SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0189
| AGOC DENG SHOK |
| v |
| 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…
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- AGLC
- Shok v The Queen [2020] VSCA 294
- Case
- [2020] VSCA 294
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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