DPP v Saner; DPP v Kamal (Unreported, County Court of Victoria, Judge Pilgrim, 31 May 2013)
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CRIMINAL LAW – Sentence – Two co-offenders both sentenced for conspiracy to commit armed robbery and theft of a motor vehicle, as well as separately for multiple offences – Pleas of guilty – Approach to sentencing – Cumulation – Each sentenced to six years’ imprisonment for conspiracy to commit armed robbery and 18 months (Saner) and two years (Kamal) for theft – Parity with each other and two other co-offenders – Whether sentences manifestly excessive – Whether sentencing judge failed to give sufficient weight to undertaking to give evidence and to guilty pleas – Double punishment – Failure to take into account amendments to the Firearms Act 1996 – Armistead v The Queen [2011] VSCA 84, Kruzenga v The Queen [2014] VSCA 10 and Dang v The Queen [2014] VSCA 49 discussed – Appeal allowed and appellants re-sentenced.
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APPEARANCES:
Counsel
Solicitors
For the Appellant Saner
Mr S Ginsbourg
Revill and Papa Lawyers
For the Appellant Kamal
Mr D D Gurvich
Turnbull Lawyers
For the Crown
Mr B F Kissane
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA:
I agree with Tate JA.
TATE JA:
The appellants, Tekin Saner (‘Saner’) and Matthew Kamal (‘Kamal’) each appeal, by leave,[1] against the sentences imposed on them in the County Court.[2] The appeals were heard together.
[1]Leave to appeal against sentence was granted by Priest JA on 6 November 2013.
[2]I will refer to them jointly as ‘the appellants’ but separately as ‘Saner’ and ‘Kamal’.
The appellants pleaded guilty, on a joint indictment, to one charge of conspiring to commit an armed robbery on a sports bar in Ballarat (charge 1) and one charge of theft of a motor vehicle (charge 10). The motor vehicle was stolen in Ballarat and was connected to the planned armed robbery. They also pleaded guilty to several other offences they had committed separately at around the same time in 2011. Some of these were summary offences.
Charges 1 and 10 were the only offences to which they both pleaded guilty.
Following pleas in mitigation, the appellants were sentenced by his Honour Judge Pilgrim on 31 May 2013 as follows:
Charge on Indictment
Offence
Max
Saner
Kamal
Sentence
Cumulation
Sentence
Cumulation
1
Conspiracy to commit armed robbery [Crimes Act 1958 s 321(1)]
[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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AGLC
Saner v The Queen [2014] VSCA 134
Case
[2014] VSCA 134
Decision Date
CaseChat Overview and Summary
In the case of Saner v The Queen, the appellant, Saner, was convicted along with three co-defendants for conspiracy to commit armed robbery and theft of a motor vehicle. Both Saner and Kamal, another co-offender, entered guilty pleas to their respective charges. The matter was heard and determined in the Victorian Court of Appeal, which was tasked with assessing the sentences imposed by the trial judge.
The primary legal issues the Court of Appeal needed to address were whether the sentences handed down were manifestly excessive and whether the sentencing judge failed to adequately consider certain factors, including the appellant's undertaking to give evidence against the other co-offenders and the guilty pleas entered by the appellants. Additionally, the Court needed to determine if the sentences failed to properly account for the amendments to the Firearms Act 1996 and whether the sentences imposed constituted double punishment.
The Court of Appeal found that the sentences imposed by the trial judge were manifestly excessive. It was held that the sentencing judge did not sufficiently consider the appellant's undertaking to give evidence and their guilty pleas. Furthermore, the Court found that the sentences failed to properly account for the amendments to the Firearms Act 1996. The Court referred to previous cases such as Armistead v The Queen, Kruzenga v The Queen, and Dang v The Queen, which emphasised the importance of considering these factors in the sentencing process. Consequently, the Court of Appeal allowed the appeal and re-sentenced the appellants.