R v Contin (Unreported, County Court of Victoria, Judge Montgomery, 18 November 2011)
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CRIMINAL LAW — Appeal against sentence — Pleas of guilty to one charge of burglary, one charge of theft, two charges of kidnapping and one charge of robbery — Offences committed on 8 February 2008 — Two female victims, one elderly — Small amount of cash stolen — Total effective sentence of eight years’ imprisonment with non-parole period of five years and six months — Offences committed whilst appellant on parole with respect to sentence imposed in 2003 for similar offending—Previously sentenced in May 2009 to four years and two months’ imprisonment with non-parole period of two years and ten months for offences of same general character committed on 23 January and 16 February 2008 — Parole for 2003 offences cancelled in May 2010 — Approximately two years and six months of 2003 sentence required to be served, as well as sentences imposed in May 2009 — Whether sentence of eight years’ imprisonment with non-parole period of five years and six months offended principle of totality — Appeal allowed — Appellant resentenced — New single non-parole period fixed — Sentencing Act 1991 s 16(3B).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr V G Peters
Mr G Thomas
For the Crown
Mr P B Kidd SC
Mr C Hyland, Solicitor for Public Prosecutions
BUCHANAN JA:
I have had the considerable advantage of reading the draft reasons prepared by Weinberg JA. I agree that the appeal should be allowed for the reasons stated by Weinberg JA and that the appellant should be resentenced as his Honour proposes.
WEINBERG JA:
The appellant pleaded guilty in the County Court at Melbourne to one charge of burglary (charge 1), one charge of theft (charge 2), two charges of kidnapping (charges 3 and 4), and one charge of robbery (charge 5). On 18 November 2011, he was sentenced, by Judge Montgomery, as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Burglary [Crimes Act (Vic) 1958 s 76(1)]
10 years
2 years
1 year
2
Theft [Crimes Act (Vic) 1958 s 72]
10 years
1 year
3
Kidnapping [Common law] [Crimes Act (Vic) 1958 s 320]
25 years
3 years
1 year
4
Kidnapping [Common law] [Crimes Act (Vic) 1958 s 320]
25 years
3 years
1 year
5
Robbery [Crimes Act (Vic) 1958 s 75(1)]
15 years
5 years
Base
Total Effective Sentence:
8 years’ imprisonment
Non-Parole Period:
5 years and 6 months
Pre-sentence Detention Declared:
Nil
s 6AAA Statement:
10 years’ imprisonment with a non-parole period of 8 years’ imprisonment
The offences in question were all…
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
AGLC
Contin v The Queen [2012] VSCA 247
Case
[2012] VSCA 247
Decision Date
CaseChat Overview and Summary
Contin v The Queen involves an appeal against sentence where the appellant pleaded guilty to one count of burglary, one count of theft, two counts of kidnapping, and one count of robbery. The crimes were committed on 8 February 2008, with two female victims, one of whom was elderly. The appellant was already on parole at the time of the crimes, having been sentenced in 2003 for similar offenses. In May 2009, the appellant was sentenced to four years and two months' imprisonment with a non-parole period of two years and ten months for offenses of a similar nature committed on 23 January and 16 February 2008. The parole for the 2003 offenses was cancelled in May 2010, and the appellant was required to serve approximately two years and six months of the 2003 sentence, as well as the sentences imposed in May 2009.
The primary legal issue in this appeal was whether the sentence of eight years' imprisonment with a non-parole period of five years and six months contravened the principle of totality. This principle ensures that the cumulative effect of multiple sentences does not exceed what would have been imposed for all offenses committed as a single act. The appellant argued that the cumulative effect of the sentences resulted in an excessive punishment. The court had to consider the totality of the sentences, the nature of the offenses, and the appellant's history of similar offending.
The court found that the cumulative effect of the sentences indeed contravened the principle of totality. The total effective sentence imposed on the appellant, taking into account all the offenses and previous sentences, was excessive. The court acknowledged the principle of totality and the need to ensure that the cumulative effect of multiple sentences does not unduly punish the offender. Consequently, the appeal was allowed, and the appellant was resentenced. The court fixed a new single non-parole period, aligning with the Sentencing Act 1991 section 16(3B). This decision aimed to correct the cumulative effect and ensure that the overall sentence was just and proportionate to the offenses committed.