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Siilata v The Queen

Siilata v The Queen

Case [2019] VSCA 277 28 November 2019

Appeal

Sentencing

Aggravated & Exemplary Damages

Jurisdiction

Specific Performance

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0196

DAMIAN SIILATA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, WHELAN and PRIEST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	28 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 277
JUDGMENT APPEALED FROM:	[2018] VSC 479 (Coghlan JA)

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CRIMINAL LAW – Appeal – Sentence – Aggravated carjacking – Sentence of seven years’ imprisonment – Order that five and a half years of sentence be cumulated with existing sentence of three years’ imprisonment – Total effective sentence of eight and a half years’ imprisonment with single non‑parole period of six years – Whether sentence, cumulation order and non‑parole period each manifestly excessive – Seriousness of offending – Effect of youth on general sentencing principles where offending serious – Importance of denunciation and general and specific deterrence – Prospects of rehabilitation – Current sentencing practice – Cases relied on by applicant as comparable of no assistance – Sentence, cumulation order and non‑parole period each within range of available sentencing options – Leave to appeal refused – Crimes Act 1958 s 79A – Azzopardi v The Queen (2011) 35 VR 43, Director of Public Prosecutions v Lawrence (2004) 10 VR 125, Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428, R v Bolton [1998] 1 VR 692 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A G Waters	Dowling McGregor
For the Respondent	Mr C Carr with Mr T Bourbon	John Cain, Solicitor for Public Prosecutions

FERGUSON CJ
WHELAN JA
PRIEST JA:

The applicant pleaded guilty to aggravated carjacking contrary to s 79A of the Crimes Act 1958. He was sentenced to seven years’ imprisonment. The sentencing judge ordered that five and a half years of the sentence be served cumulatively upon a sentence of three years’ imprisonment that the applicant was already serving. The result was a total effective sentence of eight and a half years.[1] The sentencing judge fixed a single non‑parole period of six years.[2]
[1]DPP v Pesefea [2018] VSC 479 (‘Reasons’).
[2]The sentencing judge ordered that the non‑parole period be fixed from 17 October 2017, being the date upon which the applicant had been sentenced to three years’ imprisonment with a non‑parole period of 20 months imposed at the Dandenong Magistrates’ Court.

The applicant seeks leave to appeal against his sentence on the ground that the aggravated carjacking sentence, the order for partial cumulation and the fixing of a new single non‑parole period of six years were each manifestly excessive.[3]
[3] On the hearing of the application for leave to appeal, the applicant abandoned a separate ground of appeal that the sentencing judge erred when assessing his prospects of rehabilitation, in particular by assessing them as ‘bleak’ and by failing to give sufficient or any weight to his youth. The applicant relied on those matters (and others) in relation to his manifest excess ground of appeal.

To succeed the applicant must establish that 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 Siilata v The Queen

Details

AGLC: Siilata v The Queen [2019] VSCA 277
Case: [2019] VSCA 277
Decision Date: 28 November 2019

CaseChat Overview and Summary

Siilata sought leave to appeal against his conviction and sentence for aggravated carjacking. The court had sentenced him to seven years’ imprisonment for the offence, ordered that five and a half years of this sentence be cumulated with an existing sentence of three years’ imprisonment, and set a non‑parole period of six years. Siilata argued that the sentence, cumulation order, and non‑parole period were each manifestly excessive.

The court considered the seriousness of the offending and the effect of the applicant's youth on general sentencing principles. The court noted the importance of denunciation, general and specific deterrence, and prospects of rehabilitation. It found that the sentence, cumulation order, and non‑parole period were within the range of available sentencing options and did not consider them manifestly excessive. The court found that comparable cases relied on by the applicant were not relevant to the current sentencing practice.

The court concluded that the sentence, cumulation order, and non‑parole period were appropriate and not manifestly excessive. The application for leave to appeal was refused. The court referred to the relevant statutory provisions and cases, including Azzopardi v The Queen, Director of Public Prosecutions v Lawrence, Director of Public Prosecutions v Dalgliesh, and R v Bolton.

Orders