Singh v The King - [2023] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0175

ADITYA SINGH	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF JUDGMENT:	14 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 17
JUDGMENT APPEALED FROM:	[2022] VCC 1808 (Judge Smallwood)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery, intentionally damage property, commit indictable offence on bail – Applicant sentenced to two years’ imprisonment with a non-parole period of 15 months’ – Guilty plea – Youth - Early plea – Full admissions on arrest – Whether judge erred in not giving principles 5 and 6 in Verdins any weight in sentencing – Whether judge erred regarding in charactering the level of the applicant’s remorse – Whether sentence manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, s 32(1)(b).

Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269.

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Counsel
Applicant:		Mr SN Andrianakis
Respondent:		Ms A Moran
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

The applicant pleaded guilty, before a judge of the County Court, to one charge of armed robbery, one charge of intentionally damaging property and a related summary offence of committing an indictable offence while on bail.
Following a plea made on his behalf, he was sentenced to a total effective sentence of two years’ imprisonment with a non-parole period of 15 months. That sentence was constituted as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Armed robbery Crimes Act 1958, s 75A	25 years	2 years	-
2	Intentionally damage property Crimes Act 1958, s 197(1)	10 years	3 months	-
Related Summary Offences
3	Commit indictable offence on bail	3 months	Convicted and discharged	N/A
Total Effective Sentence:		2 years
Non-Parole Period:		15 months
Pre-sentence Detention Declared:		1 day
Section 6AAA Statement:		Total Effective Sentence 3 years Non Parole-Period 2 years
Other Relevant Orders: Forfeiture order in relation to a black cap, disposable mask, white gloves and wooden hammer used in the commission of the offence.

The applicant seeks leave to appeal the sentences on the following grounds:
Ground 1 – The sentencing judge erred in failing to give any weight to principles 5 and 6 in Verdins (2007) 16 VR 269.
Ground 2 – The sentencing judge erred in finding that the applicant’s remorse was somewhat problematic, despite indicating during the plea hearing that he would sentence the applicant on the basis that he was truly remorseful for his conduct.
Ground 3 – In all the circumstances the sentence imposed on charges 1 and 2, and as a result the total sentence imposed and non-parole period fixed are manifestly excessive.

Circumstances of the offending

On 15 December 2021, at 11:43 am, the applicant, who was then 19 years of age, walked to the front of a bakery in Glen Waverley.…

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 Singh v The King

Details

AGLC: Singh v The King [2023] VSCA 17
Case: [2023] VSCA 17
Decision Date: 14 February 2023

CaseChat Overview and Summary

The case of Singh v The King involved the applicant, who had pleaded guilty to armed robbery, damaging property with intent, and committing an indictable offence while on bail. The applicant was sentenced to two years' imprisonment with a non-parole period of 15 months. The applicant sought leave to appeal against the sentence, arguing that the sentencing judge had erred in not adequately considering certain principles in Verdins, had mischaracterised the level of the applicant's remorse, and that the sentence was manifestly excessive. The court considered the arguments and the relevant legal principles.

The primary legal issues for the court were whether the judge had erred in not giving sufficient weight to principles 5 and 6 from Verdins, whether the judge had correctly assessed the applicant’s level of remorse, and whether the sentence imposed was manifestly excessive. The applicant argued that the judge should have taken into account the principles from Verdins that pertain to the sentencing of young offenders who make an early guilty plea and fully admit their guilt. The applicant also contended that the judge had not accurately assessed the depth of his remorse, and that the sentence was disproportionate to the crimes committed.

The court reviewed the sentencing principles and found that the judge had appropriately considered the relevant factors, including the principles from Verdins. The court noted that the judge had provided a detailed account of the applicant's remorse and determined that it was adequately reflected in the sentence. The court concluded that the sentence was neither manifestly excessive nor inappropriate, given the seriousness of the offences and the mitigating factors presented. The application for leave to appeal was dismissed.

The final orders of the court were to refuse the applicant's application for leave to appeal against the sentence. The court upheld the original sentence of two years' imprisonment with a non-parole period of 15 months, finding no error in the sentencing process or in the assessment of the applicant's remorse.

Orders