R v Pio - [2007] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 343 of 2006

THE QUEEN
	v
WILLIAM PIO

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JUDGES:	CHERNOV, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2007
DATE OF JUDGMENT:	30 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 180

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Criminal law – Sentencing – Attempted armed robbery – Youth – Relevant prior convictions – Totality – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid

CHERNOV JA:

I call on Vincent JA to deliver the first judgment.

VINCENT JA:

The appellant pleaded guilty in the County Court at Melbourne, on 27 October 2006, to one count of attempted armed robbery. He was aged 22 years at the time of this offence and 23 years at the date of sentencing.

He admitted 57 prior convictions arising from ten court appearances between November 1998 and December 2004. Significantly for present purposes, they included three counts of robbery, twelve counts of theft, three counts of burglary, one count of obtaining property by deception, one count of handling stolen goods, and one count of assaulting a police officer. There were also various drug-related offences in the form of the use and possession of a drug of dependence, namely heroin or cannabis, and a number of offences connected with alcohol.

After hearing a plea in mitigation of penalty, the sentencing judge imposed a term of imprisonment of three years, in respect of which a non-parole period of 18 months was fixed. His Honour further ordered that that sentence be served concurrently with any other sentence that the appellant was then undergoing.[1]
[1]The appellant was, at the time of sentencing for this offence, serving a combined custody and treatment order with his custodial term set to expire on 28 December 2006.

Having been granted leave to do so, on 4 May 2007, the appellant seeks to overturn the sentence imposed upon him on the two grounds set out in his Statement of Grounds that:

1.The discretion of the learned sentencing judge miscarried in that he failed to give effect to the principle of totality.

2. That the sentence is manifestly excessive.

I turn to the circumstances relating to the commission of the appellant's offence.

The Background

On the evening of 6 June 2006, at approximately 11.21 pm, the appellant called a taxi service to attend at his address, with a plan to rob the driver of his money. However, he experienced some misgivings and instead, he decided to think about the matter. Approximately half an hour later, and after having consumed some tablets, which he later told police gave him the confidence to carry out his intention, he called for another taxi.

At approximately 11.47 pm, Ahmad Zoghaib, the taxi driver who responded to that call, attended at the appellant's address in Fitzroy.

When the taxi arrived, the appellant approached the car and got into the…

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 Pio

Details

AGLC: R v Pio [2007] VSCA 180
Case: [2007] VSCA 180
Decision Date: 30 August 2007

CaseChat Overview and Summary

In the case of R v Pio, the respondent, Pio, appealed against his sentence for an attempted armed robbery. The matter was heard in the Supreme Court of Victoria. The appellant's main contention was that the sentence imposed was manifestly excessive, particularly in light of his youth and the need for rehabilitation. The Crown argued that the sentence was appropriate given the seriousness of the offence and the appellant's criminal history.

The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive. The court also needed to consider the totality principle in sentencing, which requires that the overall punishment should not be disproportionate to the gravity of the offence and the offender's circumstances. Furthermore, the court had to assess the relevance of the appellant's prior convictions and his youth in determining an appropriate sentence.

The court found that the trial judge had considered all relevant factors, including the appellant's age, criminal history, and the seriousness of the offence. The court concluded that the sentence was not manifestly excessive and did not breach the totality principle. The court held that the trial judge had appropriately balanced the need for punishment and rehabilitation, taking into account the appellant's age and prior convictions. Consequently, the appeal was dismissed.

The Supreme Court of Victoria upheld the sentence imposed by the trial judge, finding that it was not manifestly excessive or in breach of the totality principle. The court recognised the importance of considering the appellant's youth and criminal history in sentencing but ultimately determined that the sentence was appropriate given the circumstances.

Orders