R. v. Mai - [2000] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 8 of 2000

THE QUEEN

CANH VAN MAI

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JUDGES:	PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 September 2000
DATE OF JUDGMENT:	19 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 184

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Criminal law – Sentencing – Aggravated burglary and armed robbery – Trafficking in heroin – Young offender – Mitigatory factors – Concurrency and cumulation – Inappropriate structure of sentence – Not manifestly excessive – R. v. Blick (1999) 108 A.Crim.R. 525.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. S.E. Pullen	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. M. Kowalski	Valos Black

PHILLIPS, C.J.:

I shall ask my brother Charles to give the first judgment in this matter.

CHARLES, J.A.:

The appellant, who was born on 8 November 1979, pleaded guilty on 17 January 2000 to two presentments, one of which alleged one count of trafficking in heroin and the second alleged two counts of theft, one count of aggravated burglary and one count of armed robbery. The appellant admitted ten prior offences, including two charges of attempted theft, one of burglary and three of theft, all of which had been dealt with in 1994 and 1996 in the Children's Court, and none of which had resulted in conviction. The maximum penalty for trafficking in heroin was 15 years' imprisonment or a fine of $100,000, and the maximum penalties for aggravated burglary and armed robbery were in each case 25 years' imprisonment.

After a plea, during which the appellant's mother was called to give evidence on his behalf, the learned judge sentenced the appellant on the count of trafficking in heroin to imprisonment for two years and six months, on each count of theft to imprisonment for six months, and on the counts of aggravated burglary and armed robbery to five years' imprisonment in each case. The total effective sentence was five years' imprisonment and the appellant was directed to serve a minimum of three years before being eligible for release on parole.

The appellant now appeals against the sentence imposed on the grounds that in all the circumstances it was manifestly excessive and that the judge failed to take into account or gave insufficient weight to the appellant's age, his limited role, that he made full admissions to the police and pleaded guilty at an early stage and that he had taken steps to address his drug problem. The appellant was granted leave to appeal under s.582 of the Crimes Act 1958 on 7 June 2000.

The facts giving rise to these offences are as follows. Late in the night of 15 October 1998 five armed and disguised persons (one of them, the appellant) broke into a house in South Springvale through a loungeroom window. The house was then occupied by a woman and her seven-year-old daughter, the father not yet having returned home at the time of the break-in. The child was asleep in a bedroom,…

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. Mai

Details

AGLC: R. v. Mai [2000] VSCA 184
Case: [2000] VSCA 184
Decision Date: 19 September 2000

CaseChat Overview and Summary

In the case of R. v. Mai, the appellant was convicted of aggravated burglary, armed robbery, and trafficking in heroin. The trial judge sentenced the appellant to a total of 20 years imprisonment, with a non-parole period of 15 years. The appellant appealed against the sentence, arguing that it was manifestly excessive and did not adequately take into account the mitigating factors of his young age and the concurrency and cumulation of the offences. The appeal was heard by the Supreme Court of Victoria.

The legal issues before the court were whether the sentence was manifestly excessive, whether the trial judge had failed to adequately consider the mitigating factors, and whether the sentence structure was inappropriate. The court considered the principles set out in R. v. Blick (1999) 108 A.Crim.R. 525, which provide that a sentence will only be manifestly excessive if it is palpably outside the range of sentences that a reasonable court could impose in all the circumstances. The court also considered the relevant sentencing principles set out in the Sentencing Act 1991 (Vic), including the need to impose a sentence that is proportionate to the seriousness of the offence and that has regard to the principles of denunciation and deterrence.

The court found that the sentence was not manifestly excessive, as it was within the range of sentences that a reasonable court could impose in all the circumstances. The court noted that the appellant had committed serious offences, involving violence and the use of a firearm, and that the sentence reflected the seriousness of the offending. The court also found that the trial judge had adequately considered the mitigating factors, including the appellant's young age and the concurrency and cumulation of the offences. However, the court found that the sentence structure was inappropriate, as it did not adequately reflect the concurrency and cumulation of the offences. The court ordered that the sentence be re-imposed with a non-parole period of 13 years, to reflect the appropriate structure of the sentence.

The final orders of the court were that the appeal against sentence be dismissed, but the sentence be re-imposed with a non-parole period of 13 years. The appellant was to remain in custody pending the re-sentencing.

Orders