Court of Appeal (Vic)|2013-10-07|Before: Coghlan JA, Maxwell P

The applicant is young and this may well be the last chance he has to show that, if he becomes drug free, he can have a more rewarding life in the future to the benefit of both himself and the community. The sentence I propose takes into account the fact that the head sentence and non-parole period must reflect the seriousness of the offending. I propose a sentence in which the non-parole period is reduced by slightly more than the head sentence. I would re-sentence the applicant as follows.

Possessing an imitation firearm [Control of Weapons Act 1990 s 5AB(2)]

2 years or 240 penalty units [Control of Weapons Act 1990 s 5AB(2)]

Armed robbery [Crimes Act 1958 s 75A(1)]

Attempted theft [Crimes Act 1958 ss 74(1) and s 321M]

Damaging property [Crimes Act 1958 s 197(1)]

Attempted armed robbery [Crimes Act 1958 ss 75A(1) and s 321M]

20 years [Crimes Act 1958 ss 75A(2) and 321P]

A total effective sentence of 7 years 5 months' imprisonment with a non parole period of 5 years.

41 I agree. I would only add this. In my opinion, counsel are to be commended for the clarity and succinctness of their oral submissions. I also agree with what Coghlan JA has said about the Crown's concession. It was, in my opinion, entirely appropriate and of considerable assistance to the Court.

42 I agree, for the reasons given by Coghlan JA, that the application for leave to appeal ought be granted and the appeal allowed.

43 I also wish specifically to associate myself with the further remarks falling from the learned presiding judge.

[3] With whom Coghlan and Macaulay AJJA agreed.

[4] (2011) A Crim R 369, 388 [61]-[62] (citations omitted).

[5] R v Stevens [2009] VSCA 81.

[6] See R v Newman & Turnbull (1997) 1 VR 146.

Osmond v The Queen [2013] VSCA 285 (7 October 2013)

CRIMINAL LAW - Appeal - Sentence - Armed robbery, attempted armed robbery, theft, common law assault, damaging property and possessing imitation firearm - Total effective sentence of 6 years 2 months' imprisonment - Non-parole period of 4 years - Sentencing judge erred in ordering the non-parole period to commence after the unexpired portion of a prior sentence - Whether judge erred in the application of the principle of totality - Youthful offender - Real risk of institutionalisation - Leave to appeal granted - Appeal allowed - Re-sentenced to 5 years 8 months' imprisonment with a non-parole period of 3 years 3 months - Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 applied - Sentencing Act 1991, ss 15, 17.

Osmond v The Queen [2013] VSCA 285

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Osmond v The Queen [2013] VSCA 285 (7 October 2013)