R v Sullivan - [2005] VSCA 286

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 23 of 2005

THE QUEEN

MICHAEL JOHN SULLIVAN

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JUDGES:	CHARLES, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2005
DATE OF JUDGMENT:	1 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 286

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Criminal law - Sentencing - Multiple offences of armed robbery, attempted armed robbery and theft - "Soft targets" - Appellant a heroin addict - Offences committed while on parole - Parole cancelled - Totality - Excellent prospects of rehabilitation - Total effective sentence of 10 years with non-parole period of 7 years reduced to total effective sentence of 8 years with non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D.C. Hallowes	Balmer & Associates

CHARLES, J.A.:

I will invite Eames, J.A. to give the first judgment.

EAMES, J.A.:

This is an appeal against sentence imposed by a judge of the County Court on 28 January 2005, leave to appeal having been granted by a judge of this Court. The appellant, who was presented with three other offenders, pleaded guilty to ten counts of armed robbery, one count of attempted armed robbery and four counts of theft of a motor vehicle. The maximum penalty for armed robbery is 25 years' imprisonment, for attempted armed robbery is 20 years' imprisonment and for theft 10 years' imprisonment.

The offending all took place over a 26-day period in March and April 2004. The appellant, alone, was arraigned on and pleaded guilty to every count on the presentment, whereas two of the other offenders pleaded guilty to only one count of armed robbery and the fourth pleaded guilty to one count of armed robbery and one count of theft.

The armed robbery offences and the attempted armed robbery offence all related to soft targets, such as service stations and 7-Eleven convenience stores where, on each occasion, the appellant (alone in all but one instance) when armed with a knife and wearing a full-face balaclava, threatened the store attendant and stole cash from the till. The offences were committed late at night and the staff concerned were intimidated and, in some, if not all, instances, terrified. The motor vehicles were stolen for the purpose of committing some of the robberies.

All four co-accused took part in the armed robbery which constituted count 7. That count formed the base upon which orders for cumulation were made by the judge with respect to the appellant's sentences. On that occasion the four offenders travelled in a stolen car to a Salvation Army store, where they purchased clothing for the purpose of the robbery and also purchased a 30 cm. Wiltshire kitchen knife. The appellant was already armed with a knife. They then drove to Elwood Food Works, where the appellant and Jamie Holt entered the store wearing black balaclavas, both of them carrying kitchen knives. The two others remained with the vehicle.

The…

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 Sullivan

Details

AGLC: R v Sullivan [2005] VSCA 286
Case: [2005] VSCA 286
Decision Date: 1 December 2005

CaseChat Overview and Summary

The case of R v Sullivan involved the appellant who was sentenced for multiple offences of armed robbery, attempted armed robbery, and theft. The appellant, a heroin addict, committed these offences while on parole, leading to the cancellation of their parole. The matter was brought before the court to review the sentence imposed on the appellant.

The primary legal issues addressed by the court were whether the sentence was appropriate given the totality of the circumstances, and whether the prospects of rehabilitation warranted a reduction in the sentence. The court also considered the appellant's vulnerability as a "soft target" and the impact of their addiction on their criminal conduct.

In reviewing the sentence, the court found that while the appellant's crimes were serious, the totality principle and the excellent prospects of rehabilitation warranted a reduction in the sentence. The court emphasised the need to balance the protection of society with the potential for rehabilitation. Consequently, the total effective sentence was reduced from 10 years with a non-parole period of 7 years, to a total effective sentence of 8 years with a non-parole period of 5 years.

The final orders of the court were that the total effective sentence of the appellant be reduced to 8 years, with a non-parole period of 5 years. This decision reflected the court's consideration of the totality of the circumstances, including the appellant's prospects for rehabilitation and the nature of the offences committed.

Orders