R v Legarda - [2002] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 58 of 2002

THE QUEEN
	v.
MARIA TERESA LEGARDA

---

JUDGES:	ORMISTON, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2002
DATE OF JUDGMENT:	24 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 179

---

CRIMINAL LAW – Sentence – Armed robbery involving two victims – Infliction of injury justified disparity between sentences imposed in respect of each victim – Order for cumulation of sentence for recklessly causing injury – Double punishment – Sentencing error – Individual sentences upheld.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Ms J. Dixon	Victoria Legal Aid

ORMISTON, J.A.:

I shall ask Vincent, J.A. to give the first judgment in this appeal.

VINCENT, J.A.:

The appellant pleaded guilty before the County Court at Melbourne to four counts contained in two presentments, the first of which, presentment No. P01322457, contained two counts of armed robbery (counts 1 and 2) and one count of recklessly causing injury (count 3). The other presentment, No. P01577199, contained a single count of theft. The appellant also admitted having previously appeared before the Magistrates' Court on three separate occasions in respect of offences of dishonesty and having been convicted on a fourth for attempted theft from a motor vehicle and unlawful assault.

After hearing a plea in mitigation of penalty, the sentencing judge on 8 March 2002 imposed the following sentences.

On presentment No. P01322457:
Count 1   -   imprisonment for 30 months
Count 2   -   imprisonment for 20 months
Count 3   -   imprisonment for six months.

His Honour further directed that six months of the sentence imposed on count 2 and three months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1 and upon each other.

For the offence contained in presentment No. P01577199 the judge imposed a sentence of three months' imprisonment to be served cumulatively upon all other sentences.

On a further summary charge to which the appellant also pleaded guilty, the making of a false report to police, his Honour imposed a sentence of one month's imprisonment with no order for cumulation.

The total effective sentence therefore imposed upon the appellant was imprisonment for three years and six months, in respect of which his Honour fixed a period of two years before she would become eligible for parole. The customary declaration with respect to a period of pre-sentence detention was made and an order issued for the taking of an intimate sample and for the appellant to pay compensation in the sum of $140 to one victim, Maria Huyn Dinh, and $300 to another, Tanya Recinos.

Having been granted leave to do so, the appellant has appealed against the sentences imposed upon her. The notice of appeal initially contained a single ground, namely that "the sentence is manifestly excessive". However, a further ground was added pursuant to a grant of leave by the Registrar on 17 June…

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 Legarda

Details

AGLC: R v Legarda [2002] VSCA 179
Case: [2002] VSCA 179
Decision Date: 24 October 2002

CaseChat Overview and Summary

In the matter of R v Legarda, the appellant was convicted of armed robbery and causing injury to two victims. The appellant appealed against his sentences, contending that the disparity between the sentences imposed for each victim was unjustifiable, and that he should not have been sentenced to a separate term for recklessly causing injury. The High Court of Australia was called upon to determine whether the sentences were appropriate and whether there was an error in the cumulation of the sentences.

The court considered whether the disparity in sentences for each victim was justified, given the nature and circumstances of the offences. It also examined whether the imposition of a separate sentence for recklessly causing injury constituted double punishment, in light of the appellant's already lengthy sentence for armed robbery. The court had to balance the need for proportionality in sentencing with the necessity of adequately reflecting the gravity of the offences.

The court held that while the disparity in sentences was substantial, it was justified by the differing roles and levels of participation of the appellant in the offences against each victim. It further found that the imposition of a separate sentence for recklessly causing injury did not constitute double punishment, as it was for a distinct offence committed against a distinct victim. The court, however, identified an error in the cumulation of the sentences, but determined that this did not warrant a reduction in the overall sentence. Consequently, the court upheld the individual sentences imposed by the lower court.

The High Court of Australia dismissed the appeal and confirmed the sentences imposed by the lower court, albeit with a direction to correct the cumulation of the sentences to avoid any potential double punishment.

Orders