Sabitovic v The King - [2024] VSCA 66

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0206

ALLEM SABITOVIC	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2024
DATE OF JUDGMENT:	17 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 66
JUDGMENT APPEALED FROM:	[2023] VCC 1894 (Judge Ellis)

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CRIMINAL LAW – Sentence – Appeal – Armed robbery – Serious armed robbery – Category 2 offence – Lengthy criminal history – Substantial mitigatory factors – Good prospects of rehabilitation – Sentence of 2 years and 6 months, with non-parole period of 1 year and 4 months – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr J Portelli
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BEACH JA:

On 13 September 2023, the applicant pleaded guilty in the County Court to one charge of armed robbery and one related summary charge of committing an indictable offence while on bail. On 19 October 2023, following a plea hearing on 11 October 2023, the applicant was sentenced to a term of imprisonment of 2 years and 6 months on the armed robbery charge, and 1 month imprisonment (to be served concurrently) on the related summary offence. This made a total effective sentence of 2 years and 6 months. The judge fixed a non-parole period of 1 year and 4 months. The maximum penalty for armed robbery is 25 years.
At the time of sentencing, the judge declared that 211 days had already been served by the applicant under the sentence she imposed. In addition, her Honour declared that, but for the applicant’s plea of guilty, she would have sentenced him to a total effective sentence of 3 years and 2 months, with a non-parole period of 1 year and 10 months.
The applicant now seeks leave to appeal against sentence. His proposed ground of appeal is that, in all the circumstances, the head sentence and non-parole period imposed are manifestly excessive.

Circumstances of the offending

The applicant and his girlfriend Fiona Jones attended the St Kilda RSL on Acland Street on the evening of 24 January 2021, where they met up with Zereth Lebeter. The applicant and Jones left the RSL when police attended for an unrelated matter. Lebeter followed shortly thereafter.
On the morning of 25 January 2021, the victim, a 56 year old man, was driving along Greeves Street, St Kilda seeking services from a street sex worker. The victim observed Jones near the intersection with Inkerman Street. They spoke about paid sexual services and Jones told the victim to go to her flat. She led him to the courtyard of premises in Greeves Street.
The applicant and an unidentified co-offender crouched behind a wall near the courtyard. Lebeter was also present in the vicinity, and when the victim and Jones walked through the courtyard,…

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 Sabitovic v The King

Details

AGLC: Sabitovic v The King [2024] VSCA 66
Case: [2024] VSCA 66
Decision Date: 17 April 2024

CaseChat Overview and Summary

Sabitovic was convicted of armed robbery, a category 2 offence, and was sentenced to 2 years and 6 months imprisonment, with a non-parole period of 1 year and 4 months. The appellant sought to appeal the sentence, arguing it was manifestly excessive. The primary judge considered the appellant’s lengthy criminal history, the substantial mitigatory factors, and the prospects of rehabilitation. The appellant argued that the sentence was manifestly excessive and should be quashed and replaced with a more lenient sentence.

The court examined whether it was reasonably arguable that the sentence was manifestly excessive. It considered the seriousness of the offence, the appellant’s criminal history, and the circumstances of the offence. The court concluded that while the sentence was severe, it was not manifestly excessive. The substantial mitigatory factors and the prospects of rehabilitation were appropriately weighed against the seriousness of the crime. The court found that the sentence was within the range of sentences that could be considered appropriate for the offence.

The court held that it was not reasonably arguable that the sentence was manifestly excessive. The sentence reflected the seriousness of the offence and appropriately balanced the aggravating and mitigating factors. The application for leave to appeal was refused. The appellant’s lengthy criminal history and the circumstances of the offence supported the severity of the sentence imposed. The prospects of rehabilitation did not warrant a significantly lesser sentence.

Orders