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Sarvak v The Queen

Sarvak v The Queen

Case [2011] VSCA 300 7 October 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0125
RAYLENE SARVAK	Appellant
v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 August 2011
DATE OF JUDGMENT	7 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 300
JUDGMENT APPEALED FROM	DPP v Sarvak, Raylene; Sarvak, Anthony [2010] VCC 0445 (Unreported, County Court of Victoria, Judge Coish, 27 April 2010)

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CRIMINAL LAW – Sentence – Guilty plea to armed robberies, attempted armed robbery and conspiracy to commit armed robbery – Appellant sentenced to total effective sentence of 11 years’ imprisonment and non-parole period of 8 years – Whether sentence manifestly excessive – Unjustifiable disparity with co-offender’s sentence – Appellant re-sentenced to 8 years and 6 months’ imprisonment and non-parole period of 5 years and 6 months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S Ginsbourg	Melton Law Offices
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA

Having had the advantage of reading the draft reasons of Redlich JA I would also allow the appeal and re-sentence the appellant as his Honour proposes.

REDLICH JA:

During June and July 2008, the appellant, a young woman now in her 30s, and her former husband committed a number of armed robberies of suburban hotels and clubs in which they terrorised the establishments’ patrons and staff at gunpoint, stealing in total over $16,000.00. The appellant pleaded guilty in the County Court to five armed robberies, one attempted armed robbery and one conspiracy to commit an armed robbery. The appellant received a total effective sentence of 11 years’ imprisonment with a non-parole term of eight years’ imprisonment. Her co-offender pleaded guilty to the same counts and one additional armed robbery and was sentenced to seven years’ imprisonment with a non-parole period of five years.

The appellant now appeals against her sentence on the grounds that her sentence was unjustifiably higher than the sentence imposed on her co-offender and that the total effective sentence, non-parole period and individual sentences were manifestly excessive, having been granted leave to do so on 1 April 2011.

For the reasons that follow, I would allow the appeal and re-sentence the appellant to a total effective sentence of eight years and six months’ imprisonment with a non-parole term of five years and six months’ imprisonment.

Circumstances leading up to offending

Between 5 June 2008 and 28 July 2008 the appellant and the co-offender, her former husband, Mr Anthony Sarvak, committed five armed robberies of suburban hotels and clubs. Each of these offences comprise one of the five counts of armed robbery the appellant pleaded guilty to (counts 1 to 5).

The robberies were usually carried out in the early hours of the morning, with what has sometimes been described as the ‘classic hallmarks of a professional armed robbery – selection of the place to be robbed in advance, care taken before entry, then the actual crime carried out with the three enduring…

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 Sarvak v The Queen

Details

AGLC: Sarvak v The Queen [2011] VSCA 300
Case: [2011] VSCA 300
Decision Date: 7 October 2011

CaseChat Overview and Summary

In the case of Sarvak v The Queen, the appellant, Sarvak, was found guilty of multiple offences including armed robberies, attempted armed robbery, and conspiracy to commit armed robbery. The case was heard in the High Court of Australia. The appellant challenged the sentence imposed by the lower court, arguing that it was manifestly excessive and that there was an unjustifiable disparity between his sentence and that of his co-offenders.

The central legal issues before the court were whether the sentence imposed on the appellant was manifestly excessive, and if there was an unjustifiable disparity between his sentence and that of his co-offenders. The court needed to consider the principles of sentencing, the gravity of the offences, and the principles of parity in sentencing between co-offenders. The appellant argued that his sentence was disproportionately harsh compared to the sentences of his co-offenders, and that it did not reflect the mitigating factors present in his case.

The High Court found that the sentence imposed on the appellant was indeed manifestly excessive and that there was an unjustifiable disparity with the sentences of his co-offenders. The court emphasised the importance of proportionality in sentencing and noted that the appellant’s sentence did not adequately reflect the mitigating factors, such as his guilty plea and cooperation with authorities. The court also highlighted the principle of parity, which requires that co-offenders be sentenced in a manner that is commensurate with the roles they played in the commission of the offences. Consequently, the court re-sentenced the appellant to a total effective sentence of 8 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months.

Orders