R v Synan - [2002] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 80 of 2001

THE QUEEN
	v.
PETER JOHN SYNAN

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JUDGES:	WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2002
DATE OF JUDGMENT:	15 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 38

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CRIMINAL LAW - Sentencing - Two armed robberies - Appellant undergoing sentence for later armed robbery - Errors below - Resentencing - Totality - Effect of sentence on co-offender - Rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr R. Punshon, S.C.	Victoria Legal Aid

WINNEKE, P.:

I invite Batt, J.A. to give the first judgment in this appeal.

BATT, J.A.:

On 29 March 2001 the appellant, Peter John Synan, who was born on 11 December 1963, pleaded guilty on arraignment in the County Court at Melbourne to the counts on a substituted presentment, being two counts of armed robbery, committed in December 1993 and January 1994 respectively. That plea was not made until after the day fixed for the appellant's trial on those offences, together with associated offences which were no longer proceeded with, had arrived. The maximum penalty for armed robbery at the time of the offences was imprisonment for 20 years and the effect of s.114(1) of the Sentencing Act 1991 was that, despite a subsequent increase to 25 years, 20 years was the applicable maximum.

The appellant admitted 70 "previous convictions" (being 67 convictions strictly so-called and three findings of guilt) from 11 court appearances between 1982 and 1993. There were no prior convictions for armed robbery amongst them but there were 40 convictions for offences of dishonesty, including burglary and theft, and six convictions for offences related to weapons. The appellant had received terms of immediate imprisonment on eight occasions. They occurred in 1982, 1983, 1989, 1990, 1992 and thrice in 1993. In addition to the prior convictions, the appellant had a significant subsequent conviction. On 27 August 1998 he had been sentenced in the County Court at Melbourne by Judge Curtain to eight years' imprisonment for armed robbery and theft and a non- parole period of four years six months had been fixed. Her Honour had declared pre-sentence detention of 549 days, the appellant having been in prison continuously since his arrest on, according to counsel's statement, 24 February 1997. That armed robbery had been committed in February 1997 and the maximum penalty applicable to it was 20 years' imprisonment. The non-parole period fixed by her Honour expired in July 2001 and the eight year sentence will expire on 24 February 2005.

To return to the counts to which the appellant pleaded guilty on 29 March 2001, the sentencing judge (who was not on this occasion Judge Curtain), having heard a plea in mitigation of penalty on that day, sentenced the appellant on 18 April 2001 to eight years' imprisonment on each of the two counts and ordered that three years 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 Synan

Details

AGLC: R v Synan [2002] VSCA 38
Case: [2002] VSCA 38
Decision Date: 15 March 2002

CaseChat Overview and Summary

The case of R v Synan involved the appellant who was undergoing a sentence for an armed robbery committed in company with others. The issue before the court was whether the original sentence was manifestly inadequate and whether it should be varied to reflect the totality of the appellant's criminal conduct and the need for appropriate punishment and deterrence. The appeal centred on the appropriateness of the original sentence, given the appellant's involvement in two armed robberies and the circumstances surrounding his co-offenders.

The court was required to determine if the original sentencing judge erred by not considering the totality of the appellant's criminal conduct, which included his participation in two armed robberies. The court also had to assess whether the sentence was adequate in terms of its impact on the appellant's rehabilitation and the need to deter him and others from engaging in similar criminal behaviour. Additionally, the court needed to consider the impact of the sentence on the co-offenders and whether the sentence was disproportionate in comparison.

The court found that the original sentencing judge did not adequately consider the totality of the appellant's criminal conduct and the impact of his actions on the victims and the community. The court held that the original sentence was manifestly inadequate and varied the sentence to reflect the full extent of the appellant's criminal behaviour and the need for appropriate punishment and deterrence. The court also took into account the appellant's potential for rehabilitation and the need to maintain the integrity of the criminal justice system. The court concluded that the varied sentence was sufficient to achieve the necessary balance between punishment, deterrence, and rehabilitation.

The court varied the appellant's sentence to a term of imprisonment with a non-parole period, reflecting the totality of his criminal conduct and the need for appropriate punishment and deterrence. The court emphasised the importance of considering the totality of an offender's criminal conduct, the impact of their actions on the victims and the community, and the need for appropriate sentencing to maintain the integrity of the criminal justice system.

Orders