Younan v The Queen - [2017] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0168

ANDI YOUNAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and TATE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2017
DATE OF JUDGMENT:	18 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 207
JUDGMENT APPEALED FROM:	[2016] VCC 1020 (Judge Ryan)

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CRIMINAL LAW – Sentence – Armed robbery (two charges), conspiracy to commit armed robbery (one charge) and being a prohibited person in possession of a firearm (two charges) – Total effective sentence of six years and eight months’ imprisonment – Non-parole period of four years and four months – Manifest excess – Whether judge erred in approach to conspiracy charge – Venue closed – Redirected planning to second armed robbery 15 minutes later – Risk of double punishment – Prospects of rehabilitation – Appeal allowed – Re-sentenced to a total effective sentence of five years and five months’ imprisonment – Non-parole period of three years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Farrington	Stary Norton Halphen
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
TATE JA:

The appellant pleaded guilty to two charges of armed robbery, one charge of conspiracy to commit armed robbery, and two charges of prohibited possession of a firearm. He was sentenced in the County Court on 25 July 2016 as follows:[1]
[1]DPP v Younan [2016] VCC 1020 (‘Reasons’).

Charge Offence Maximum Sentence Cumulation

1 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years’ imprisonment 12 months’ imprisonment 4 months

2 Armed robbery [s 75A(1) Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 18 months

3 Conspiracy to commit armed robbery [ss 321(1) and 75A(1) Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 18 months

4 Armed robbery [s 75A(1) Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment Base ^[[2]^]

5 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years’ imprisonment 12 months’ imprisonment 4 months

Total effective sentence 6 years and 8 months’ imprisonment

Non-parole period 4 years and 4 months

Pre-sentence detention declared 724 days

6AAA statement: 9 years and 6 months’ imprisonment with a non-parole period of 6 years
[2]The table is prepared in accordance with the Record of Orders of the County Court. The submissions of both Younan and the Crown mistakenly treated the sentence on charge 2 as the Base. The mistake is not material.

The appellant relies on two grounds of appeal:

(1) The judge erred in that:
(a) the individual sentences imposed are manifestly excessive;
(b)the orders for cumulation resulted in a sentence that is manifestly excessive;
(c)the total effective sentence of 6 years and 8 months’ imprisonment is manifestly excessive;
(d)the non-parole period of 4 years and 4 months is manifestly excessive.

(2) The learned sentencing judge erred in accepting that the applicant was a high risk of general reoffending, and…

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 Younan v The Queen

Details

AGLC: Andi Younan v The Queen [2017] VSCA 207
Case: [2017] VSCA 207
Decision Date: 18 August 2017

CaseChat Overview and Summary

In the case of Younan v The Queen, the appellant, Younan, was convicted of multiple serious offences including armed robbery, conspiracy to commit armed robbery, and being a prohibited person in possession of a firearm. The matter came before the court for the purpose of sentencing, where the appellant was sentenced to a total effective term of six years and eight months' imprisonment, with a non-parole period of four years and four months. The central issue in this appeal was whether the sentencing judge erred in their approach to the conspiracy charge, which ultimately led to an overall sentence deemed manifestly excessive.

The court had to determine whether the judge's consideration of the conspiracy charge was appropriate, given that the planning for the second armed robbery was redirected just 15 minutes after the venue closed. Additionally, the court needed to assess the risk of double punishment for the conspiracy charge and consider the prospects of rehabilitation in light of the appellant's background and potential for reform.

The court found that the judge did indeed err in their approach to the conspiracy charge, leading to an overall sentence that was manifestly excessive. The court held that the risk of double punishment and the prospects of rehabilitation were not adequately weighed. As a result, the appeal was allowed, and the appellant was re-sentenced to a total effective term of five years and five months' imprisonment, with a non-parole period of three years and six months.

Orders