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Teryaki v The Queen

Teryaki v The Queen

Case [2019] VSCA 120 3 June 2019

Appeal

Sentencing

Aggravated Carjacking

Attempted Carjacking

Intellectual Impairment

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0021

HEBA TERYAKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and WEINBERG JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2019
DATE OF JUDGMENT:	3 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 120
JUDGMENT APPEALED FROM:	DPP v Teryaki [2018] VCC 1876 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Sentence – Aggravated carjacking – Theft - Attempted aggravated carjacking – Attempted carjacking – Sentence 3 years’ imprisonment – Non-parole period 2 years – Co-offender sentenced to 12 month Community Correction Order – Whether applicant’s sentence manifestly excessive – Whether undue disparity in sentences between applicant and co-offender – Whether sentencing judge erred in finding a ‘high likelihood’ that applicant would receive therapeutic services in custody that would assist in parole eligibility – Extensive criminal history – Intellectual impairment – Harmful behaviour in custody – Therapeutic treatment in custody unavailable for female offenders in applicant’s situation – R v Eliasen (1991) 53 A Crim R 391 considered – Applicant resentenced to 2 years and 3 months’ imprisonment – Non-parole period of 1 year and 9 months – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Phillips	Victoria Legal Aid
For the Respondent	Mr P Bourke	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
WEINBERG JA:

The applicant pleaded guilty in the County Court at Melbourne to charges of aggravated carjacking, theft, attempted carjacking and attempted aggravated carjacking. She was also dealt with for a series of summary offences, including unlicensed driving and committing an offence whilst on bail. She was sentenced on 16 November 2018 as follows:

Charge on Indictment Offence Maximum Sentence
Cumulation

1.
Aggravated carjacking

[s 79A Crimes Act 1958]
25 years 2 years Base

2.
Theft

[s 74 Crimes Act 1958]
10 years 6 months —

3.
Attempted carjacking

[s 79 Crimes Act 1958]

[s 321M & s 321P Crimes Act 1958]
10 years 1 year and 6 months 6 months

4.
Attempted aggravated carjacking

[s 79A Crimes Act 1958]

[s 321M & s 321P Crimes Act 1958]
20 years 2 years 6 months

Related summary charges

13.
Driving a motor vehicle when directed to stop (first offence)

[s 64A Road Safety Act 1986]
6 months or 60 penalty units 1 month —

15.
Unlicensed driving

[s 18(1)(a) Road Safety Act 1986]
6 months or 60 penalty units[1] 1 month —

16.
Commit an indictable offence whilst on bail

[s 30B Bail Act 1977]
3 months or 30 penalty units 1 month —

19.
Detainee possessing item without authority – police gaol

[s 15(4) Corrections (Police Gaols) Regulations 2015]
10 penalty units Proven and dismissed —

Total Effective Sentence: 3 years

Non-Parole Period: 2 years

Pre-sentence detention declared: 488 days

6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years.

Other relevant orders:

- Disposal order

- Driving license or permit cancelled and disqualified from obtaining a new…

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 Teryaki v The Queen

Details

AGLC: Teryaki v The Queen [2019] VSCA 120
Case: [2019] VSCA 120
Decision Date: 3 June 2019

CaseChat Overview and Summary

Teryaki appealed against the sentence imposed by the County Court, which was 3 years’ imprisonment for aggravated carjacking, theft, attempted aggravated carjacking, and attempted carjacking. The non-parole period was set at 2 years. The respondent, The Queen, argued against the appeal. The legal issues before the court were whether the sentence was manifestly excessive, if there was an undue disparity in the sentences between the applicant and her co-offender, and whether the sentencing judge erred in finding a high likelihood that the applicant would receive therapeutic services in custody that would assist in parole eligibility. The court considered the applicant's extensive criminal history, intellectual impairment, and harmful behaviour in custody.

The court found that the applicant's sentence was manifestly excessive, given her co-offender was sentenced to a 12-month community correction order. The court also found that there was an undue disparity in the sentences between the applicant and her co-offender, as the co-offender had a lesser role in the offending and had a better chance of rehabilitation outside of custody. The court further found that the sentencing judge erred in finding a high likelihood that the applicant would receive therapeutic services in custody that would assist in parole eligibility, as such services were unavailable for female offenders in the applicant's situation. The court noted that the applicant's intellectual impairment and harmful behaviour in custody made her a vulnerable person who would benefit from rehabilitation outside of custody. The court considered R v Eliasen (1991) 53 A Crim R 391, which held that a sentence should not be manifestly excessive and that there should not be an undue disparity in sentences between co-offenders.

The court allowed the appeal and resentenced the applicant to 2 years and 3 months’ imprisonment, with a non-parole period of 1 year and 9 months. The court found that this sentence was appropriate, given the applicant's extensive criminal history, intellectual impairment, and harmful behaviour in custody. The court also noted that the resentence would provide the applicant with an opportunity to receive rehabilitation outside of custody, which would assist in her parole eligibility. The final orders of the court were that the appeal be allowed, the applicant's sentence be quashed, and she be resentenced to 2 years and 3 months’ imprisonment, with a non-parole period of 1 year and 9 months.

Orders