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Younger v The Queen

Younger v The Queen

Case [2017] VSCA 199 26 May 2017

Appeal

Sentencing

Community Correction Order

Manifestly Excessive Sentence

Criminal Law

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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…

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 Younger v The Queen

Details

AGLC: Younger v The Queen [2017] VSCA 199
Case: [2017] VSCA 199
Decision Date: 26 May 2017

CaseChat Overview and Summary

In Younger v The Queen, the appellant, Younger, appealed against his sentence for robbery. The case was heard by the Court of Appeal of Victoria. The primary issue for the court was whether the appellant's sentence of three years' imprisonment, with a non-parole period of two years, was manifestly excessive. Additionally, the court examined whether Younger was improperly influenced when consenting to a community correction order (CCO), and if the new statutory limit of one year for imprisonment under a CCO affected the sentence.

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