Shalders v The Queen - [2020] VSCA 323

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0173

MICHAEL SHALDERS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2020
DATE OF JUDGMENT:	14 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 323
JUDGMENT APPEALED FROM:	DPP v Shalders (Unreported, County Court of Victoria, Judge Marich, 30 June 2020)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Leave to appeal – Armed robbery – Attempted armed robbery – Theft – Possessing imitation firearm whilst prohibited person – Committing indictable offence whilst on bail – Total effective term of 5 years and 6 months’ imprisonment with non-parole period of 3 years and 4 months – Whether specific error on part of sentencing judge by failing to take into account delay between offending and sentence – Applicant proceeded to contest charges until final directions hearing before trial – Delay not inordinate, and not relevantly material – In any event, no reasonable prospect that lesser sentence would be imposed if leave to appeal granted – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Chris McLennan & Co
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA:

On 19 December 2019, the applicant, Michael Shalders, pleaded guilty in the County Court at Melbourne to the following charges. On 30 June 2020, he was sentenced as set out in the table below.

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Armed robbery [s 75A — Crimes Act 1958] 25 years 4 years and 3 months Base

2 Attempted armed robbery [ss 75A, 321M and 321P — Crimes Act 1958] 20 years 2 years and 3 months 3 months

3 Attempted armed robbery [ss 75A, 321M and 321P — Crimes Act 1958] 20 years 3 years 6 months

4 Attempted armed robbery [ss 75A, 321M and 321P — Crimes Act 1958] 20 years 2 years and 3 months 3 months

5 Theft [s 74 — Crimes Act 1958] 10 years 3 months 1 month

6 Possessing an imitation firearm whilst a prohibited person [s 5AB(2) — Control of Weapons Act 1990] 10 years 1 year and 6 months 2 months

Related summary offence

— Committing an indictable offence whilst on bail [s 30B — Bail Act 1977] 3 months 2 months Nil

Total effective sentence: 5 years and 6 months’ imprisonment

Non-parole period: 3 years and 4 months

Pre-sentence detention declared: 634 days

Section 6AAA statement: 7 years’ imprisonment with a non‑parole period of 5 years

By notice dated 31 August 2020, the applicant now seeks leave to appeal against that sentence on the following ground:

The Learned Sentencing Judge erred in failing to give any weight to the period of delay between the date of the Applicant’s offending and the date of the…

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 Shalders v The Queen

Details

AGLC: Shalders v The Queen [2020] VSCA 323
Case: [2020] VSCA 323
Decision Date: 14 December 2020

CaseChat Overview and Summary

In the matter of Shalders v The Queen, the appellant, Shalders, sought leave to appeal against his sentence imposed by the Supreme Court of Victoria. The appellant was found guilty of armed robbery, attempted armed robbery, theft, possessing an imitation firearm while being a prohibited person, and committing an indictable offence while on bail. The court was required to decide whether the sentencing judge erred in failing to take into account the delay between the offending and the sentence, and whether there was a reasonable prospect that a lesser sentence would be imposed if leave to appeal was granted.

The appellant argued that the delay between the offending and sentencing was a specific error on the part of the sentencing judge, and that the delay was not inordinate but was relevantly material. However, the court found that the delay was not inordinate and not relevantly material to the sentence imposed. Furthermore, the court held that there was no reasonable prospect that a lesser sentence would be imposed if leave to appeal was granted.

The Supreme Court of Victoria found that the appellant had not demonstrated a specific error on the part of the sentencing judge in failing to take into account the delay between the offending and sentencing. The court held that the delay was not inordinate, and that it was not relevantly material to the sentence imposed. Additionally, the court found that there was no reasonable prospect that a lesser sentence would be imposed if leave to appeal was granted. Accordingly, the court refused the appellant leave to appeal against his sentence.

The final orders of the court were that leave to appeal against the sentence was refused. The appellant's total effective term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 4 months, was upheld.

Orders