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Roe v The Queen

Roe v The Queen

Case [2021] VSCA 54 12 March 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0215

DAVID ROE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2021
DATE OF JUDGMENT:	12 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 54
JUDGMENT APPEALED FROM:	[2019] VCC 1560 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Parity – Kidnapping - Applicant and co-offender both convicted of kidnapping – Applicant’s sentence for kidnapping three months longer than sentence of co-offender – Whether difference in sentences reasonably open to judge –Applicant had lesser role in offending but significantly more extensive criminal record, evidencing propensity to violence – Co-offender had less extensive record and significant period of immigration detention – Difference in sentences reasonably open – Leave to appeal refused - Green v The Queen (2011) 244 CLR 462, Nipoe v The Queen [2020] VSCA 137 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Leanne Warren & Associates
For the Respondent	Ms E Ruddle SC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

McLEISH JA:

On 1 April 2019, the applicant was found guilty after a trial of one charge of kidnapping,[1] one charge of false imprisonment,[2] and two charges of common law assault. On the same day, Nalaka Wijeratne, a co-accused, was found guilty of one charge of kidnapping, one charge of false imprisonment and one charge of making a threat to kill. Wijeratne had previously pleaded guilty to one charge of obtaining a financial advantage by deception.
[1]Contrary to s 63A of the Crimes Act 1958.
[2]Contrary to common law.

A third person, Suncica Brajic-Bejdic, had previously pleaded guilty to charges of kidnapping, false imprisonment and knowingly dealing with proceeds of crime. Brajic-Bejdic was sentenced to 3 years’ imprisonment on the kidnapping charge, 2 years’ imprisonment on the false imprisonment charge (9 months cumulated) and 9 months on the proceeds of crime charge (3 months cumulated). She received a total effective sentence of 4 years’ imprisonment and a non-parole period of 2 years.

On 30 September 2019, the applicant was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1.

Kidnapping

[s 63A Crimes Act 1958]

25 years’ imprisonment

6 years’ imprisonment

Base

2.

False Imprisonment (Common law)

10 years’ imprisonment

3 years’ imprisonment

1 year

3.

Common law assault

5 years’ imprisonment

30 days’ imprisonment

14 days

6.

Common law assault

5 years’ imprisonment

30 days’ imprisonment

14 days

Total Effective Sentence:

7 years and 28 days’ imprisonment

Non-Parole Period:

5 years’ imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

461 days

6AAA Statement:

N/A

Other orders:

Forfeiture, disposal.

On the same day, Wijeratne was sentenced by the same judge as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

Indictment C1711284B

1.

Kidnapping [s 63A Crimes Act 1958]

25 years’ imprisonment

69 months’ imprisonment

Base

2.

False Imprisonment (Common law)

10 years’ imprisonment

3 years’ imprisonment

1…

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 Roe v The Queen

Details

AGLC: David Roe v The Queen [2021] VSCA 54
Case: [2021] VSCA 54
Decision Date: 12 March 2021

CaseChat Overview and Summary

In Roe v The Queen, the applicant appealed against his sentence, arguing it was excessively disproportionate compared to his co-offender's sentence for the same offence of kidnapping. The appeal was heard in the Victorian Court of Appeal. The applicant contended that his sentence, which was three months longer than his co-offender's, was not reasonably open to the trial judge given his lesser role in the offence and the extensive criminal history of his co-offender.

The central legal issue for the court to determine was whether the difference in the sentences imposed by the trial judge was reasonably open to them, considering the circumstances of the offence and the respective backgrounds of the offenders. The applicant argued that the disparity in their sentences was unjust, while the prosecution maintained that the trial judge was entitled to impose a longer sentence on the applicant due to his more extensive criminal history and propensity for violence.

The court examined the principle of parity in sentencing and reviewed the factors the trial judge considered in imposing the sentences. The court found that the trial judge had appropriately balanced the applicant’s criminal history and propensity for violence against his co-offender’s lesser criminal record and significant period of immigration detention. The court held that the difference in sentences was reasonably open to the trial judge and thus affirmed the applicant's sentence. The appeal was dismissed, with the court's reasoning aligning with the principles established in Green v The Queen and Nipoe v The Queen.

The final order of the court was to dismiss the applicant’s appeal against his sentence, upholding the trial judge's decision.

Orders