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Salmi v The Queen

Salmi v The Queen

Case [2020] VSCA 250 25 September 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0157

KEN MICHAEL SALMI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HARGRAVE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2020
DATE OF JUDGMENT:	25 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 250
JUDGMENT APPEALED FROM:	[2019] VCC 1026 (Judge Lacava)

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CRIMINAL LAW — Appeal — Sentence — Appellant convicted of home invasion, theft and arson — Whether sentence of five years’ imprisonment for arson manifestly excessive — Disconformity with current sentencing practices — Where mitigating factors present including early guilty plea, limited criminal history and reasonably good prospects of rehabilitation — Sentence manifestly excessive — Appellant re‑sentenced to three years and six months’ imprisonment for arson — Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428, Kilic v The Queen (2016) 259 CLR 256 applied.

CRIMINAL LAW — Appeal — Sentence — Multi-sentence case — Where leave to appeal only granted in respect of one sentence — Whether sentencing discretion re-opened in respect of other sentences — Sentencing discretion re‑opened only in respect of the sentence the subject of the grant of leave — Ludeman v The Queen (2010) 31 VR 606, Hawke v The Queen [2019] VSCA 276 applied, R v Lomax (1998) 1 VR 551, R v Harkness [2001] VSCA 87, R v Coukoulis [2003] VSCA 22 distinguished — Criminal Procedure Act 2009 ss 280-2.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr M Fitzgerald	Doogue + George
For the Respondent	Mr P Bourke	Ms A Hogan, Solicitor for Public Prosecutions

HARGRAVE JA
T FORREST JA:

Introduction

In September 2018, Anthony Grima lived in a converted shipping container located in a tip in Sunshine North. It was his home and contained all of his possessions.

Grima was at his house on 30 September 2018 with an acquaintance, Belinda Showler. At about 7:45 pm, the appellant and a second male, Christopher Binder, forced entry into the house, stole property (including money and tools), and destroyed the house and its contents by fire.

On 22 May 2019, the appellant pleaded guilty in the County Court to home invasion (charge 1),[1] theft (charge 2)[2] and arson (charge 3).[3]
[1]Crimes Act 1958 s 77A. The maximum sentence is 25 years’ imprisonment.
[2]Crimes Act 1958 s 74(1). The maximum sentence is 10 years’ imprisonment.
[3]Crimes Act 1958 ss 197(1), (6). The maximum sentence is 15 years’ imprisonment.

Following a plea, on 9 July 2019 the judge sentenced the appellant to be imprisoned for six years, with a non-parole period of four years, according to the following table:

Charge Offence Sentence Cumulation

1 Home invasion 2 years 1 year

2 Theft 3 months —

3 Arson 5 years Base

Total Effective Sentence 6 years’ imprisonment

Non-Parole Period 4 years

Pre-Sentence detention 48 days

Section 6AAA Statement 8 years’ imprisonment with 6 years non-parole

Other orders Forensic sample

Charge	Offence	Sentence	Cumulation
1	Home invasion	2 years	1 year
2	Theft	3 months	—
3	Arson	5 years	Base
Total Effective Sentence	6 years’ imprisonment
Non-Parole Period	4 years
Pre-Sentence detention	48 days
Section 6AAA Statement	8 years’ imprisonment with 6 years non-parole
Other orders	Forensic sample

The appellant sought leave to appeal on a single ground —…

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 Salmi v The Queen

Details

AGLC: Salmi v The Queen [2020] VSCA 250
Case: [2020] VSCA 250
Decision Date: 25 September 2020

CaseChat Overview and Summary

Salmi was convicted of home invasion, theft and arson, and subsequently sentenced to a total of eight years’ imprisonment. The appellant, Salmi, appealed against the sentence imposed for the offence of arson, arguing that the five-year sentence was manifestly excessive. The appeal was heard by the Court of Appeal in Victoria. The central legal issue before the court was whether the sentence imposed for the arson offence was manifestly excessive, taking into account the mitigating factors present in the case. The court considered the principles outlined in Director of Public Prosecutions v Dalgliesh (a pseudonym) and Kilic v The Queen, which provide that a sentence may be manifestly excessive if it does not conform to current sentencing practices, and where mitigating factors are present.

The Court of Appeal found that the sentence for the arson offence was manifestly excessive, as it did not align with current sentencing practices and failed to adequately consider the mitigating factors present in the case. The court accepted that the appellant had a limited criminal history, had entered an early guilty plea, and had reasonably good prospects of rehabilitation. The sentence was therefore reduced to three years and six months’ imprisonment for the arson offence. Additionally, the court considered whether the sentencing discretion was re-opened in respect of the other sentences imposed. The court found that the sentencing discretion was only re-opened in respect of the sentence that was the subject of the grant of leave, and not in respect of the other sentences imposed. This conclusion was reached by applying the principles from Ludeman v The Queen, Hawke v The Queen, R v Lomax, R v Harkness, and R v Coukoulis, as well as sections 280-2 of the Criminal Procedure Act 2009.

In summary, the Court of Appeal allowed the appeal against the sentence for the arson offence, reducing it from five years to three years and six months’ imprisonment. The court did not re-open the sentencing discretion in respect of the other sentences imposed. The final orders of the court were that the sentence for the arson offence was reduced to three years and six months’ imprisonment, and that the appellant’s convictions for home invasion, theft and arson were otherwise affirmed.

Orders