R v Greenway - [2007] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 328 of 2006

THE QUEEN
	v
DARREN JOHN GREENWAY

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JUDGES:	VINCENT and KELLAM JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2007
DATE OF JUDGMENT:	20 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 204

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CRIMINAL LAW – Sentence – Armed robbery – Assault – Manifest excess – Alleged factual error – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr S Gillespie-Jones	McNamaras Lawyers

VINCENT JA:

I will invite Whelan AJA to deliver the first judgment.

WHELAN AJA:

On 16 October 2006, the applicant was sentenced to terms of imprisonment by a judge in the County Court on charges of armed robbery and assault. The applicant sought leave to appeal against the sentences imposed and that application was heard by Chernov JA on 30 March 2007. Chernov JA refused the application. The applicant now seeks leave to appeal from this Court pursuant to s 582 of the Crimes Act.

The circumstances of the offences and the applicant's personal circumstances were set out by the sentencing judge and by Chernov JA. I do not propose to repeat them in any detail again. The applicant committed a robbery on a licensed supermarket on 20 September 2005, armed with two knives. He threatened the staff member behind the counter with one knife, which was a large kitchen carving knife. When the manager intervened and took a knife out of the applicant's pocket, the applicant threatened him as well, raising his arm and holding the large knife in his hand as though he was going to swing the knife at him.

The applicant is now 43 years of age. He has prior convictions for drug and driving offences. He also has prior convictions, which are now quite old, for handling stolen goods, theft and obtaining property by deception. More recently, on 27 October 2004, he was convicted and placed on a 12-month community based order for a number of offences including two charges of obtaining financial advantage by deception, and charges of theft, going equipped to steal, fraudulently using a number plate and fraudulently using a registration label. The offences for which he was sentenced on 16 October 2006 occurred during the period of that community based order.

The sentencing judge heard a plea on 17 August 2006 and on 16 October 2006. Amongst other documents tendered was a report on the applicant's drug and alcohol history by his treating doctor, Dr Tony Michaelson, and a psychological report from Mr Bernard Healey. The sentencing judge also considered a pre-sentence psychiatric assessment and report which he had ordered.

The sentencing judge sentenced the applicant to four years' imprisonment on the armed robbery count and one year's imprisonment on the assault. Pursuant to s 16(1) of the Sentencing Act 1991, as no order for cumulation was made, those sentences are concurrent. The sentencing judge fixed…

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 Greenway

Details

AGLC: R v Greenway [2007] VSCA 204
Case: [2007] VSCA 204
Decision Date: 20 September 2007

CaseChat Overview and Summary

In the case of R v Greenway, the respondent was convicted of armed robbery and assault, following a confrontation with a victim during which he used a knife. The respondent brought an appeal against sentence, contending that the primary judge had erred in sentencing by failing to adequately consider the mitigating circumstances of the case. The appeal was heard by the Court of Appeal, which was required to determine whether the sentence imposed was manifestly excessive. The appeal hinged on the question of whether the sentencing judge had erred in his assessment of the facts and, as a result, whether the sentence imposed was manifestly excessive.

The Court of Appeal considered the contention that the sentence was manifestly excessive and examined whether the sentencing judge had erred in any material way. The court noted that it was not its role to reweigh the mitigating and aggravating factors, but rather to ensure that the sentence imposed was within the range of reasonable sentences that could be imposed for the crimes committed. The court found that the sentencing judge had not erred in his assessment of the facts and that the sentence imposed was within the range of reasonable sentences for the crimes committed. The appeal was dismissed, and the sentence upheld.

The Court of Appeal held that the sentence imposed by the primary judge was not manifestly excessive, and that there was no material error in the assessment of the mitigating and aggravating factors. The appeal was dismissed, and the sentence upheld. The court found that the sentence imposed was within the range of reasonable sentences for the crimes committed, and that the sentencing judge had not erred in any material way. The appeal was therefore dismissed, and the sentence upheld.

Orders