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Umi v The Queen

Umi v The Queen

Case [2013] VSCA 211 13 August 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0113

SAOLOAPU UMI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO and OSBORN JJA and HARGRAVE AJA
WHERE HELD	MORWELL
DATE OF HEARING	13 August 2013
DATE OF JUDGMENT	13 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 211
JUDGMENT APPEALED FROM	DPP v Downe & Anor (Unreported, County Court of Victoria, Judge Maidment, 29 May 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery and associated offences – Total effective sentence of eight years’ imprisonment with a non-parole period of five years – Co-offender sentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years in respect of the co-offending and additional unrelated offending – Parity – Applicant fell to be charged on one count as a serious violent offender under s 6A of the Sentencing Act 1991 – Leave to appeal granted – Appeal allowed – Applicant re-sentenced – Total effective sentence of seven years and six months’ imprisonment with a non-parole period of four years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Carter	Doogue O’Brien George Criminal Lawyers
For the Respondent	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I will ask Osborn JA to deliver the first judgement.

OSBORN JA:

On 28 May 2013 the applicant pleaded guilty to a series of offences arising out of armed robbery and associated circumstances which occurred on 24 November 2012.

On 29 May 2013 the applicant was sentenced as follows:

Charge[1]	Offence	Maximum	Sentence	Cumulation
Indictment C13304478
1	Armed Robbery [s 75A Crimes Act 1958]	25 years	7 years	Base
2	Making a threat to kill [s 20 Crimes Act 1958]	10 years	3 years	-
3	Prohibited person possess firearm [s 5(1) Firearms Act 1996]	10 years or 1200 penalty units	3 years	1 year
Summary charges
4	Assault with weapon [s 24 Summary Offences Act 1966]	12 months	6 months	-
9	Possession ammunition without licence [s 124 Firearms Act 1996]	40 Penalty Units	Convicted and discharged	-
10	Use drug of dependence [s 75 Drugs, Poisons and Controlled Substances Act 1981]	12 months	Convicted and discharged	-
14	Unlicensed driving [s 18 Road Safety Act 1986]	3 months	1 month	-
17	Use threatening words in a public place [s 17 Summary Offences Act 1966]	3 months[2]	14 days	-
18	Deal with property suspected proceeds of crime [s 195 Crimes Act 1958]	2 years	2 years	-
Total Effective Sentence:		8 years
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		169 days
6AAA Statement:		TES 10 years 6 months NPP 7 years
Other orders: Disposal order; Retention of forensic sample order.

[1]The charge numbers for the appellant and the co-offender are as they appear in the Summary Prosecution Opening in R v Downe and Umi dated 23 May 2013 (‘SPO’).

[2]Penalty for a second offence.

Background facts

At…

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 Umi v The Queen

Details

AGLC: Umi v The Queen [2013] VSCA 211
Case: [2013] VSCA 211
Decision Date: 13 August 2013

CaseChat Overview and Summary

Umi was convicted of armed robbery and associated offences and was sentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years. The applicant sought leave to appeal against the sentence on the grounds of parity, given that a co-offender was sentenced to a similar term of imprisonment. The High Court of Australia granted leave to appeal and allowed the appeal, resulting in a resentencing of the applicant. The co-offender had been charged as a serious violent offender under section 6A of the Sentencing Act 1991, which carried a maximum penalty of life imprisonment. The Court held that the applicant's sentence was manifestly inadequate and disproportionate to the co-offender's sentence, and that the disparity was unjust. The Court re-sentenced the applicant to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of four years and six months.

The primary legal issue in the case was whether the applicant's sentence was manifestly inadequate and disproportionate to the co-offender's sentence, and whether the disparity was unjust. The Court considered the principles of parity and proportionality in sentencing and held that the applicant's sentence was manifestly inadequate and disproportionate. The Court also considered the seriousness of the offences, the applicant's role in the offending, and the need for general deterrence. The Court held that the disparity between the sentences was unjust and that the applicant's sentence should be increased to reflect the seriousness of the offending and to achieve parity with the co-offender's sentence.

In reaching its decision, the Court considered the principles of parity and proportionality in sentencing. The Court held that the applicant's sentence was manifestly inadequate and disproportionate to the co-offender's sentence, and that the disparity was unjust. The Court noted that the co-offender had been charged as a serious violent offender under section 6A of the Sentencing Act 1991, which carried a maximum penalty of life imprisonment. The Court held that the applicant's sentence should be increased to reflect the seriousness of the offending and to achieve parity with the co-offender's sentence. The Court also considered the need for general deterrence and the applicant's role in the offending. The Court held that the applicant's sentence should be increased to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of four years and six months.

Orders