R v Wenitong - [2001] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 212 of 2001

THE QUEEN
	v.
STEPHEN MATTHEW WENITONG

---

JUDGES:	WINNEKE, P., ORMISTON and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2001
DATE OF JUDGMENT:	18 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 162

---

Criminal law - Application for leave to appeal against sentence - Sentences of nine years imposed for armed robbery - Judge ordering five years of sentence to be served cumulatively with sentence of 18 years already being served for murder - Judge fixing 18 years as "new" non-parole period - murder conviction subsequently quashed by Court of Appeal and nolle prosequi entered - Application for leave to appeal against sentences imposed for armed robbery - Whether appropriate for Court to re-sentence applicant; or to remit matter to trial judge pursuant to s.568(5) of Crimes Act 1958 - Court deciding to re-sentence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D.McArdle, Q.C.	Ms K.Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr R.A.R.Lewis	Lethbridges

WINNEKE, P.:

The applicant, Stephen Matthew Wenitong, pleaded guilty on 18 April of last year to one count of theft of a car and one count of armed robbery. He had as his accomplices one Peter Synan and one Anthony Brennan. Each of the offences was committed on 24 February 1997, the stolen car the subject of the theft in count 1 being used in the armed robbery of a bank at Seville on the same day. A gun was used in the robbery; it was discharged by the applicant during the course of the crime with a view to frightening staff and customers. In all, some $36,000 was stolen. The offenders were quickly apprehended. Unbeknown to them, they were being kept under surveillance by members of the Special Operations Group. Their disguises, the .38 pistol and most of the cash were quickly recovered. The applicant made a clean breast of his participation in the crime.

The applicant, who is now 29 years of age, has a lengthy criminal history. He admitted 41 previous convictions, including two for armed robbery and nine for car thefts. He was taken into custody on the day of the robbery and has remained there ever since. This has been due to a variety of factors which have a bearing on this Court's function today. The plea in respect of these matters did not take place until April of last year. The proceedings had been adjourned upon the application of the applicant because he had been charged with a murder alleged to have occurred shortly before the armed robbery. In the fullness of time the applicant was tried and convicted of murder and sentenced on 4 November 1999 by Coldrey, J. to 18 years' imprisonment with a non-parole period of 14 years.

The robbery and theft counts were brought before a County Court judge, as I have said, in April 2000, when the applicant pleaded guilty. By that time the same judge had already dealt…

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 Wenitong

Details

AGLC: R v Wenitong [2001] VSCA 162
Case: [2001] VSCA 162
Decision Date: 18 September 2001

CaseChat Overview and Summary

In the case of R v Wenitong, the applicant was originally sentenced to nine years in prison for armed robbery. The sentencing judge ordered that five years of this sentence be served cumulatively with an 18-year sentence the applicant was already serving for murder. The judge also set the 18 years as the new non-parole period. Subsequently, the murder conviction was quashed by the Court of Appeal, and a nolle prosequi was entered in relation to the murder charge. The applicant then applied for leave to appeal against the sentences imposed for armed robbery. The legal issues before the court were whether it was appropriate for the Court to re-sentence the applicant, or to remit the matter to the trial judge under section 568(5) of the Crimes Act 1958. The court concluded that it was appropriate to re-sentence the applicant.

The court considered that, due to the quashing of the murder conviction, the sentence for armed robbery could not stand as originally imposed. The court held that it had the authority to re-sentence the applicant because the original sentence was no longer valid, and it was in the interests of justice to do so. The court also found that remitting the matter to the trial judge would not be appropriate, as the trial judge could not now make a decision on the armed robbery sentence in light of the changed circumstances. The court therefore decided to re-sentence the applicant, taking into account the current legal position and the need for a fair and just outcome.

The court re-sentenced the applicant to a term of imprisonment for armed robbery, with the non-parole period reflecting the current circumstances. The court noted that the applicant's original sentence for armed robbery had been influenced by the murder conviction, and that a new sentence was necessary to reflect the changed legal situation. The court also considered the principles of proportionality and deterrence in determining the appropriate sentence. The court's decision to re-sentence the applicant ensured that the sentence for armed robbery was fair and just, and took into account the applicant's current legal status.

Orders