DPP v Alsop

[2010] VSCA 325

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS	S APCR 2009 0664
	Appellant
v
LUKE CLAYTON ALSOP	Respondent

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JUDGES:	REDLICH and HANSEN JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2010
DATE OF JUDGMENT:	17 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 325
JUDGMENT APPEALED FROM:	[2009] VCC 0503 (Judge White)

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CRIMINAL LAW – Crown appeal – Sentence – Four counts of aggravated burglary – Sentence of two years’ imprisonment on each count – DPP v Fedi El Hajje [2009] VSCA 160 considered – Manifest inadequacy – Parole cancelled by Queensland Parole Board – Corrective Services Act2006 (Qld) s 209 – Parole sentence not taken into account – Principle of totality requiring moderation of sentences – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC	Balmer & Associates Pty

REDLICH JA:

1. The respondent pleaded guilty in the County Court to four counts of aggravated burglary and three counts of theft.  He was sentenced on 15 May 2009 to two years' imprisonment on each of the counts of aggravated burglary, being counts 1, 3, 5 and 7, and six months' imprisonment on each of the counts of theft (counts 2, 4 and 6). 

1. The sentencing judge directed that three months of the sentence imposed on each of counts 3 and 5, six months of the sentence imposed on count 7 and two months of the sentence imposed on each of counts 2, 4 and 6 be served cumulatively upon the sentence imposed on count 1 and upon each other, resulting in a total effective sentence of three years and six months' imprisonment.  A non parole period of two years and three months' imprisonment was fixed.

1. The Director appeals against the individual sentences, the total effective sentence and the non parole period on the ground that all were manifestly inadequate as the sentencing judge:

(a)   failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b)   failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(c)   failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d)     failed to sufficiently protect the community from the offender;

(e)   failed to have sufficient regard to the maximum penalty prescribed for the offences;

(f)    failed to have sufficient regard to the nature and gravity of the offences;

(g)   failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offences;

(h)   failed to have sufficient regard to the impact of the offences on the victims;

(i)    failed to have sufficient regard to the offender’s extensive prior history for similar offending;

(j)    failed to have sufficient regard to aggravating features of the offending, and in particular-

·that the offences occurred whilst…