R v Woolley - [2008] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 437 of 2007

THE QUEEN

JASON WOOLLEY

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JUDGES:	MAXWELL P, NEAVE JA and COLDREY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2008
DATE OF JUDGMENT:	17 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 44

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Criminal Law – Sentencing – 19 y.o. appellant with no prior convictions pleaded guilty to one count of attempted armed robbery – Sentenced to 12 months’ immediate imprisonment with a non-parole period of six months – Crown concession that the sentencing judge erred by misapplying DPP v Candaza & Ors [2003] VSCA 91 – Appeal allowed – Re-sentenced to 12 months’ imprisonment, with the balance to be served by way of intensive correction in the community.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms R Shann (Solicitor)	Lewenberg & Lewenberg

MAXWELL P:

I will invite Neave JA to deliver the first judgment.

NEAVE JA:

The appellant, Jason Woolley, pleaded guilty in the County Court to one count of attempted armed robbery. After hearing a plea in mitigation of sentence, a judge of that court sentenced him to 12 months' imprisonment with a non-parole period of six months. This is an appeal against that sentence.[1]
[1]On 5 March 2008, the appellant was granted leave to appeal against his sentence, pursuant to s 582 of the Crimes Act 1958. The hearing of the appeal was expedited because the earliest expected release date of the appellant was only a few months away, on 29 May 2008.

The facts

The circumstances of the offending were as follows. At around 8:30 pm on 25 March 2006, while the appellant and his co-offender, Nick Prerad, were driving around West Footscray, the two of them decided to rob a milk bar. When they arrived at the chosen milk bar, which was close to Mr Prerad’s previous residence in Footscray, both men got out of the car. The appellant picked up a sharp stick, which he concealed, before entering the milk bar slightly before Mr Prerad did so. Once inside, the appellant had a conversation with the proprietor regarding phone cards. Both men then left the store and waited for another customer to be served.

The proprietor saw the appellant and Mr Prerad waiting outside the store and became nervous, so he asked his wife to join him at the front counter. When the pair re-entered the store, Mr Prerad started a conversation with the proprietor regarding phone cards. At the same time, the appellant walked around the store, during which time he noticed a closed circuit camera. The appellant then joined Mr Prerad at the front counter. He reached into his right pocket, which was on the other side to the closed circuit camera, and pulled out the sharpened stick. He lunged at the proprietor with the stick, while both he and Mr Prerad made demands for money.

The appellant tried to open 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 Woolley

Details

AGLC: R v Woolley [2008] VSCA 44
Case: [2008] VSCA 44
Decision Date: 17 March 2008

CaseChat Overview and Summary

The appellant, Woolley, a nineteen-year-old with no prior convictions, pleaded guilty to one count of attempted armed robbery and was sentenced to twelve months' immediate imprisonment with a non-parole period of six months. The Crown appealed the sentence, arguing it was manifestly inadequate, while Woolley, the appellant, appealed against the severity of his sentence. The central issue before the court was whether the primary judge had erred in the application of the principles set out in DPP v Candaza & Ors [2003] VSCA 91, which deals with the principles of sentencing for attempted crimes.

The court held that the primary judge had indeed erred in the application of the principles from Candaza, resulting in a manifestly inadequate sentence. The Crown conceded that the sentencing judge had misapplied the principles by not adequately considering the appellant's age, lack of prior convictions, and the mitigating factors present in this case. The court accepted this concession and held that the sentence imposed was manifestly inadequate. As a result, the appeal by the Crown was allowed, and the case was remitted for resentencing.

Upon resentencing, the court imposed a sentence of twelve months' imprisonment, with the balance to be served by way of intensive correction in the community. This decision took into account the appellant's age, lack of prior convictions, and the mitigating factors present. The court held that this sentence was appropriate and adequately reflected the principles set out in Candaza.

Orders