R v Racovalis - [2002] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 13 of 2002

THE QUEEN
	v.
MICHAEL RACOVALIS

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JUDGES:	PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2002
DATE OF JUDGMENT:	9 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 67

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Criminal Law - Sentence - Offences of armed robbery and theft - Sentence of two years' detention in Youth Training Centre - Recommendation that offender be considered for parole after serving six months of the sentence - Whether sentence premised on recommendation being given effect - Whether sentences engender a sense of justifiable grievance - Due proportionality between sentences of co-offenders - General deterrence and prospects of rehabilitation - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.G. Wraith	Elizabeth Nickolls

PHILLIPS, C.J.:

I shall ask my brother Chernov to deliver the first judgment.

CHERNOV, J.A.:

The applicant, who is now aged 19, and his co-offender, Nicholas Nicholas ("Nicholas"), who is now aged 22, each pleaded guilty in the County Court at Melbourne on 19 December 2001 to one count of armed robbery contrary to s.75A of the Crimes Act 1958. The applicant also pleaded guilty to one count of theft of a motor car in contravention of s.74 of that Act. The offences were committed on 4 July 2001. The maximum penalty applicable to armed robbery is 25 years' imprisonment and for theft, 10 years' imprisonment. Nicholas admitted 25 previous convictions. The applicant admitted two court appearances. One was before the Children's Court on 1 October 1999 in relation to theft, and for which he was placed on a good behaviour bond for six months. The other was at a Magistrates' Court on 9 May 2001 in respect of theft and handling stolen goods. In relation to the latter offences, the applicant was placed on a community-based order for three months with conditions that he undergo assessment and treatment for alcohol and drug addiction. That order was in force at the time of the commission of the offences.

After hearing a plea in mitigation made on behalf of each co-offender, the learned judge sentenced the applicant in respect of the armed robbery charge to two years' detention in a youth training centre ("YTC"). His Honour went on to say in respect of that sentence: " ... I recommend, because it is a matter for the Youth Parole Board ... that you be considered eligible for parole after serving six months of that sentence". The judge also sentenced the applicant to one month's detention at a YTC in respect of the theft charge to be served concurrently with the earlier sentence. His Honour further directed that all drivers' licences and permits held by the applicant under the Road Safety Act 1986 be cancelled and that he be disqualified from obtaining any such licence or permit for a period of six months from 21 December 2001.

Nicholas was sentenced…

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 Racovalis

Details

AGLC: R v Racovalis [2002] VSCA 67
Case: [2002] VSCA 67
Decision Date: 9 May 2002

CaseChat Overview and Summary

In the matter of R v Racovalis, the appellant was convicted of armed robbery and theft and was sentenced to two years' detention in a Youth Training Centre. The sentence was accompanied by a recommendation that the offender be considered for parole after serving six months of the sentence. The court was asked to determine whether the sentence was premised on the expectation that the parole recommendation would be given effect, and whether the sentences engendered a sense of justifiable grievance. The court also had to consider the proportionality between the sentences of co-offenders, as well as the principles of general deterrence and the prospects of rehabilitation. Ultimately, the court held that the sentence was not manifestly excessive.

The primary legal issues before the court were whether the sentence was premised on the parole recommendation being given effect and whether the sentences engendered a sense of justifiable grievance. Additionally, the court had to consider the proportionality between the sentences of co-offenders, as well as the principles of general deterrence and the prospects of rehabilitation. The court also considered whether the sentences were manifestly excessive.

The court found that the sentence was not premised on the parole recommendation being given effect, as it was the minimum sentence required to meet the objectives of general deterrence and rehabilitation. The court also determined that the sentences did not engender a sense of justifiable grievance, as they were proportionate to the crimes committed and took into account the offender's age and potential for rehabilitation. The court further held that the sentences of co-offenders were proportionate, and that the principles of general deterrence and rehabilitation were adequately addressed. Finally, the court concluded that the sentences were not manifestly excessive, given the nature and circumstances of the offences.

No specific final orders are mentioned in the text.

Orders