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R v Izzard

R v Izzard

Case [2003] VSCA 152 25 September 2003

Sentencing

Attempted robbery

Armed robbery

Recklessly causing injury

Psychiatric illness

Intellectual disability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 157 of 2002

THE QUEEN
	v.
LUKE GEOFFREY IZZARD

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JUDGES:	WINNEKE, P., CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2003
DATE OF JUDGMENT:	25 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 152

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Criminal Law – Sentencing – Attempted robbery, theft, attempted armed robbery, armed robbery and recklessly causing injury – Sentence of five years' imprisonment on count of armed robbery and also as total effective sentence - Parity – Co‑offender later sentenced on count of armed robbery to 12 months' imprisonment wholly suspended – Applicant suffering from serious psychiatric illness (schizophrenia) and intellectual disability – Sentencing practice - Desirability of “moderating and cumulating” in appropriate cases – Applicant re-sentenced to terms of imprisonment resulting, with cumulation, in total effective sentence of three years and nine months' imprisonment with non-parole period of one year and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons for judgment to be published by Callaway, J.A. For the reasons which his Honour gives, I agree that this application should be allowed; that the sentences imposed by the County Court judge be quashed; and that the applicant be re-sentenced in the manner proposed by Callaway, J.A.

CALLAWAY, J.A.:

The applicant, who is now aged 23, pleaded guilty in the County Court to one count of attempted robbery (count 1), one count of theft (count 2), one count of attempted armed robbery (count 3), one count of armed robbery (count 4) and one count of recklessly causing injury (count 5). He admitted 34 findings of guilt and 41 previous convictions from 10 court appearances between August 1996 and May 2001. They included convictions for intentionally causing serious injury, armed robbery, burglary, theft, assault with a weapon and public transport offences. After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 26^th June 2002 to 12 months' imprisonment on count 1, six months' imprisonment on count 2, three years' imprisonment on count 3, five years' imprisonment on count 4 and 18 months' imprisonment on count 5. By reason of s.16(1) of the Sentencing Act 1991, that made a total effective sentence of five years' imprisonment, in respect of which his Honour fixed a non-parole period of three-and-a-half years.

On 8^th November 2002 leave to appeal was refused by a single judge of appeal pursuant to s.582 of the Crimes Act 1958. The applicant has elected to have his application determined by the Court of Appeal. In the meantime the co-offender, to whom reference is made below, has been sentenced and new facts have emerged. The case before us is different from the case before his Honour in November last year.

There were originally three grounds of appeal:

“1.The sentence is manifestly excessive .

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 Izzard

Details

AGLC: R v Izzard [2003] VSCA 152
Case: [2003] VSCA 152
Decision Date: 25 September 2003

CaseChat Overview and Summary

The case of R v Izzard involved the applicant who was convicted of various offences, including attempted robbery, theft, attempted armed robbery, armed robbery, and recklessly causing injury. The applicant, suffering from a serious psychiatric illness and intellectual disability, was initially sentenced to five years' imprisonment on the count of armed robbery, which was also determined to be the total effective sentence. The applicant sought a re-sentencing due to the disparity in sentencing between the applicant and a co-offender, who was sentenced to 12 months' imprisonment wholly suspended on the same count of armed robbery.

The court was required to decide whether the applicant's sentence should be reduced to achieve parity with the co-offender's sentence and if the principle of "moderating and cumulating" should be applied in the applicant's case. The court also needed to consider the applicant's serious psychiatric illness and intellectual disability in determining the appropriate sentence.

In its reasoning, the court acknowledged the disparity in sentencing between the applicant and the co-offender and recognised the importance of achieving parity in sentencing. The court also considered the principle of "moderating and cumulating," which involves adjusting the sentences for individual offences to achieve a fair and balanced overall sentence. Taking into account the applicant's serious psychiatric illness and intellectual disability, the court determined that a re-sentencing was warranted. The applicant was re-sentenced to terms of imprisonment that, with cumulation, resulted in a total effective sentence of three years and nine months' imprisonment with a non-parole period of one year and nine months.

Orders