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Shok v The Queen

Shok v The Queen

Case [2020] VSCA 294 20 November 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0189

AGOC DENG SHOK

THE QUEEN

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JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2020
DATE OF JUDGMENT:	20 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 294
JUDGMENT APPEALED FROM:	[2019] VCC 1447 (Judge M Sexton)

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of nine offences – Three counts of theft (12 months, 1 month, 1 month) – Attempted aggravated burglary (3 years 6 months) – Armed robbery (5 years) – Dangerous driving while pursued by police (12 months) – Use of imitation firearm (12 months) – Driving unlicensed (3 months) – Commit indictable offence on bail (1 month) – Total effective sentence 6 years 7 months – Non-parole period 3 years 9 months – Whether sentences for attempted aggravated burglary and armed robbery manifestly excessive – Whether total effective sentence manifestly excessive – Whether non-parole period manifestly excessive – Whether judge gave mitigating factors adequate weight in sentence – Leave refused – Crown conceded sentence for driving unlicensed manifestly excessive – Incorrect maximum penalty provided to judge – Leave granted – Appeal allowed – Applicant resentenced to one month to be served concurrently – Orders made addressing failure to order mandatory licence disqualification in relation to two charges.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	David Barrese & Associates Criminal Defence Lawyers
For the Respondent	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA:

On 7 January 2018, the applicant used an imitation semi-automatic handgun in an attempted aggravated burglary of a hotel room and, later that day, an armed robbery at a 7-Eleven store. He drove from the scene of the armed robbery by car and, seeking to flee from police who were in pursuit, drove dangerously, colliding with two other vehicles. In addition to the three serious offences of attempted aggravated burglary,[1] armed robbery[2] and dangerous driving while pursued by police,[3] the applicant also committed associated, less serious offences. He had stolen the car he was driving five days before,[4] he was driving unlicensed,[5] he stole petrol from two service stations,[6] his use of the imitation firearm was itself an offence,[7] and he was on bail at the time.[8]
[1]Charge 2.
[2]Charge 5.
[3]Charge 6.
[4]Charge 1.
[5]Summary charge 9.
[6]Charges 3 and 4.
[7]Charge 7.
[8]Summary charge 18.

His conduct resulted in the laying of nine charges (including two summary charges) to which the applicant pleaded guilty. On 4 September 2019 he was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1. Theft[9] 10 years 12 months 3 months

2.
Attempted

aggravated burglary[10]
20 years 3 years, 6 months 12 months

3. Theft[11] 10 years 1 month —

4. Theft[12] 10 years 1 month —

5.

Armed robbery[13]

25 years

5 years

Base

6. Dangerous driving while pursued by police[14] 3 years 12 months 2 months

7. Prohibited person use imitation firearm[15] 10…

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 Shok v The Queen

Details

AGLC: Shok v The Queen [2020] VSCA 294
Case: [2020] VSCA 294
Decision Date: 20 November 2020

CaseChat Overview and Summary

Shok was convicted of nine offences, and his sentence was the subject of appeal before the court. The offences included multiple counts of theft, attempted aggravated burglary, armed robbery, dangerous driving while pursued by police, use of an imitation firearm, driving unlicensed, and committing an indictable offence while on bail. The sentences imposed were varied and included terms of imprisonment ranging from one month to five years, with a total effective sentence of six years and seven months, and a non-parole period of three years and nine months. The appeal focused on whether the sentences for attempted aggravated burglary and armed robbery were manifestly excessive, as well as the overall total effective sentence and non-parole period. Additionally, the appeal questioned whether the judge adequately considered mitigating factors during sentencing.

The court was tasked with determining whether the sentences for attempted aggravated burglary and armed robbery were manifestly excessive, given the nature and circumstances of the offences. Furthermore, the appeal examined the total effective sentence and non-parole period to ensure they were not manifestly excessive in light of the cumulative impact of the sentences. Another aspect of the appeal was to assess whether the judge appropriately weighed the mitigating factors presented during sentencing. The Crown conceded that the sentence for driving unlicensed was manifestly excessive, and it was also noted that the judge was provided with an incorrect maximum penalty for one of the charges.

The court found that the sentences for attempted aggravated burglary and armed robbery were indeed manifestly excessive, as was the total effective sentence and non-parole period. The court also concluded that the judge did not give adequate weight to the mitigating factors in the sentencing process. Consequently, the appeal was allowed, and the applicant was resentenced to one month to be served concurrently. Additionally, orders were made to address the failure to order mandatory licence disqualification in relation to two of the charges.

Orders