Rooney v The Queen - [2017] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0258

BRANDON ROBERT ROONEY	Appellant
V
THE QUEEN	Respondent

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JUDGES:	OSBORN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2017
DATE OF JUDGMENT:	28 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 275
JUDGMENT APPEALED FROM:	[2016] VCC 1822 (Judge Misso)

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CRIMINAL LAW – Appeal – Sentence – Plea of guilty – Aggravated burglary – Sentence of 4 years and 1 month’s imprisonment – Whether manifestly excessive – Applicant was 21 years old at time of offending – Whether youth given sufficient weight by sentencing judge – Question of possible deportation – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Z B Richter	Emma Turnbull Lawyers
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

OSBORN JA

COGHLAN JA:

The applicant appeals against the sentence set out below imposed in the County Court on 29 November 2016.

Charge Offence Sentence Cumulation

1 Handling stolen goods[1] 3 months 1 month

2 Aggravated burglary[2] 3 years Base

3 Theft[3] 6 months 3 months

4 Theft 1 year 9 months

Total effective sentence 4 years and 1 month’s imprisonment

Non-parole period 2 years and 9 months’ imprisonment

Pre-sentence detention 120 days

Section 6AAA statement[4] 6 years with a non-parole period of 4 years

Other relevant orders

·     Three years of the sentence be served cumulatively with the sentence presently being served.[5]

·     Compensation order of $79,934.72 with respect to charges 3 and 4.

·     All licences and/or permits cancelled with respect to charge 4.

[1]Crimes Act 1958 s 88. The maximum penalty is 15 years’ imprisonment.
[2]Crimes Act 1958 s 77(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958 s 74. The maximum penalty is 10 years’ imprisonment.
[4]This declaration was not included in the record of orders.
[5]That is the sentence of 13 months’ imprisonment with a non-parole period of seven months, imposed on 18 August 2016.

The grounds of his appeal are:

1. The sentencing judge erred by failing to synthesise, as part of his discretion, the applicant’s anguish at the prospect of being deported from Australia in the future.
2. The individual sentences, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.

On 20 March 2017 Priest JA granted leave to appeal on each ground.

The offending

The offending the subject of this appeal is usefully summarised in the Registrar’s Neutral Summary as follows:

On 2 April 2016, between 6am and midnight, the appellant and a co-offender, Daniel Dahmes, gained entry to a house in Balwyn. Entry was gained by using a stolen garage remote control which had been obtained a couple of days earlier (charge 1 — handling stolen goods). At the time, three adult occupants (a male and female, who were husband and wife, and their daughter) were asleep in their bedrooms upstairs (charge 2 — aggravated burglary).
Once inside the house, the appellant and…

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 Rooney v The Queen

Details

AGLC: Rooney v The Queen [2017] VSCA 275
Case: [2017] VSCA 275
Decision Date: 28 September 2017

CaseChat Overview and Summary

The appellant, Rooney, appealed against the sentence imposed following his guilty plea to a charge of aggravated burglary. The matter was heard in the High Court of Australia. The central issue was whether the sentence, which amounted to four years and one month's imprisonment, was manifestly excessive, particularly considering Rooney's age at the time of offending, which was 21 years. Additionally, the court considered whether the sentencing judge appropriately weighed the factor of Rooney's youth.

In determining the appeal, the court examined the principle that a sentence should not be manifestly excessive. It recognised that while youth is a mitigating factor, it does not necessarily preclude a substantial sentence if the offence warrants it. The court assessed the totality of the circumstances, including the severity of the crime and the need for deterrence and denunciation. The appeal hinged on whether the sentencing judge appropriately balanced these considerations, particularly in light of Rooney's age.

The High Court found that the sentencing judge had given sufficient weight to Rooney's youth and the circumstances of the offence. The court held that the sentence was not manifestly excessive, as it reflected the gravity of the crime and the need to protect the community. The possibility of deportation, while a relevant consideration, did not alter the court's assessment of the sentence's appropriateness. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders