Caldwell & Caldwell v The Queen - [2014] VSCA 274

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0062
KELLY EDWARD CALDWELL	Applicant
v
THE QUEEN	Respondent
S APCR 2014 0086
JASON WILLIAM CALDWELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2014
DATE OF JUDGMENT:	6 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 274
JUDGMENT APPEALED FROM:	DPP v Caldwell (Unreported, County Court of Victoria, Judge Montgomery, 12 March 2014 (date of conviction), 20 March 2014 (date of sentence – Kelly Edward Caldwell), 16 April 2014 (date of sentence – Jason William Caldwell))

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CRIMINAL LAW – Sentence – Applications for leave to appeal against sentence – Criminal damage – Theft – Obtaining property by deception – Burglary – Arson – Attempted theft – Parity – Whether sentences manifestly excessive – Delay – Rehabilitation – Whether principles in R v Verdins (2007) 16 VR 269 applicable.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Kelly Edward Caldwell	Mr S P Kennedy	Lewenberg & Lewenberg
For the Applicant, Jason William Caldwell	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr R A Elston QC with Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA

BEACH JA:

On 12 March 2014, following a 30 day trial in the County Court, the applicants Kelly Edward Caldwell and Jason William Caldwell were found guilty of a number of offences alleged to have been committed in 2009 and 2010. Kelly Caldwell was found guilty of 39 offences (three charges of criminal damage, eight charges of theft, 21 charges of obtaining property by deception, one charge of arson, five charges of burglary and one charge of attempted theft). Jason Caldwell was found guilty of 36 offences (two charges of criminal damage, six charges of theft, 21 charges of obtaining property by deception, one charge of arson, five charges of burglary and one charge of attempted theft).

Following a plea on 19 March 2014, Kelly Caldwell was sentenced on 20 March 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Criminal damage [Crimes Act 1958 (Vic) s 197(1)] 10 years [Crimes Act 1958 (Vic) s 197(1)] 6 months

2 Theft [Crimes Act 1958 (Vic) s 74(1)] 10 years [Crimes Act 1958 (Vic) s 74(1)] 6 months 2 months

6 Criminal damage 10 years 6 months

7 Theft 10 years 24 months 6 months

8 Arson [Crimes Act 1958 (Vic) s 197(6)] 15 years [Crimes Act 1958 (Vic) s 197(7)] 30 months Base

9 Obtain property by deception [Crimes Act 1958 (Vic) s 81(1)] 10 years [Crimes Act 1958 (Vic) s 81(1)] 18 months 6 months

11 Obtain property by deception 10 years 18 months

12 Obtain property by deception 10 years 18 months

13 Obtain property by deception 10 years 18 months

14 Obtain property by deception 10 years 18 months

15 Obtain property by deception 10 years 18 months

16 Obtain property by deception 10 years

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: [2014] VSCA 274
Decision Date: 6 November 2014

CaseChat Overview and Summary

The appellants, Caldwell and Caldwell, were convicted of various criminal offences including burglary, theft, and criminal damage. They appealed against their sentences, arguing that they were manifestly excessive. The Court of Appeal in Victoria heard their application for leave to appeal against their sentences. The appellants contended that the trial judge failed to properly consider the principles of parity, delay, and rehabilitation when imposing their sentences.

The central legal issue before the court was whether the sentences imposed were manifestly excessive and whether the trial judge failed to properly consider the principles of parity, delay, and rehabilitation. The appellants argued that the sentences were manifestly excessive given the nature and circumstances of the offences and the appellants' backgrounds. They also argued that the trial judge did not adequately consider the principles of parity, delay, and rehabilitation as outlined in R v Verdins (2007) 16 VR 269.

The Court of Appeal considered the principles of parity, delay, and rehabilitation in assessing the appellants' submissions. The court found that while the sentences were severe, they were not manifestly excessive given the nature and circumstances of the offences and the appellants' criminal history. The court held that the trial judge had considered the principles of parity, delay, and rehabilitation and had appropriately weighed them against the seriousness of the offences. The court further found that the delay in bringing the matter to trial did not warrant a reduction in sentence and that the appellants' potential for rehabilitation had been adequately considered.

The Court of Appeal dismissed the appellants' application for leave to appeal against their sentences. The court found that the sentences imposed were not manifestly excessive and that the trial judge had appropriately considered the principles of parity, delay, and rehabilitation. No further appeal was permitted.

Orders