Singh v The Queen - [2011] VSCA 333

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0329
SHELWYN SINGH	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, NEAVE JJA and JUDD AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 October 2011
DATE OF JUDGMENT	14 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 333
JUDGMENT APPEALED FROM	DPP v Singh (Unreported, County Court of Victoria, Judge Tinney, 26 August 2010)

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Criminal Law – Sentencing – Whether sentence manifestly excessive – Multiple counts of armed robbery and robbery – Appellant sentenced to a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years and six months – Offences committed whilst appellant on parole – Revocation of parole – Time to serve in effect increased to seven years and eight months with a non-parole period of five years and four months manifestly excessive – Whether judge took sufficiently into account appellant’s mental condition and prospects of rehabilitation – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis with Mr P Smallwood	Victoria Legal Aid
For the Crown	Mr P B Kidd	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an appeal against a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years and six months imposed on the appellant on pleading guilty to five charges of armed robbery, two charges of robbery and a summary offence of possession of a controlled weapon.

The individual sentences and orders for cumulation were as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Armed Robbery

25 years

3 years

Base

2

Robbery

15 years

12 months

4 months

3

Robbery

15 years

8 months

2 months

4

Armed Robbery

25 years

3 years

9 months

5

Armed Robbery

25 years

3 years

9 months

6

Armed Robbery

25 years

3 years

9 months

7

Armed Robbery

25 years

3 years

9 months

Summary offence

Possess controlled weapon

12 months

3 months

TES

6 yrs 6 mths

NPP

4 yrs 6 mths

The appellant contends that the sentence is manifestly excessive and that the sentencing judge erred in fixing the non-parole period. Both grounds are based on the appellant’s depleted mental condition at the time of the offending.

The facts of the offending

The facts of the offending are compendiously summarised in the judge’s sentencing remarks. For present purposes, it suffices to record the following.

Charge 1: At 5.30 pm on 5 September 2009 the appellant went to a pharmacy in Flinders Lane, Melbourne. There was a lone female staff member, Ms S, on duty and the appellant approached her. As a pretext to what then followed, he asked her if she could recommend something to help him quit smoking. Ms S moved away to get the appropriate product and, despite the presence of other customers in the pharmacy, the appellant went behind the service counter and was in the process of stealing a variety of prescription medications when Ms S returned.…

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 Queen

Details

AGLC: Singh v The Queen [2011] VSCA 333
Case: [2011] VSCA 333
Decision Date: 14 October 2011

CaseChat Overview and Summary

The appellant, Singh, appealed against his sentence for multiple counts of armed robbery and robbery, arguing that the sentence was manifestly excessive. Singh was sentenced to a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years and six months. The offences were committed while Singh was on parole for a previous offence. The sentence was increased to seven years and eight months with a non-parole period of five years and four months upon revocation of parole. Singh contended that the sentence was manifestly excessive and that the judge failed to sufficiently consider his mental condition and prospects of rehabilitation.

The legal issues the court had to decide were whether the sentence was manifestly excessive and whether the judge appropriately considered the appellant's mental condition and prospects of rehabilitation. The court examined the totality of the circumstances, including the nature and circumstances of the offences, the appellant's criminal history, and the need for deterrence and denunciation. The court also considered the appellant's mental health and rehabilitation prospects, as well as the principles of proportionality and parity.

The court concluded that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The court also found that the judge had appropriately considered the appellant's mental condition and prospects of rehabilitation, taking into account all relevant factors. The appeal was dismissed, and the sentence was upheld.

No further orders were made by the court.

Orders