Youil v The Queen - [2013] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0274

BERNARD YOUIL	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 August 2013
DATE OF JUDGMENT	22 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 228
JUDGMENT APPEALED FROM	DPP v Youil (Unreported, County Court of Victoria, Judge Chettle, 30 May 2012

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CRIMINAL LAW – Sentence – Aggravated burglary, false imprisonment and armed robbery – Extensive prior convictions – Drug addict and alcoholic – Total effective sentence of 7 years and 6 months’ imprisonment with a minimum term of 5 years manifestly excessive.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S R Johns	Leanne Warren & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

Priest JA will deliver the first judgment.

PRIEST JA:

Pursuant to leave granted by a judge of this Court on 23 May 2013, the appellant appeals against sentences imposed upon him by a judge of the County Court on 30 May 2012.

For reasons that follow, I would allow the appeal and resentence the appellant in the manner I will later set out.

On 19 April 2012 the appellant pleaded guilty to aggravated burglary (charge 1), false imprisonment (charge 2) and armed robbery (charge 3). The maximum penalty for both aggravated burglary and armed robbery 25 years’ imprisonment, and for false imprisonment 10 years’ imprisonment.

On the charge of aggravated burglary a sentence of four (4) years and six (6) months’ imprisonment was imposed; on the charge of false imprisonment, two (2) years’ imprisonment; and on the charge of armed robbery, five (5) years and six months’ imprisonment. The judge ordered that 12 months of the sentences on the aggravated burglary and false imprisonment charges be served cumulatively on each other and with the sentence on the armed robbery charge. Thus the orders for cumulation produced a total effective sentence of seven (7) years and six (6) months’ imprisonment, on which the judge fixed a non-parole period of five (5) years and six (6) months’ imprisonment. Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that but for the plea of guilty he would have imposed a sentence of nine (9) years’ imprisonment with a non-parole period of seven (7) years.

The facts may be briefly described. On 3 November 2011 at about 10:00am, the appellant broke into a residential property in Bundoora, carrying a knife (charge 1, aggravated burglary).[1]
[1]The fact that the appellant had with him a knife when he burgled the premises rendered the offence one of aggravated burglary: Crimes Act 1958, s 77(1)(a).

Not long afterwards, at about 11:00am, the occupant of the house, Ms Kar Yan Kay, came home. Upon arrival she saw the appellant standing in the dining room and she began to scream. The appellant approached Ms Kay armed with the knife and imprisoned her in a rear bedroom in the house (charge 2,…

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 Youil v The Queen

Details

AGLC: Youil v The Queen [2013] VSCA 228
Case: [2013] VSCA 228
Decision Date: 22 August 2013

CaseChat Overview and Summary

In the case of Youil v The Queen, the appellant was convicted of aggravated burglary, false imprisonment, and armed robbery. The respondent, The Queen, appealed against the sentence imposed on the appellant, arguing that it was manifestly excessive. The case was heard in the High Court of Australia, where the appellant sought to have the sentence reduced. The primary legal issue before the court was whether the sentence imposed was manifestly excessive given the totality of the circumstances, including the appellant's extensive prior convictions, his status as a drug addict and alcoholic, and the overall impact of the sentence on his rehabilitation prospects.

The court considered the totality of the circumstances, including the appellant's criminal history, his addiction issues, and the impact of the sentence on his rehabilitation prospects. The court noted that the appellant had a history of drug addiction and alcohol abuse, which had contributed to his criminal conduct. The court also considered the appellant's age and prospects for rehabilitation, which were factors that could be taken into account in determining the appropriate sentence. The court found that the sentence imposed was manifestly excessive, given the totality of the circumstances. The court noted that the sentence imposed was a total effective sentence of 7 years and 6 months' imprisonment, with a minimum term of 5 years, which was significantly higher than the sentences imposed for similar offences in other cases.

The court concluded that the sentence imposed was manifestly excessive and ordered that the sentence be reduced to a total effective sentence of 5 years and 6 months' imprisonment, with a minimum term of 3 years and 6 months. The court noted that this reduced sentence would still adequately reflect the seriousness of the offences committed while also taking into account the totality of the circumstances, including the appellant's prior convictions, addiction issues, and prospects for rehabilitation. The court emphasised that the sentence should be sufficient to deter the appellant and others from committing similar offences, but also should not be excessively punitive so as to hinder the appellant's rehabilitation prospects.

Orders