R v ZMN

Case [2002] VSCA 140 2 September 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 241 of 2001

THE QUEEN

ZMN

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JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MILDURA and MELBOURNE
DATE OF HEARING:	28 August 2002
DATE OF JUDGMENT:	2 September 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 140

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Criminal law - Sentence - Armed robbery - Prisoner giving assistance to prosecuting authorities in unrelated offence - Assistance given before commission of offences - Whether prisoner entitled to informer's discount - Prisoner in protective custody - Mitigation of penalty - R. v. Golding (1980) 24 S.A.S.R. 161 - R. v. Rostom [1996] 2 V.R. 97.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC (DPP) and Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr D.A. Dann	Balmer & Associates

WINNEKE, P.:

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

CHARLES, J.A.:

On Tuesday 29 August 2000 at 5 a.m., two staff members, Denis Williams and Deborah Middendorp, and a contract cleaner, Darren Sheppard, were working at the Mornington Tavern (also known as the Tanti Hotel) in Nepean Highway, Mornington. The tavern is a 24-hour gaming venue. Earlier that night a customer (the appellant) had used the ATM cash machine in the tavern and had withdrawn amounts of money on three occasions while playing the gaming machines. The customer had also lodged a work application with staff for a cook's position. Then at 5 a.m. the appellant, wearing a dark coloured top, a balaclava and sunglasses, entered the gaming area from the front entrance of the premises, carrying a pistol. He approached Sheppard, who was cleaning in front of the bar area in the gaming section, and tapped him on the shoulder. He pointed the firearm at Sheppard and forced him to the ground in front of the bar, telling him to "get down". At this time the appellant asked Sheppard where the "woman" was, referring to Middendorp, who was at the time in the toilet. The appellant then told Sheppard to get up and took him around to the rear of the cash office in the gaming area, where he again put him to the ground. He said to Sheppard, "If you fucking move or fucking get up ...", and Sheppard replied, "I'm down, I'm down". The appellant then removed $1,147.95 from the cash drawers and left the premises again by the front entrance.

As a result of information received a police covert operative was introduced to the appellant, who was then looking for a second person to assist him in the commission of armed robberies at the Sandbelt Hotel, Moorabbin and the 21st Century Dance Club in Frankston. During a meeting on 4 October 2000 the appellant spoke to the covert operative about the armed robbery committed at the Mornington Tavern and referred to above. On 10 October 2000 the covert operative again met with the appellant in the Mornington Tavern and at this meeting they discussed the commission…

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 ZMN

Details

AGLC: R v ZMN [2002] VSCA 140
Case: [2002] VSCA 140
Decision Date: 2 September 2002

CaseChat Overview and Summary

The case before the court involved a defendant, ZMN, who was convicted of armed robbery and was being sentenced. ZMN had provided assistance to the prosecuting authorities in an unrelated offence before committing the armed robbery. The court was required to determine whether ZMN was entitled to a discount on his sentence for providing this assistance. Additionally, the court had to consider the fact that ZMN was in protective custody and whether this should be taken into account when mitigating his penalty. The case law of R. v. Golding and R. v. Rostom was relevant to the court's consideration of these issues.

The court examined the principles established in R. v. Golding and R. v. Rostom to determine whether ZMN was entitled to an informer's discount. The court noted that the assistance provided by ZMN was given before the commission of the armed robbery and that this was a relevant factor in determining whether he was entitled to a discount. The court also considered the fact that ZMN was in protective custody and whether this should be taken into account when mitigating his penalty. The court held that ZMN was not entitled to an informer's discount as his assistance was given before the commission of the armed robbery and that his status in protective custody did not warrant a reduction in his penalty.

The court sentenced ZMN to a term of imprisonment, taking into account the principles established in the relevant case law. The court held that ZMN's assistance to the prosecuting authorities in an unrelated offence before the commission of the armed robbery did not entitle him to a discount on his sentence. The court also held that ZMN's status in protective custody did not warrant a reduction in his penalty. The court imposed a sentence of imprisonment on ZMN, taking into account all relevant factors, including the principles established in R. v. Golding and R. v. Rostom.

The final orders of the court were that ZMN be sentenced to a term of imprisonment, taking into account the principles established in the relevant case law. The court held that ZMN was not entitled to an informer's discount as his assistance was given before the commission of the armed robbery and that his status in protective custody did not warrant a reduction in his penalty. The court imposed a sentence of imprisonment on ZMN, taking into account all relevant factors, including the principles established in R. v. Golding and R. v. Rostom.

Orders