Sonnet v The Queen - [2013] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0219

SEAN SONNET
	Applicant
v
THE QUEEN	Respondent

---

JUDGE:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 January 2013
DATE OF JUDGMENT:	17 January 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 2
JUDGMENT APPEALED FROM:	R v Sonnet [2012] VSC 106 (Lasry J)

- - -

CRIMINAL LAW – Appeal – Sentence – Conspiracy to murder – Extent of implementation of conspiracy – Whether relevant to gravity of offence – Whether factual findings departed from Crown opening – Whether breach of natural justice – Immaterial factual error – Leave to appeal refused – No point of principle.

- - -

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Lethbridges
For the Crown	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

The applicant pleaded guilty to one count of conspiracy to murder. The offence carries a maximum penalty of life imprisonment. On 23 March 2012, the applicant was sentenced by Lasry J to 10 years and 6 months’ imprisonment. A non‑parole period of 7 years and 6 months was fixed.

He now seeks leave to appeal against sentence. For reasons which follow, I consider that leave to appeal must be refused.

As counsel acknowledged, the grounds of appeal are confined in scope. They concern one aspect of the factual basis on which the judge imposed sentence. It is said for the applicant that the judge fell into error by sentencing him on the basis that:

(a)he had identified the target and was walking towards him to shoot him;
(b)he exited his car and approached the proposed target; and
(c)he was on the verge of shooting a person he thought to be the target when he was arrested.

Alternatively, it is said, those findings constituted a departure from the account of the circumstances contained in the Crown opening. The judge ought to have given defence counsel notice of any intention to depart from the facts as stated in the Crown opening, and an opportunity to make submissions on whether those findings should be made.

According to the Crown opening, the applicant (together with a co‑accused) was arrested and searched near the main entrance to the Brighton Cemetery. The applicant was found to be in possession of two weapons, both of which were loaded and ready to fire. The opening continued:

The two men were there outside the cemetery wall as part of their conspiracy to kill the proposed target. It is agreed, and the prosecution accepts, that it is not able to prove the identity of the target of this conspiracy.
[The applicant] was going to shoot the target and kill him. The co‑accused was assisting with driving and they had expected to see the target and had on previous occasions visited the area near the Brighton Cemetery …

The relevant part of the Crown opening is as follows:

The two men drove in their cars towards that cemetery area at the intersection…

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 Sonnet v The Queen

Details

AGLC: Sonnet v The Queen [2013] VSCA 2
Case: [2013] VSCA 2
Decision Date: 17 January 2013

CaseChat Overview and Summary

The appellant, Sonnet, was convicted of conspiracy to murder and was sentenced to a period of imprisonment. He appealed against his sentence, arguing that the extent to which the conspiracy was implemented was relevant to the gravity of the offence and that the sentence imposed was excessive. The Crown submitted that the trial judge had not erred in his approach to sentencing and that the sentence was appropriate. The court was required to determine whether the trial judge had erred in law in his consideration of the extent of implementation of the conspiracy and whether any such error was material.

The court found that the trial judge had not erred in law in his consideration of the extent of implementation of the conspiracy. The court noted that the trial judge had considered the relevant factors in determining the gravity of the offence and had not placed undue weight on the extent of implementation. The court also found that there was no breach of natural justice or immaterial factual error in the trial judge's approach. The court held that the sentence imposed was not excessive and that there was no basis for the appellant to appeal against his sentence.

The court found that the appeal was not founded on any point of principle of general public importance and refused leave to appeal. The court noted that the trial judge had exercised his discretion in determining the sentence and that there was no basis for the appellant to challenge the sentence on appeal. The court held that the sentence was appropriate and that there was no need for the appellant to appeal against it.

No orders were made.

Orders