R v Mann - [2005] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 218 of 2004

THE QUEEN
	v.
MIKAEL MILENKOVIC MANN

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2005
DATE OF JUDGMENT:	26 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 141

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CRIMINAL LAW - Sentence - Armed robbery - Prisoner liable to serve term of imprisonment in New South Wales - Whether risk that this term would be served in accumulation with Victorian sentence - Whether principle of totality requires reduction in Victorian sentence - Whether sentencing judge entitled to find that robbery "carefully planned" - Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L.C. Carter	Patrick W. Dwyer

BUCHANAN, J.A.:

I will ask Byrne, A.J.A. to deliver the first judgment.

BYRNE, A.J.A.:

The appellant, Mikael Milenkovic Mann, appeals by leave against the sentence imposed upon him in the County Court on 19 August 2004. On that occasion, following his plea of guilty to a charge of armed robbery, he was sentenced to seven years' imprisonment with a non-parole period of five years. Consequential orders were made including a compensation order in the sum of $14,100 in favour of the victim, Paul Mizerni.

The circumstances of the crime were that the appellant, in response to an advertisement placed by Mr Mizerni in the Trading Post newspaper on 3 April 2003, agreed over a number of telephone calls and one meeting to purchase Mr Mizerni's Rolex watch for $7,500. The transaction was to be settled on the following day, 4 April 2003. On that day, upon a pretext, Mr Mizerni was persuaded by the appellant to accompany him to a street in Toorak where the appellant produced what appeared to be a silver pistol. The appellant took the Rolex watch without the agreed payment and also Mr Mizerni's valuable Omega watch.

The appellant was arrested in Sydney on 28 August 2003 and interviewed there. He made a predominantly "no comment" record of interview and was extradited to Melbourne. On 29 January 2004, following a contested committal hearing, he was committed for trial. On 9 August 2004 he appeared in the County Court for trial. Following adverse rulings on the admissibility of certain evidence against him he changed his plea to one of guilty.

Ground 1

"The learned sentencing judge erred in his consideration of totality by failing to have regard to the time owed by the appellant to the New South Wales Parole Board."

The appellant admitted 63 prior convictions, mainly for offences of dishonesty, dating back to 1978 when he was 17 years old. In all, he had 14 previous court appearances, on the last of which he was convicted on 20 February 2000 in Sydney of receiving stolen goods and sentenced to five years' imprisonment with a non-parole period of three years and four months. The offence with which we are here concerned was,…

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 Mann

Details

AGLC: R v Mann [2005] VSCA 141
Case: [2005] VSCA 141
Decision Date: 26 May 2005

CaseChat Overview and Summary

In the case of R v Mann, the respondent was convicted of armed robbery and sentenced to imprisonment in Victoria. The Crown sought a review of the sentence, arguing that the sentence should be reduced on the basis that the respondent would be required to serve a term of imprisonment in New South Wales for other offences, and that the principle of totality required a reduction in the Victorian sentence. The Crown also argued that the sentencing judge erred in finding that the robbery was "carefully planned" and that the sentence was manifestly excessive. The case was heard in the Court of Appeal.

The legal issues before the court were whether the principle of totality required a reduction in the Victorian sentence, whether the sentencing judge was entitled to find that the robbery was "carefully planned", and whether the sentence was manifestly excessive. The court considered the principle of totality, which requires that the total period of imprisonment imposed on a person for multiple offences should not be disproportionate to the gravity of the offending. The court also considered the factors that are relevant to determining whether an offence was "carefully planned" and whether the sentence imposed was manifestly excessive.

The court found that the principle of totality did not require a reduction in the Victorian sentence, as the respondent would not be required to serve the New South Wales sentence in accumulation with the Victorian sentence. The court also found that the sentencing judge was entitled to find that the robbery was "carefully planned", as there was evidence of the respondent's involvement in the planning of the offence. The court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offence of armed robbery.

The court dismissed the Crown's appeal and affirmed the sentence imposed by the sentencing judge. The court held that the principle of totality did not require a reduction in the Victorian sentence, that the sentencing judge was entitled to find that the robbery was "carefully planned", and that the sentence was not manifestly excessive.

Orders