and Allan Rae Dalton v The Queen - [2015] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0084
ALLAN RAE DALTON	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2015
DATE OF JUDGMENT:	22 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 189
JUDGMENT APPEALED FROM:	DPP v Dalton (Unreported, County Court of Victoria, Judge Tinney, 10 December 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Theft – Using a false document – Sentenced to total effective sentence of 2 years' imprisonment (12 months to be served cumulatively upon a previous sentence of 2 years and 3 months) with previously ordered non-parole period extended by 8 months – Delay – Consequences of delay – Totality – Whether totality principle infringed – Whether order for cumulation infringed totality principle – Alleged errors not reasonably arguable – No reasonable prospect that less severe sentence or orders would be imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr R Gibson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

BEACH JA:

Introduction

On 9 December 2014, the applicant pleaded guilty in the County Court to one charge of theft and two charges of using a false document. At the time he pleaded guilty, the applicant was then serving a sentence of 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 2 months, imposed on 10 September 2014, following his conviction by a jury in respect of three other charges of theft. On 10 December 2014, the applicant was sentenced in respect of the offences to which he had pleaded guilty as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1. Theft [s 74(1) of the Crimes Act 1958] 10 years [s 74(1) of the Crimes Act 1958] 18 months Base

2. Using a false document [s 83A(2) of the Crimes Act 1958] 10 years [s 83A(2) of the Crimes Act 1958] 9 months 3 months

3. Using a false document [s 83A(2) of the Crimes Act 1958] 10 years [s 83A(2) of the Crimes Act 1958] 9 months 3 months

Total Effective Sentence: 2 years (12 months to be served cumulatively upon the sentence imposed on 14 September 2014)

New Non-parole period: 1 year 7 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: Nil

6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the Applicant had been convicted of these offences after a trial would have been 3 years and 3 months’ imprisonment (1 year and 7 months to be served cumulatively upon the sentence the Applicant was presently undergoing), with the Applicant becoming eligible for parole after serving 2 years and 6 months of that sentence.

Other relevant orders: Compensation Order to Heather Oliver in the sum of $73,087.50

Notwithstanding the submissions made by the applicant this morning as to the uncertainty…

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.

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Details

Case: [2015] VSCA 189
Decision Date: 22 July 2015

CaseChat Overview and Summary

The case of Allan Rae Dalton against The Queen involved an appeal against the sentence imposed on Dalton for theft and the use of a false document. The Court of Appeal was tasked with determining whether the sentence imposed by the lower court was appropriate, particularly in relation to the principle of totality and the order for the cumulation of sentences. The primary issue was whether the totality principle was infringed by the imposition of a cumulative sentence and the extension of the non-parole period. Additionally, the court considered whether there were any alleged errors that were reasonably arguable and whether there was a reasonable prospect of a less severe sentence being imposed.

The court held that the principles of totality and proportionality in sentencing were not infringed. It found that the cumulative sentence and the extended non-parole period were justified given the nature and circumstances of the offences and the need for general deterrence. The court also determined that there were no alleged errors that were reasonably arguable, and there was no reasonable prospect that a less severe sentence or orders would be imposed. As a result, the application for leave to appeal was refused.

In reaching its decision, the court emphasised the importance of considering the totality of a defendant's criminal conduct and the need for appropriate punishment and deterrence. It also highlighted the discretion of the sentencing court and the limited role of appellate courts in reviewing such matters. The court concluded that the sentence imposed was within the range of appropriate punishments for the offences committed and that the totality principle was not infringed by the imposition of a cumulative sentence or the extension of the non-parole period.

The final orders of the court were that the application for leave to appeal was refused, and the original sentence and orders imposed by the lower court were upheld. This decision reinforces the importance of respecting the sentencing discretion of lower courts and the limited role of appellate courts in reviewing the proportionality and totality of sentences.

Orders