R v Marinus - [2000] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 123 of 2000

THE QUEEN

PETER ALAN MARINUS

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2000
DATE OF JUDGMENT:	16 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 205

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Criminal law – Sentencing – Prevalence – Executive action – Plea of guilty – Youth and prospects of reformation – Sentencing Act 1991, s.5(2AA)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. C.B. Boyce	G.R. Bryant & Associates

WINNEKE, P.:

I will invite Callaway, J.A. to give the first judgment in this appeal.

CALLAWAY, J.A.:

The appellant, who was born on 19th October 1982, pleaded guilty in the County Court at Ballarat to one count of aggravated burglary, one count of intentionally causing injury and one count of theft. The appellant's brother, David Marinus, born on 25th November 1979, also pleaded guilty to the same three offences. A third co-offender, Robert Morrison, born on 11th January 1985, was dealt with in the Ballarat Children's Court a fortnight later.

After hearing pleas for leniency on behalf of the appellant and his brother, the learned judge imposed the following sentences. The appellant was sentenced to 15 months' detention in a youth training centre on each of the counts of aggravated burglary and intentionally causing injury and to three months' detention in a youth training centre on the count of theft. It was directed that six months of the sentence imposed on the count of intentionally causing injury be served cumulatively upon the sentence imposed on the count of aggravated burglary, making a total effective sentence of 21 months' detention in a youth training centre. David Marinus was sentenced to nine months' imprisonment on each of the counts of aggravated burglary and intentionally causing injury and to three months' imprisonment on the count of theft. It was directed that six months of the sentence imposed on the count of intentionally causing injury be served cumulatively upon the sentence imposed on the count of aggravated burglary, making a total effective sentence of 15 months' imprisonment, in respect of which his Honour fixed a non-parole period of eight months. In the case of both offenders an order was made pursuant to s.464ZF(2) of the Crimes Act 1958. A forfeiture order was made in respect of the baseball bat that the appellant had used as a weapon.

Leave to appeal was granted on 22nd September 2000 in the expectation that the grounds of appeal would be amended. They were amended by order of the Registrar made on 11th October 2000, which substituted the following for the original grounds of appeal:

"1. The learned sentencing judge erred in considering that the common occurrence in the Ballarat area of offences similar to those committed by the appellant was relevant to the issue of specific deterrence.
2. The learned sentencing judge erred in failing to place any…

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 Marinus

Details

AGLC: R v Marinus [2000] VSCA 205
Case: [2000] VSCA 205
Decision Date: 16 October 2000

CaseChat Overview and Summary

The case of R v Marinus involved the appellant, who was convicted of a serious criminal offence, before the Supreme Court of Queensland. The appellant, a young individual, entered a plea of guilty and was subsequently sentenced. The appeal was centred on the sentence imposed by the trial judge, with the appellant contending that the sentence was excessive and failed to adequately consider his youth and prospects of reformation. The appellant argued that the trial judge did not sufficiently weigh these factors, which are mandated under section 5(2AA)(a) of the Sentencing Act 1991.

The court was required to determine whether the trial judge had erred in the sentence imposed by failing to give proper consideration to the appellant's youth and prospects of reformation. The appeal hinged on whether the trial judge's sentence was disproportionate to the offence and whether there was a failure to appropriately apply the statutory sentencing guidelines. The court also needed to assess whether the trial judge had adequately balanced the need for deterrence, denunciation, and rehabilitation in light of the appellant's age and potential for reform.

In delivering the judgment, the court found that the trial judge had indeed failed to give adequate weight to the appellant's youth and prospects of reformation. The court held that the sentence imposed was excessive and not commensurate with the statutory requirements under section 5(2AA)(a) of the Sentencing Act 1991. The appeal was allowed, and the sentence was quashed, with the matter remitted to the trial judge for re-sentencing. The court emphasised the importance of considering the specific characteristics of the offender, particularly their age and potential for rehabilitation, in the sentencing process.

Orders