JUDGES:	MAXWELL P, VINCENT JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2008
DATE OF JUDGMENT:	1 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 81

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CRIMINAL LAW – Sentence – Theft – Armed robbery – Conspiracy to commit armed robbery – Unregistered firearm – Attempt to pervert the course of justice – Threat to kill – Crown concession that trial judge in fixing non-parole period was in error – Circumstances of the appellant – Whether strict prison regime too burdensome – Appellant ‘protection prisoner’ – Prison conditions – Parity between co offenders – Sentence reimposed – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Victoria Legal Aid

MAXWELL P
VINCENT JA
HARGRAVE AJA:

The appellant pleaded guilty in the County Court, on 29 August 2006, to the following counts contained in Presentment No: C0404343.1 (‘the first presentment’):

Theft – counts 1 & 5
Armed robbery – count 2
Incitement to commit arson – count 3
Conspiracy to commit armed robbery – count 4
Prohibited person carrying an unregistered firearm – count 6
Attempt to pervert the course of public justice – counts 7 & 8.

He subsequently pleaded guilty, on 31 August 2006, to three counts contained in Presentment No C0605220.1 (‘the second presentment’). They comprised two counts of making a threat to kill[1] and one count of attempting to pervert the course of public justice.
[1]The appellant fell to be sentenced as a serious violent offender on count 2.

The appellant has an extensive criminal history involving 97 prior convictions and 17 court appearances between December 1986 and September 2004, and arising for the most part from his commission of offences of dishonesty, including burglary, theft, attempted theft, handling stolen goods and going equipped to steal. Significantly, for present purposes, he has been convicted on three separate occasions for armed robbery, one for his possession of a pistol and one relating to the possession of a regulated weapon.[2]
[2]The sentencing judge appears to have incorrectly calculated the number of appearances and offences but this error is highly unlikely to have assumed significance in the circumstances.

After hearing a plea in mitigation of penalty, the judge, on 17 October 2006, imposed the following sentences for the offences in the first presentment:

Count 1 – theft – 6 months’ imprisonment, 3 months to be served cumulatively on count 2
Count 2 – armed robbery – 5 years’ imprisonment
Count 3 – incitement to commit arson – 12 months’ imprisonment, 6 months to be served cumulatively on count 2
Count 4 – conspiracy to commit armed robbery – 2 years’ imprisonment, 12 months to be served cumulatively on count 2
Count 5 – theft – 6 months’ imprisonment, 3 months to be served cumulatively on count 2
Count 6…

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 Stevens

Details

AGLC: R v Stevens [2009] VSCA 81
Case: [2009] VSCA 81
Decision Date: 1 May 2009

CaseChat Overview and Summary

The appellant, Stevens, was convicted of conspiracy to commit armed robbery, possession of an unregistered firearm, and threatening to kill. The case was heard in the High Court of Australia, where Stevens appealed against his sentence. Stevens was sentenced to a lengthy period of imprisonment, with a non-parole period that was contested on appeal. The central issue in the appeal was whether the trial judge had erred in setting the non-parole period, and if the strict prison regime would be unduly burdensome for Stevens, who had been designated a "protection prisoner" due to his vulnerability in prison.

The court considered the Crown's concession that the trial judge had made an error in calculating the non-parole period, which necessitated a reassessment of the sentence. Additionally, the court examined whether the strict prison conditions imposed on Stevens, given his status as a protection prisoner, would be excessively burdensome. The court also considered the principle of parity between co-offenders, ensuring that the sentences of those involved in the conspiracy were commensurate with their respective roles. After thorough deliberation, the court determined that the original sentence was indeed flawed and reimposed a new sentence that took into account the unique circumstances of Stevens' case.

The High Court allowed the appeal and reimposed a sentence that reflected the errors in the original judgment. The court acknowledged the Crown's concession regarding the non-parole period and recalculated it, ensuring it was commensurate with the gravity of the crimes committed. Furthermore, the court addressed the specific prison conditions for Stevens, considering his status as a protection prisoner and the potential impact of a strict prison regime on him. The court's decision also maintained parity between co-offenders, ensuring that all parties involved in the conspiracy received sentences appropriate to their roles. The final orders of the court included the reimposition of the sentence with the corrected non-parole period and specific conditions regarding Stevens' imprisonment.

Orders