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Sinclair v The Queen

Sinclair v The Queen

Case [2021] VSCA 144 31 May 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0008

NATHAN SINCLAIR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2021
DATE OF JUDGMENT:	31 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 144
JUDGMENT APPEALED FROM:	DPP v Sinclair (Unreported, County Court of Victoria, Judge Mullaly, 8 December 2020)

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CRIMINAL LAW – Appeal – Sentence – Parity – Aggregate sentence – Theft, armed robbery – Applicant sentenced to 9 months’ imprisonment with a 12 month CCO – Applicant breached CCO condition – Resentenced to aggregate sentence of 26 months’ imprisonment with 18 months non-parole – Applicant 19 at time of offending – Aboriginal heritage – Disadvantaged background – Differential between co-offenders’ sentences not reasonably open – Whether judge erred in imposing aggregate sentence – Crown concession – Offences of significantly different seriousness – Imposition of aggregate sentence not reasonably open – Appeal allowed – Applicant resentenced – Total effective sentence of 15 months’ imprisonment with 9 months non-parole – Stevens v The Queen [2020] VSCA 170, DPP v Frewstal Pty Ltd (2015) 47 VR 660 considered – Sentencing Act 1991 s 9.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Murphy and Mr D Rofe	Chester Metcalfe & Co
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KAYE JA:

Summary

The applicant (‘NS’) pleaded guilty to one charge of armed robbery, one charge of theft and one summary charge of driving while disqualified. He was sentenced to 9 months’ imprisonment (together with a 12 month community correction order) on the armed robbery charge and 3 months’ imprisonment (also with a 12 month CCO) on the theft charge, to be served concurrently. The total effective (combination) sentence was 9 months’ imprisonment with a 12 month CCO.

This was, as the judge said in his reasons, a ‘merciful’ sentence.[1] His Honour concluded that NS’s moral culpability was reduced because he had ‘a disadvantaged upbringing that directly impacts on [his] behaviour’.[2] His Honour also considered that there was ‘little value in terms of the sentencing purposes in any significant further time in prison’.[3] He noted, by reference to what was said in Boulton v The Queen,[4] that ‘imprisonment is not conducive to rehabilitation, indeed quite the contrary’.[5]
[1]DPP v Sinclair [2020] VCC 784, [50] (‘Reasons’).
[2]Ibid [35].
[3]Ibid [50].
[4](2014) 46 VR 308; [2014] VSCA 342.
[5]Reasons [46].

NS subsequently breached the conditions of the CCO, by failing to attend a number of supervision appointments with Community Corrections. The breach hearing came on before the same judge. By that time (six months after the original plea hearing), NS had been remanded in custody on other charges and it was common ground that the CCO could not be maintained.

The judge resentenced NS to an aggregate sentence of 26 months’ imprisonment on the armed robbery and theft charges. A non-parole period of 18 months was…

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 Sinclair v The Queen

Details

AGLC: Sinclair v The Queen [2021] VSCA 144
Case: [2021] VSCA 144
Decision Date: 31 May 2021

CaseChat Overview and Summary

The case of Sinclair v The Queen involved an appeal against the sentencing of the applicant, who was convicted of theft and armed robbery. The applicant was initially sentenced to nine months’ imprisonment and a 12-month community correction order (CCO) by the County Court. Upon breaching the CCO, the applicant was resentenced to a total effective sentence of 26 months’ imprisonment with an 18-month non-parole period by the Supreme Court. The applicant argued that the disparity between the sentences imposed on him and his co-offenders was unjust and that the trial judge erred in imposing an aggregate sentence.

The key legal issues before the court were whether the judge was correct in imposing an aggregate sentence, and if the differential in sentencing between the applicant and his co-offenders was reasonably open. The court considered the principles of parity in sentencing and the impact of the applicant's background, including his age at the time of offending and his Aboriginal heritage, on the sentencing process.

The court found that the trial judge did not adequately consider the differences in seriousness between the offences committed by the applicant and his co-offenders. The court noted that the Crown conceded that the offences were significantly different in seriousness and that imposing an aggregate sentence was not reasonably open in the circumstances. The court held that the sentencing judge erred in imposing an aggregate sentence and allowed the appeal. The applicant was resentenced to a total effective sentence of 15 months’ imprisonment with nine months non-parole.

In light of the court's decision, the applicant's sentence was reduced, taking into account the appropriate principles of sentencing and the disparities in the sentences imposed on the co-offenders. The court's decision was influenced by the cases of Stevens v The Queen [2020] VSCA 170 and DPP v Frewstal Pty Ltd (2015) 47 VR 660, as well as the relevant provisions of the Sentencing Act 1991.

Orders