CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking in commercial quantity of drug of dependence – Category 2 offence – Total effective sentence 1 year’s imprisonment with 30 month CCO – Whether manifestly inadequate – Whether open to impose combination sentence – Legislative hurdle for non-custodial order not met – Sentence not authorised by law – Combination sentence otherwise appropriate – Need for reconsideration of stringency of hurdle – Appeal allowed – Resentenced to 3 years’ imprisonment with non-parole period of 18 months – Sentencing Act1991 ss 5(2H)(e), (2HC), (2HI).
CRIMINAL LAW – Appeal – Sentence – Sentencing principles – Totality – Where offender already serving sentence – Offending breached parole – Parole cancelled – Required to serve remainder of head sentence for prior offending – Whether judge erred in application of totality principle – Consideration of total period of custody required – No error – Postiglione v The Queen (1997) 189 CLR 295 applied – McCartney v The Queen (2012) 38 VR 1, Waugh v The Queen (2013) 38 VR 66 overruled – Sentencing Act 1991 s 16(3B).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr C B Boyce QC with Ms J Wang
Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent
Mr T Kassimatis QC with Ms J Willard
Papa Hughes Lawyers
MAXWELL P PRIEST JA McLEISH JA T FORREST JA WALKER JA:
Summary
This appeal by the Director of Public Prosecutions raises a point of general importance about the application of the principle of totality in a particular class of case. The cases in question are those where the offending before the sentencing court breached the parole which the offender was undergoing at the time, resulting in a cancellation of parole and a return to custody.
In order to explain the point at issue, we should first define some terms. This is best done by reference to the typical sequence of events in such a case, as follows:
(1)A person (A) commits offences for which he/she receives a head sentence with a non-parole period.
(2)Having served the non-parole period, A is released on parole.
(3)While on parole, A commits further offences, the commission of which constitutes a breach of parole.
(4)The Parole Board cancels A’s parole, as a result of which A is returned to custody to serve (some or all of) the balance of the sentence.
In what follows, we will refer to the first set of offences in this sequence as ‘the prior offending’ and the sentence imposed for those offences as ‘the original sentence’. The period between the end of the non-parole period and the expiry…
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
Director of Public Prosecutions v Bowen [2021] VSCA 355
Case
[2021] VSCA 355
Decision Date
CaseChat Overview and Summary
In the case of Director of Public Prosecutions v Bowen, the appellant, Bowen, appealed against his sentence in the County Court of Victoria, which was subsequently heard in the Court of Appeal. Bowen was convicted of trafficking in a commercial quantity of a drug of dependence, a category 2 offence under the Sentencing Act 1991. The County Court imposed a total effective sentence of one year’s imprisonment with a 30-month community correction order (CCO). The Crown appealed the sentence, arguing it was manifestly inadequate, and the Court of Appeal had to determine whether the sentence was authorised by law and whether a combination sentence was appropriate.
The primary legal issues in this case were whether the sentence imposed by the County Court was manifestly inadequate and whether the Court of Appeal was open to impose a combination sentence. The Court of Appeal considered whether the legislative hurdle for a non-custodial order was met and if the combination sentence was otherwise appropriate. The court also examined the need to reconsider the stringency of the hurdle. The Court of Appeal concluded that the sentence was not authorised by law due to the unmet legislative hurdle for a non-custodial order, and the combination sentence was appropriate. Therefore, the appeal was allowed, and Bowen was resentenced to three years’ imprisonment with a non-parole period of 18 months.
In the second aspect of the appeal, Bowen argued that the County Court judge erred in applying the totality principle. The County Court had considered the total period of custody required, taking into account Bowen’s prior offending for which he was already serving a sentence. Bowen’s parole was breached, and he was required to serve the remainder of his head sentence for the prior offending. The Court of Appeal held that there was no error in the judge’s application of the totality principle. The court applied the principles set out in Postiglione v The Queen, overruling the decisions in McCartney v The Queen and Waugh v The Queen. Consequently, the Court of Appeal upheld the County Court’s consideration of the total period of custody required.
The final orders of the Court of Appeal were to allow the Crown’s appeal, set aside the original sentence, and resentence Bowen to three years’ imprisonment with a non-parole period of 18 months.