R v Rule - [2008] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 181 of 2007

THE QUEEN
	v
TROY JOHN RULE

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JUDGES:	WARREN CJ, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2008
DATE OF JUDGMENT:	25 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 154

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CRIMINAL LAW – Sentence – Two armed robberies committed within two days of each other – Crown concession as a result of negotiation that both sentences should be wholly concurrent – Concession in accordance with proper sentencing principles – Misapprehension by sentencing judge as to nature of concession – No indication given that concession not to be acted upon – Appeal allowed by reason of denial of procedural fairness

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary and Associates

WARREN CJ
NEAVE JA
WEINBERG JA:

The appellant, Troy John Rule, now aged 33, pleaded guilty in the County Court to a presentment containing two counts of armed robbery. Count one charged that on 28 May 2005, at Wendouree, he robbed Kym Ruth Becker of certain money and at the time knew that his co-offender, Bianca Jayne Fraser, had with her an offensive weapon, namely a syringe. Count two charged that on 30 May 2005, at Mount Clear, he, together with Bevan Gwynn Jenkins, robbed Tania Artz of a quantity of morphine and at the time knew that their co-offender, Maryanne Carol Spiteri, had with her an offensive weapon, namely a knife. The maximum penalty for armed robbery is 25 years’ imprisonment.

The appellant was sentenced to a term of four years and six months’ imprisonment on count one, and five years’ imprisonment on count two. The sentencing judge ordered that twelve months of the sentence imposed on count one be cumulative upon the sentence imposed on count two. That made a total effective sentence of six years’ imprisonment. Her Honour ordered that he serve a minimum term of three years and six months before being eligible for parole. He now appeals against that sentence.

The circumstances surrounding these two offences were as follows. In relation to count one, the appellant, together with one Travis Rackley and Bianca Fraser, drove to the Stocklands Shopping Centre in Wendouree. The appellant was the driver of the vehicle, which was owned by Rackley.

Their aim was to purchase heroin. Fraser attempted to obtain cash from an automatic teller machine but was unsuccessful. On her return to the car, the appellant drove the three of them to street in the vicinity of an Ampol service station. He drew blood from his arm into a syringe which he then gave to Fraser. According to the depositions, the appellant and Rackley instructed Fraser how to carry out the robbery. In accordance with those instructions, she entered the service station, produced the syringe, and threatened the female attendant with it. Fraser then went behind the counter, took approximately $300 from the till,…

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 Rule

Details

AGLC: R v Rule [2008] VSCA 154
Case: [2008] VSCA 154
Decision Date: 25 August 2008

CaseChat Overview and Summary

The case of R v Rule involved a defendant convicted of two armed robberies committed within a short period. The court was tasked with determining an appropriate sentence for the defendant. The Crown had negotiated a concession with the defence that the sentences for both robberies should run concurrently. However, the sentencing judge did not understand the nature of this concession, leading to a sentence that was not in line with the agreed terms. The defendant subsequently appealed, arguing that the sentencing process had been unfair.

The primary legal issue before the court was whether the sentencing judge's misunderstanding of the Crown's concession constituted a procedural error that warranted an appeal. The court needed to determine whether the failure to correctly apply the agreed terms of the concession resulted in a denial of procedural fairness. Furthermore, the court had to consider whether the Crown's concession was valid and should be upheld, despite the sentencing judge's error.

The court found that the Crown's concession for wholly concurrent sentences was in accordance with proper sentencing principles and should have been followed. The sentencing judge's misunderstanding of this concession, without any indication that it should not be acted upon, led to a denial of procedural fairness. The court concluded that the defendant's appeal should be allowed on the grounds that the sentencing process was unfair due to the judge's misinterpretation of the Crown's concession. As a result, the case was remitted to the sentencing court for reconsideration in light of the proper understanding of the concession.

Orders