SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2016 0201 | |
| ADAM YOUNGER | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and McLEISH JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 May 2017 |
| DATE OF ORDERS: | 26 May 2017 |
| DATE OF REASONS FOR JUDGMENT: | 11 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 199 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1321 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Robbery – Three years’ imprisonment – Non-parole period two years – Whether manifestly excessive – Plea of guilty – Evidence of rehabilitation – Sentence 4.5 times longer than Crown called for on plea – Appeal allowed.
CRIMINAL LAW – Appeal – Sentence – Sentencing judge warning to appellant as to consequences of breach of community correction order (‘CCO’) – Whether appellant improperly influenced not to consent to CCO – Need for judicial explanation of CCO before offender asked to consent – Boulton v The Queen (2014) 46 VR 308 applied.
CRIMINAL LAW – Sentencing – Power to order CCO with term of imprisonment amended ‘irrespective of when the offence was committed or the finding of guilt was made’ – New statutory limit of one year’s imprisonment – Whether Court of Appeal more confined than judge at first instance – Whether Court resentences according to law at time of initial sentence – Radenkovic v The Queen (1990) 170 CLR 623 discussed – DPP v Grech [2016] VSCA 98 distinguished – Sentencing Act 1991 s 44(1); Criminal Procedure Act 2009 ss 280‑2; Sentencing (Community Correction Order) and Other Acts Amendment Act 2016.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Patrick W Dwyer |
| For the Respondent | Ms Sally Flynn | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
McLEISH JA
CROUCHER AJA:
The appellant pleaded guilty in the County Court to one charge of robbery and was sentenced as follows:
Charge Offence Maximum penalty Sentence 1 Robbery [s 75(1) of the Crimes Act 1958] 15 years’ imprisonment 3 years’ imprisonment Total effective sentence 3 years’ imprisonment Non-parole period 2 years Pre-sentence detention 244 days S 6AAA statement 5 years’ imprisonment with a non-parole period of 3 years Other orders Disposal order; forensic sample order
The appellant sought and was granted leave to appeal against that sentence by a single judge pursuant to s 315 of the Criminal Procedure Act 2009 (‘CPA’) on the following two grounds:
(i) The sentencing hearing miscarried as a result of the learned sentencing judge influencing the appellant to not consent to a community correction order.
(ii) The head sentence imposed (3 years’ imprisonment) and the non-parole period fixed (2 years’ imprisonment) are both manifestly excessive.
On 26 May 2017, we allowed the appeal and resentenced the appellant to a term of 12 months’ imprisonment combined with a community correction order (‘CCO’) of two years. We ordered that, in addition to the mandatory conditions attached to a CCO, the appellant complete 200 hours of unpaid community work, undergo assessment and…
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- AGLC
- Younger v The Queen [2017] VSCA 199
- Case
- [2017] VSCA 199
- Decision Date
CaseChat Overview and Summary
The court found that the sentence imposed was disproportionate to the Crown's recommendation, given the appellant's guilty plea and evidence of rehabilitation. The court determined that the appellant was not adequately informed of the consequences of breaching the CCO, and that the judge did not sufficiently explain the order before asking for consent, which was in breach of the ruling in Boulton v The Queen. The court also noted that the new statutory limit for imprisonment under a CCO, introduced after the original sentencing, did not confine the Court of Appeal more than the judge at first instance, and that the Court resentenced according to the law at the time of the initial sentence, as discussed in Radenkovic v The Queen. The Court distinguished the case from DPP v Grech and applied the relevant sections of the Sentencing Act 1991, Criminal Procedure Act 2009, and Sentencing (Community Correction Order) and Other Acts Amendment Act 2016.
The court allowed the appeal, set aside the sentence, and remitted the matter to the County Court for resentencing. The court's reasoning was that the original sentence was manifestly excessive and that the appellant was improperly influenced when consenting to the CCO. The court emphasised the need for proper judicial explanation of CCOs before offenders are asked to consent, as per Boulton v The Queen, and applied the relevant statutory provisions to the resentencing process. The outcome of the case was a significant reduction in the appellant's sentence and a reminder to the courts of the importance of proper procedure in sentencing and the imposition of CCOs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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