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Sharp v The Queen

Sharp v The Queen

Case [2018] VSCA 327 6 December 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0261

GLEN SHARP	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	6 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 327
JUDGMENT APPEALED FROM:	DPP v Sharp (Unreported, County Court of Victoria, Judge Gucciardo, 17 November 2017)

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CRIMINAL LAW – Appeal – Sentence – Parity – Armed robbery – Appellant sentenced to 5 years’ imprisonment – Co-offender sentenced to 4 years’ imprisonment – Whether parity principle infringed – Whether judge found appellant was controlling mind – Whether open to differentiate between appellant and co-offender based on different roles in execution of offence – Appeal allowed – Re-sentenced to 4 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J F Chisholm	Balmer & Associates
For the Respondent	Ms S M K Borg	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

NIALL JA:

The appellant pleaded guilty in the County Court to four charges and, on 17 November 2017, was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1

Armed robbery(Crimes Act 1958 s 75A)

25 years

4 years

12 months

2

Armed robbery(Crimes Act 1958 s 75A)

25 years

5 years

Base

3

Possess drug of dependence (Drugs Poisons and Controlled Substances Act 1981 s 73(1))

30 penalty units or 1 year imprisonment or both

3 months

1 month

4

Armed robbery

(Crimes Act 1958 s 75A)

25 years

4 years 6 months

18 months

Total Effective Sentence:

7 years 7 months’ imprisonment

Non-Parole Period:

4 years 6 months

Pre-Sentence Detention:

659 days

6AAA Declaration:

8 years 6 months’ imprisonment, with a non-parole period of 6 years

Other Orders:

Disposal order

The appellant applied to this Court for leave to appeal against his sentence on the sole ground that the disparity between the sentence imposed on him and a co-offender in respect of the armed robbery the subject of charge 2 gave rise to a justifiable sense of grievance. On 9 March 2018, a judge of this Court granted the appellant leave to appeal.[1]
[1]Sharp v The Queen (Unreported, Victorian Court of Appeal, Kyrou JA, 9 March 2018).

For the reasons that follow, we would allow the appeal.

The offending

The relevant facts, and the basis on which the judge was invited to sentence the appellant, were set out in the prosecution written opening.

The armed robbery that was the subject of charge 2 took place on 16 January 2016.[2] The victim, Joshua Hill, was driving through St Kilda in a Holden Astra sedan which belonged to his friend. One of the appellant’s co-offenders, Rebecca Robertson, asked Mr Hill for help, telling him that she needed to get home to South Melbourne to administer insulin to her diabetic son. Mr Hill agreed to drive Robertson (who introduced herself as ‘Alannah’), and she began to direct him to South Melbourne.
[2]The appellant’s ground of appeal…

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 Sharp v The Queen

Details

AGLC: Glen Sharp v The Queen [2018] VSCA 327
Case: [2018] VSCA 327
Decision Date: 6 December 2018

CaseChat Overview and Summary

Sharp v The Queen is a decision by the High Court of Australia concerning an appeal against sentence in a case of armed robbery. The appellant was sentenced to five years in prison, while his co-offender received a sentence of four years. The appellant argued that the difference in their sentences constituted an infringement of the parity principle, which requires sentences to be proportionate and comparable in similar cases. The appellant also contended that the judge did not find that he was the controlling mind behind the offence, and that there was no basis to differentiate between the appellant and his co-offender based on their respective roles in the execution of the crime.

The central legal issues before the court were whether the parity principle had been infringed and whether the judge was correct in finding that there was a basis to differentiate between the appellant and his co-offender. The court had to consider whether the judge’s assessment of the roles played by the appellant and his co-offender was sufficient to justify the disparity in their sentences. The court also examined the principles of sentencing in cases of armed robbery, and whether the judge’s approach to sentencing was in accordance with these principles.

The court found that the parity principle had indeed been infringed, as the judge had not adequately justified the difference in the sentences. The court held that the judge’s reasoning did not sufficiently account for the roles played by the appellant and his co-offender, and that the judge’s assessment of their respective roles was not well-founded. The court emphasised that in cases of armed robbery, the principle of parity should be strictly adhered to, and that any deviation from this principle must be clearly and convincingly justified. As a result, the appeal was allowed, and the appellant’s sentence was reduced to four years’ imprisonment, to align with the sentence of his co-offender.

The final orders of the court were that the appeal against sentence be allowed, and that the appellant be re-sentenced to four years’ imprisonment, to be served concurrently with any other sentences the appellant may be serving. This decision underscores the importance of the parity principle in sentencing and highlights the need for judges to provide clear and convincing justification for any deviations from this principle.

Orders