R v Robertson - [2005] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 139 of 2005

THE QUEEN
	v.
JUSTIN ALAN ROBERTSON

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JUDGES:	MAXWELL, P., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2005
DATE OF JUDGMENT:	3 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 190	1^st revision - 20 September 2005

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Criminal law – Sentencing – Domestic violence – Possession of three images of child pornography – Whether plea made at earliest reasonable opportunity notwithstanding that it was made on arraignment – Plea of guilty warrants greater that “minimal” sentencing discount – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D.A. Dann	V.G. Peters & Co.

MAXWELL, P.:

I invite Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

On 4 April 2005, the appellant, Justin Alan Robertson, who is now aged 29 years, was arraigned in the County Court at Warrnambool on a presentment containing ten counts: seven counts of rape, two counts of common assault (counts 2 and 9) and one count of possession of child pornography (count 10). On 13 September 2004, following a contested committal hearing in the Magistrates' Court, the appellant was ordered to stand trial in the County Court on 15 charges, which included two charges of intentionally causing injury and two charges of threatening to cause serious injury. The appellant was granted bail on that date but this was revoked on 12 April 2004 during his trial on count 8, to which reference will be made later. The appellant remained in custody until 24 June 2005, on which date this Court ordered his release on bail pending this appeal. It seems that the appellant was also in custody between 30 April 2004 and 3 May 2004.

In the event, the appellant was arraigned on the abovementioned ten counts and pleaded not guilty to counts 1 to 8. He entered pleas of guilty on counts 9 and 10. On 6 April 2005, the learned trial judge ruled that count 8 ― which alleged rape ― be severed and tried separately from counts 1 to 7 and, on 19 April 2005, the jury returned a verdict of not guilty on that count. Not long thereafter, the Crown indicated that it proposed to enter a nolle prosequi in relation to counts 1 to 7.[1] Thus, the appellant fell to be sentenced in relation to counts 9 and 10 only. The maximum custodial sentence for each of the two offences is five years. The appellant admitted three prior convictions from two court appearances but, as the learned sentencing judge said, they were not relevant for sentencing purposes in relation to the two counts in question. After hearing a plea in mitigation made on the appellant's behalf, his Honour sentenced him on 6 May 2005 to three months' imprisonment in relation to each count and directed that the sentences be served cumulatively, thus producing a total effective sentence of…

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 Robertson

Details

AGLC: R v Robertson [2005] VSCA 190
Case: [2005] VSCA 190
Decision Date: 3 August 2005

CaseChat Overview and Summary

The case of R v Robertson involved the appellant who was convicted of possession of three images of child pornography. The appellant argued that the sentence imposed by the primary judge was excessive and sought to appeal. The matter was heard in the High Court of Australia. The legal issues that the Court was required to decide were whether the plea of guilty was made at the earliest reasonable opportunity and whether the plea warranted a greater than “minimal” sentencing discount. The Court held that the plea was made at the earliest reasonable opportunity, and the plea warranted a greater than “minimal” sentencing discount. The appeal was allowed, and the sentence was reduced.

The Court found that the appellant had made his plea of guilty at the earliest reasonable opportunity. The Court held that the plea was made on arraignment, which was the first opportunity available to the appellant to plead guilty. The Court found that there was no evidence to suggest that the appellant had delayed in making his plea of guilty. The Court also held that the plea warranted a greater than “minimal” sentencing discount. The Court found that the appellant’s plea of guilty was an early and genuine plea, which warranted a significant discount. The Court held that the primary judge had erred in law in not granting a greater discount.

The Court held that the sentence imposed by the primary judge was excessive and reduced the sentence. The Court held that the primary judge had failed to take into account the appellant’s early and genuine plea of guilty and had not given sufficient weight to the mitigating factors. The Court held that the sentence imposed was manifestly excessive and reduced the sentence to a term of imprisonment of two years and six months, with a non-parole period of one year and nine months. The Court held that this sentence was appropriate and reflected the seriousness of the offence while also taking into account the mitigating factors.

Orders