CRIMINAL LAW – Appeal – Sentence – Carjacking (charge 1), conduct endangering life (charge 2) and fail to stop vehicle on police request (charge 3) – Appellant accosted victim in victim’s driveway at night and stole vehicle – Appellant drove stolen vehicle erratically and at excessive speeds while pursued by police – Total effective sentence of 4 years’ imprisonment with non-parole period of 3 years – Whether sentence on charge 1 (3 years) and non-parole period manifestly excessive – Maximum penalty for carjacking 15 years – Medium range car-jacking offence – Notwithstanding mitigating factors, sentence of 4 years open to sentencing judge – Limited role of comparable cases in sentencing – Non-parole period of 75 per cent of the head sentence manifestly excessive – Shorter non-parole period required in the interests of the appellant’s rehabilitation and reintegration into the community – Sentence affirmed, non-parole period fixed at 2 years, 6 months.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr M Stanton and Ms B East
Stary Norton Halphen
For the Respondent
Ms M Mahady
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA:
I agree with the reasons of Emerton JA and with the orders her Honour proposes.
EMERTON JA:
On 27 October 2020, the appellant pleaded guilty to one charge of carjacking, one charge of conduct endangering life and one charge of fail to stop vehicle on police request. The appellant was sentenced on 26 November 2020 as follows:
Charge on Indictment L11130820
Offence
Maximum Penalty
Sentence
Cumulation
1
Carjacking (contrary to s 79 of the Crimes Act 1958)
15 years
3 years
Base
2
Conduct endangering life (contrary to s 22 of the Crimes Act 1958)
10 years
2 years
1 year
Summary charge 6
Fail to stop vehicle on police request (contrary to s 64A(1) of the Road Safety Act 1986)
12 months[1]
2 months
—
Total effective sentence
4 years’ imprisonment
Non-parole period
3 years
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
199 days
6AAA Statement
6 years’ imprisonment, with a non-parole period of 4 years
Other relevant orders
Nil
[1]This penalty applies pursuant to s 64A(1) of the Road Safety Act 1986 as it was a subsequent offence, as opposed to a maximum of 6 months’ imprisonment with respect to a first offence.
The appellant has been granted leave to appeal against both the sentence on charge 1 and the non-parole period on the ground that each of them is manifestly excessive.
Background
At approximately 10:55 pm on 11 May 2020, Mr Malinga De Silva drove home from the car wash in his 1998 Nissan Skyline and turned into his driveway. He turned…
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.
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Details
AGLC
Russo v The Queen [2021] VSCA 244
Case
[2021] VSCA 244
Decision Date
CaseChat Overview and Summary
Russo appealed against the sentence imposed by the Court of Appeal, which had affirmed the primary judge's sentencing of three years' imprisonment for the charge of carjacking, and a total effective sentence of four years with a non-parole period of three years. The appellant had accosted the victim in their driveway at night and stolen their vehicle. He then drove the stolen vehicle erratically and at excessive speeds while being pursued by police. The appeal was concerned with the severity of the sentence, specifically whether the sentence for the carjacking charge and the non-parole period were manifestly excessive.
The legal issues for the court to decide were whether the sentence on the carjacking charge and the non-parole period were manifestly excessive. The maximum penalty for carjacking is 15 years' imprisonment, and the offence was classified as a medium-range carjacking. The court considered the mitigating factors presented but found that the sentence of four years was within the sentencing judge's discretion. The court also noted that while comparable cases could provide some guidance, they were not determinative of the appropriate sentence. The non-parole period of 75% of the head sentence was considered manifestly excessive, as it did not adequately balance the appellant's rehabilitation and reintegration into the community.
The court found that the total effective sentence of four years was not manifestly excessive, but the non-parole period of three years was. The court held that a shorter non-parole period was required in the interests of the appellant's rehabilitation and reintegration into the community. The appeal was ultimately dismissed, and the non-parole period was fixed at two years and six months. This decision emphasises the importance of balancing the severity of the offence with the appellant's prospects for rehabilitation and reintegration into society when determining an appropriate non-parole period.