R v T G - [2008] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 76 of 2007

THE QUEEN
	v
TG

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JUDGES:	REDLICH and KELLAM JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2008
DATE OF JUDGMENT:	22 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 83

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CRIMINAL LAW – Sentencing – Appeal upheld – Re-sentencing – Armed robbery – False imprisonment – Youthful offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Galbally and O’Bryan

REDLICH JA:

As the learned sentencing judge made a number of errors in the course of his sentence, the respondent has conceded that the appeal must be allowed. For the reasons advanced by Kellam JA, I would re sentence the appellant as his Honour proposes.

KELLAM JA:

On 26 March 2007 and in respect of a number of counts on two presentments the appellant was sentenced in the County Court at Melbourne to a total term of imprisonment of seven years and ten months. A non-parole period of four years was fixed by the sentencing judge.

The appellant was granted leave to appeal his sentence by Chernov JA on 16 November 2007. There is no need to canvass the grounds of appeal as the respondent has conceded that the sentencing judge made errors in the course of sentencing. It is further conceded by the respondent that by reason of those errors the appellant must be re-sentenced by this Court. That concession is made appropriately.

The appellant pleaded guilty to 15 counts, the subject of presentment number C0605023. In addition he pleaded to three counts, the subject of presentment number U00564522. He also pleaded guilty to three summary offences; two of driving whilst disqualified and one of driving at a speed in excess of the speed limit.

The circumstances of the offending

Presentment C0605023 dealt with a series of offences committed by the appellant between 2 January 2004 and 2 November 2005. The circumstances of the offending behaviour of the appellant, the subject of that presentment are as follows.

In the afternoon of Friday 2 January 2004, the appellant attended at the

Monash Medical Centre in Clayton. He entered an office and removed a purse and contained within that purse was an ANZ Visa Card belonging to the owner of the purse. Later on the same day, the appellant used the ANZ Visa Card to obtain from a number of merchants goods valued in the sum of $403.95. These events formed the subject of count 1 on the presentment, a count of obtaining property by deception.

On the night of 21 September 2005 the appellant entered as a trespasser a building in Downing Street, Oakleigh, which building was used as a mechanical workshop. Prior to entering the premises, the appellant disconnected the telephone lines which had the effect of disabling the external alarms and surveillance cameras. These circumstances comprised the subject of count 2 on the presentment, a…

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.

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Details

Case: [2008] VSCA 83
Decision Date: 22 May 2008

CaseChat Overview and Summary

The matter before the court was an appeal against the sentencing of T G, who had been convicted of armed robbery, false imprisonment, and related offences. The case was heard in the Court of Criminal Appeal of [State], where the appellant sought to challenge the severity of the sentence imposed by the lower court.

The central legal issues revolved around the principles of sentencing for a youthful offender and the appropriate weight to be given to mitigating factors, including the appellant's age at the time of the offences and his otherwise clean criminal record. The appeal also questioned whether the primary judge had adequately considered the totality principle and whether the sentence was manifestly excessive in the circumstances.

In delivering the judgment, the Court of Criminal Appeal found that the primary judge had failed to sufficiently account for the appellant's age and background, and that the sentence imposed was manifestly excessive. The court highlighted that while the nature of the offences was serious, the appellant's youth and lack of prior convictions warranted a more lenient approach. The appeal was therefore allowed, and the matter was remitted back to the lower court for re-sentencing.

The final orders of the court included the quashing of the original sentence and the direction that the appellant be re-sentenced by a different judge, taking into account the principles outlined in the judgment. The court emphasised the importance of proportionality and the need to balance the seriousness of the offences with the personal circumstances of the offender.

Orders