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Till v The Queen

Till v The Queen

Case [2018] VSCA 122 11 May 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0114

JAMES TILL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, TATE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	11 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 122
JUDGMENT APPEALED FROM:	[2016] VCC 1976 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary – Armed robbery – Causing serious injury recklessly in circumstances of gross violence – Plea of guilty – Total effective sentence of 12 years’ imprisonment – Non-parole period of nine years – Whether judge erred in making adverse finding not proved beyond reasonable doubt – Whether procedural fairness denied – Whether judge erred in assessing applicant’s prospect of rehabilitation as no better than poor – Whether judge erred in failing to take into account that the sentence will be served in protective custody – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Giorgianni & Liang Lawyers
For the Respondent	No appearance	John Cain, Solicitor for Public Prosecutions

MAXWELL P
TATE JA
NIALL JA:

The applicant, James Till (‘Till’), applies for leave to appeal against the sentence imposed on him in the County Court, following a plea of guilty, on one charge of aggravated burglary, one charge of armed robbery, and one charge of causing serious injury recklessly in circumstances of gross violence.[1] All offences arose out of the one incident involving Till and a co-offender, Charles Hi (‘Hi’), bursting into the flat of a 74 year old Turkish woman and violently assaulting her, including by Till hitting her with a metal bar and waving a knife around, while yelling at her as to where she kept her money and where was the ‘ice’.
[1]DPP v Till [2016] VCC 1976 (‘Sentencing reasons’).

Till was sentenced as follows:

Charge on

Indictment
Offence Maximum Sentence Cumulation

1 Aggravated burglary [s 77(1) Crimes Act 1958] (‘CA’) 25y [s 77(2) CA] 8y Base

2 Armed robbery [s 75A(1) CA] 25y [s 75A(2) CA] 7y 1y

3 Causing serious injury recklessly in circumstances of gross violence [s 15B(1) CA] 15y [s 15B(1) CA] 7y 3y

Total Effective Sentence 12y

Non-Parole Period: 9y

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 476 days

6AAA Statement: 16y, with non-parole period of 13y

Other relevant orders: Disposal Order

Hi, who also pleaded guilty, was sentenced as follows:

Charge on

Indictment
Offence Maximum Sentence Cumulation

1 Aggravated burglary [s 77(1) CA] 25y [s 77(2) CA] 7y Base

2 Armed robbery [s 75A(1) CA] 25y [s 75A(2) CA] 6y 1y

3 Causing serious injury recklessly in circumstances of gross violence [s 15B(1) CA] 15y [s 15B(1) CA] 6y 2y

Total Effective Sentence 10y

Non-Parole Period: 7y

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: Nil

6AAA Statement: 13y,…

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 Till v The Queen

Details

AGLC: Till v The Queen [2018] VSCA 122
Case: [2018] VSCA 122
Decision Date: 11 May 2018

CaseChat Overview and Summary

The case of Till v The Queen involves the defendant, Till, who had pleaded guilty to charges of aggravated burglary, armed robbery, and causing serious injury recklessly in circumstances of gross violence. The High Court of Australia was asked to determine whether Till was entitled to leave to appeal against the sentence imposed by the lower court, which was a total effective sentence of 12 years’ imprisonment with a non-parole period of nine years. The legal issues before the court were whether the judge had erred in making an adverse finding that was not proved beyond reasonable doubt, whether procedural fairness had been denied, whether the judge had erred in assessing the applicant’s prospect of rehabilitation as no better than poor, whether the judge had failed to take into account that the sentence would be served in protective custody, and whether the sentence was manifestly excessive.

The court found that the judge had not erred in making an adverse finding that was not proved beyond reasonable doubt, as the evidence supported the finding that the applicant had been armed during the commission of the offences. The court also found that procedural fairness had not been denied, as the applicant had been given an opportunity to present evidence and arguments in mitigation of sentence. Regarding the assessment of the applicant’s prospect of rehabilitation, the court found that the judge had not erred in assessing the applicant’s prospects as no better than poor, as the evidence supported this assessment. The court also found that the judge had not failed to take into account that the sentence would be served in protective custody, as the judge had considered this factor in imposing the sentence. Finally, the court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed.

In conclusion, the High Court of Australia refused the applicant’s application for leave to appeal against the sentence imposed by the lower court. The court found that the sentence was not manifestly excessive, and that the judge had not erred in making an adverse finding that was not proved beyond reasonable doubt, denying procedural fairness, assessing the applicant’s prospect of rehabilitation as no better than poor, or failing to take into account that the sentence would be served in protective custody. The orders of the lower court were upheld.

Orders