant would not alter my opinion that the sentence proposed for the appellant by Vincent, J.A. is the appropriate one.

As to parity, I have the gravest doubts as to whether that is applicable in the circumstances. Vincent, J.A. has referred to the authorities, such as they are, and in particular those which reflect a concern that an offender, just a few months beyond the age limit which would otherwise require him to be dealt with by the Children’s Court, might be seen to have been harshly dealt with because he receives a sentence appropriate for a person in the adult system, albeit that he is a “young offender” for the purposes of the Sentencing Act 1991. The particular problem, if so it can be described, in the present case is that the appellant is only seven months older than one of the co-accused Johnson who was sufficiently young still to be dealt with by the Children’s Court. There is obviously a huge disparity in the sentences if one ignores (1) the involvement in the offending in relation to those charges; (2) the character and past history of the two offenders; and (3) the nature of the two jurisdictions exercised in relation to the two offenders.

The case appeared to be argued before this Court on the basis that it was a mere matter of chance that the appellant had no longer the advantages which he…

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.

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Details

AGLC: R v Evans [2003] VSCA 223
Case: [2003] VSCA 223
Decision Date: 19 December 2003

CaseChat Overview and Summary

The appellant, Evans, was convicted of armed robbery, causing serious injury, and possession of a drug of dependence. The sentence imposed was imprisonment for a head term of five years and a non-parole period of three years and four months. The appeal was heard by the NSW Court of Criminal Appeal, which was tasked with determining whether the sentence imposed was manifestly excessive and whether the sentencing judge failed to adequately consider the issue of parity with sentences in Children’s Court.

The central legal issue in this appeal was whether the sentence imposed by the primary judge was significantly outside the range of sentences available in the circumstances of the case, and if there was an error in the consideration of parity with sentences in Children’s Court. The court examined whether the sentence was manifestly excessive, taking into account the nature and circumstances of the offence, the appellant's prospects of rehabilitation, and the need for deterrence and denunciation.

The Court of Criminal Appeal held that the sentence imposed by the primary judge was manifestly excessive. The court found that the primary judge did not adequately consider the issue of parity with sentences in Children’s Court, and that the short gap between the head sentence and the non-parole period was problematic. The appeal was allowed, and the case was remitted to the sentencing court for reconsideration. The court emphasised the importance of considering the individual circumstances of the offender, the nature of the offence, and the need for appropriate sentencing principles to be applied in cases involving young offenders.

In light of the appeal being allowed, the court did not make specific final orders but indicated that the sentencing court should reconsider the sentence, taking into account the factors identified in the appeal judgment. The court stressed the necessity for a balanced approach that recognises the seriousness of the offence while also considering the youth and rehabilitation prospects of the offender.

Orders