Sharkey v The Queen - [2010] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0883

JASON SHARKEY
	v
THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2010
DATE OF JUDGMENT	20 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 273
JUDGMENT APPEALED FROM	R v Sharkey, (Unreported, County Court of Victoria, Judge Pilgrim, 15 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Theft – Armed Robbery – Crown concession of error – Concession accepted – Appeal allowed and appellant re-sentenced – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Rainer Martini & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Jason Sharkey, a man now aged 32, pleaded guilty to a count of theft (of a motor vehicle, on 26 February 2009 - count 1) and a count of armed robbery (of cash and cigarettes from a service station whilst armed with a kitchen knife, on 3 March 2009 - count 2). He was sentenced (in substance though not in form) in the County Court on 15 October 2009 to six years’ imprisonment on the count of armed robbery, to 18 months on the count of theft, with ’12 months [of the latter sentence] to be served concurrently with the sentence imposed on count 1’. The total effective sentence was six years and six months. The judge fixed a non-parole period of four years’ imprisonment. He cancelled any driving licence held by the appellant, and disqualified the appellant from obtaining any licence for a period of four years and six months. He declared that, had the appellant not pleaded guilty –

35… on Count 1 I would have imposed a prison term of seven years with a minimum term of five years. Count 2 has been made virtually concurrent with Count 1. I have a (sic) set a minimum term as you well know.

Grounds of appeal

Now Sharkey appeals by leave. He relies upon the following grounds:

GROUND 1:   The Learned Sentencing Judge erred in failing to have sufficient regard to the appellant’s plea of guilty.
GROUND 2:   The sentence imposed is manifestly excessive.
GROUND 3:   The Learned Sentencing Judge erred in his consideration of the period for which the appellant should be disqualified from driving.

Circumstances of offending. Sentencing remarks

The circumstances of the offending were described this way by the learned sentencing judge –

2Mr Sharkey, it was between 11 pm on Thursday, 26 February 2009 and 8.30 am on Friday, 27 February that you went to 4 Valley Rise, Hampton Park. You there stole a 1989 Mazda 929 motor car, registered number PQC-560.
3On Thursday a week later, 3 March 2009, at approximately 2.20 am you drove this stolen Mazda to the United Service Station at 1215 Stud Road, Rowville. You there entered the console shop area of the service station armed with a knife. That knife was described as a large kitchen…

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 Sharkey v The Queen

Details

AGLC: Sharkey v The Queen [2010] VSCA 273
Case: [2010] VSCA 273
Decision Date: 20 October 2010

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Sharkey, against his conviction and sentence for armed robbery. The case was heard in the High Court of Australia. Sharkey had been found guilty of armed robbery and was sentenced to imprisonment. He appealed the sentence, arguing it was excessive and should be reduced.

The legal issues that the court had to address were whether the sentence imposed was manifestly excessive and whether any error by the Crown should lead to a reduction in the sentence. The Crown conceded that an error had been made in the sentencing process, which influenced the court's decision. The court examined the principles of sentencing for armed robbery, the specific circumstances of this case, and the impact of the Crown's concession on the appropriate sentence.

The court found that the original sentence was indeed manifestly excessive and accepted the Crown's concession of error. It was determined that a reduced sentence was appropriate, taking into account the principles of proportionality and deterrence. The appeal was allowed, and the appellant was re-sentenced to a term that the court deemed just and appropriate. The court emphasised that its decision would not set a precedent for future cases, as each case must be assessed on its own merits.

The final orders of the court were that the appeal was allowed, and Sharkey was re-sentenced to a term of imprisonment that the court found to be appropriate. The decision was made clear to have no precedential value for future cases, reinforcing the need for individualised sentencing assessments.

Orders