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 | 1st 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 The appellant was granted bail on that date but this was revoked on 12 April 2004 during his trial on count 8, to which reference will be made later.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…
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- AGLC
- R v Robertson [2005] VSCA 190
- Case
- [2005] VSCA 190
- Decision Date
CaseChat Overview and Summary
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.
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