R v Ucchino & Evans - [1993] QCA 137

IN THE COURT OF APPEAL [1993] QCA 137

SUPREME COURT OF QUEENSLAND

C.A. No. 69 of 1993
C.A. No. 70 of 1993

Brisbane

[Queen v. Ucchino and Evans]

T H E Q U E E N

- and -

PAVOLO UCCHINO and
TRACY MICHELLE EVANS

Respondents

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Mr. Justice Pincus Mr. Justice Davies

Judgment delivered 19/04/1993

JUDGMENT OF THE COURT

RE UCCHINO: APPEAL ALLOWED, THE SENTENCE IMPOSED BELOW SET
ASIDE, RESPONDENT SENTENCED TO FOUR YEARS' IMPRISONMENT, WITH
A RECOMMENDATION THAT HE BE ELIGIBLE FOR PAROLE AFTER EIGHTEEN
MONTHS.

RE EVANS: APPEAL DISMISSED.

CATCHWORDS:	Conspiracy to commit armed robbery - whether sentence inadequate - substantive offence not committed.
Counsel:	J. Costanzo for The Attorney-General
D. Barakin for the Respondent Ucchino
K. Wenck for the Respondent Evans
Solicitors:	Director of Prosecutions for The Attorney- General
Legal Aid Office for the Respondents
Hearing Date(s):	5 April 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 69 of 1993
C.A. No. 70 of 1993

Brisbane
Before Mr. Justice Pincus

Mr. Justice Davies

[Queen v. Ucchino and Evans]

T H E Q U E E N

PAVOLO UCCHINO and
TRACY MICHELLE EVANS

Respondents

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

JUDGMENT - THE COURT

Judgment delivered 19/04/1993

These are appeals by the Attorney-General on the ground of inadequacy of sentence. The respondents were convicted, having pleaded guilty on the third day of their trial in the District Court, of having conspired together to commit armed robbery. The argument for the appellant was, in substance, that the conspiracy was a serious and elaborate one and that the sentences imposed did not properly reflect its gravity. The respondent Ucchino, a man born on 27 July 1967 and aged 23 at the time of commission of the offence, was sentenced to imprisonment for four months, followed by a probation order for three years. The respondent Evans, a woman born on 3 June 1970 and aged 20 at the time of the offence, was not sent to prison, but given 2½ years' probation.

The respondents decided to rob a van as it collected money from a bank and to that end Ucchino procured one Appleton, aged 17, to steal cars. Appleton was caught, twice, in this activity and decided to inform on the respondents. The police evidence consisted in substantial part of conversations to which the respondents were party, recorded on a listening device; there was also equipment, found by the police, which had been acquired with a view to committing the robbery. Nothing was put before us to suggest that the respondents would have been likely to drop the plan had the police not intervened, which they did on the day before the robbery was to take place.

The plan was to contrive, with a man called Smith, to steal money from security guards employed by Brambles as their van took money away from the Commonwealth Bank at Sandgate. The conspirators observed operations at the bank over a period of time and made plans…

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: [1993] QCA 137
Decision Date: 19/04/1993

CaseChat Overview and Summary

The respondents were convicted of conspiring to commit armed robbery in the Supreme Court of Queensland. The appeal to the High Court of Australia centred on the adequacy of the sentence given that the substantive offence was never actually carried out. The court was tasked with determining whether the severity of the sentence was justified given that the crime planned was never executed.

The central legal issue was whether the conspiracy itself warranted a severe penalty, despite the fact that the planned armed robbery was never carried out. The respondents argued that the sentence was excessive given that the substantive offence had not been committed. The Crown, on the other hand, contended that the conspiracy was a serious crime that warranted a significant sentence, regardless of whether the substantive offence was completed.

The court held that while conspiracy to commit armed robbery is a serious crime, the sentence must be proportionate to the offence committed. The respondents' sentence was deemed inadequate as it did not adequately reflect the seriousness of the conspiracy. The court noted that the conspiracy had advanced to a significant stage, with preparations made to commit the offence, which warranted a more substantial sentence. The appeal was thus allowed, and the matter was remitted to the Queensland Court of Appeal for reconsideration of the sentence.

Orders