Sankey v The Queen - [2016] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0143

ANDREW SANKEY	Applicant
v
THE QUEEN	Respondent

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2016
DATE OF JUDGMENT:	7 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 244
JUDGMENT APPEALED FROM:	DPP v Sankey (Unreported, County Court of Victoria, Judge Wischusen, 29 June 2016)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery – Obtaining property by deception – Total effective sentence of 12 months’ imprisonment and Community Correction Order of 18 months – Whether judge erred in imposing a CCO for all charges and term of imprisonment on one charge – Whether judge erred in finding applicant’s offending involved disguise – Whether judge erred in assessment of applicant’s prospects of rehabilitation – Whether judge erred in failing to moderate general or specific deterrence on account of the applicant’s intellectual deficits – No reasonable prospect of sentence being reduced – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Greg Thomas, Barrister & Solicitor
For the Crown	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

The applicant pleaded guilty, in the County Court at Melbourne, to one charge of armed robbery, contrary to s 75A of the Crimes Act 1958 (charge 1) and six charges of obtaining property by deception, contrary to s 81 of that same Act (charges 2, 3, 4, 5, 6 and 7).

He was sentenced on 29 June 2016, on charge 1, to 12 months’ imprisonment, combined with a Community Correction Order (‘CCO’) of 18 months and to a CCO of the same duration in respect of charges 2, 3, 4, 5, 6 and 7.

The maximum penalty for armed robbery is 25 years’ imprisonment, and for obtaining property by deception, 10 years’ imprisonment.

By notice dated 26 July 2016 the applicant seeks leave to appeal against sentence. He relies on four grounds, as follows:

1.The learned sentencing judge erred in imposing a single Community Correction Order (‘CCO’) for charges 1 -7 in circumstances where he also imposed a term of imprisonment on charge 1.
2.The learned sentencing judge erred in finding the applicant’s offending involved disguise.
3.The learned sentencing judge erred in his assessment of the applicant’s prospects of rehabilitation.
4.The learned sentencing judge erred in failing to moderate general or specific deterrence on account of the applicant’s intellectual deficits.

For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

On 26 July 2014, two sisters, NW and SW, were dropped off at Hallam Railway Station at about 7.25 pm. They both intended to catch the train to Noble Park. They walked towards a ‘waiting booth’ on the platform to await a city-bound train.

As they reached the booth, the applicant and a co-offender, Nathan Foote, approached them. The applicant was…

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 Sankey v The Queen

Details

AGLC: Sankey v The Queen [2016] VSCA 244
Case: [2016] VSCA 244
Decision Date: 7 October 2016

CaseChat Overview and Summary

The case of Sankey v The Queen involved the applicant appealing against his sentence for armed robbery and obtaining property by deception. The applicant was sentenced to a total effective sentence of 12 months’ imprisonment and a Community Correction Order (CCO) of 18 months. The applicant sought leave to appeal against his sentence, arguing that the judge had erred in several respects, including the imposition of a CCO for all charges and the term of imprisonment on one charge, the finding that his offending involved a disguise, the assessment of his prospects of rehabilitation, and the failure to moderate general or specific deterrence on account of his intellectual deficits.

The primary legal issues the court had to decide were whether the judge had erred in imposing a CCO for all charges and the term of imprisonment on one charge, whether the judge had erred in finding that the applicant's offending involved a disguise, whether the judge had erred in assessing the applicant's prospects of rehabilitation, and whether the judge had erred in failing to moderate general or specific deterrence on account of the applicant's intellectual deficits. The court had to consider the relevant legal principles and the facts of the case to determine whether the judge's sentencing decisions were correct.

The court held that there was no reasonable prospect of the sentence being reduced on appeal. The court found that the judge had not erred in imposing a CCO for all charges and the term of imprisonment on one charge, as the judge had properly considered the circumstances of the offending and the applicant's personal circumstances. The court also found that the judge had not erred in finding that the applicant's offending involved a disguise, as the evidence supported this finding. The court held that the judge had not erred in assessing the applicant's prospects of rehabilitation, as the judge had properly considered the evidence and made a finding that was open on the evidence. Finally, the court held that the judge had not erred in failing to moderate general or specific deterrence on account of the applicant's intellectual deficits, as the judge had properly considered the circumstances of the offending and the applicant's personal circumstances.

The court refused the applicant's application for leave to appeal against his sentence, holding that there was no reasonable prospect of the sentence being reduced on appeal. The court found that the judge had not erred in imposing a CCO for all charges and the term of imprisonment on one charge, had not erred in finding that the applicant's offending involved a disguise, had not erred in assessing the applicant's prospects of rehabilitation, and had not erred in failing to moderate general or specific deterrence on account of the applicant's intellectual deficits.

Orders