DPP v Dickson

[2011] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0144

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

v

GEORGE ELLIOTT DICKSON

Respondent

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JUDGES	MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 January 2011
DATE OF ORDERS	24 January 2011
DATE OF JUDGMENT	10 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 222
JUDGMENT APPEALED FROM	DPP (Vic) v Dickson (Unreported, County Court of Victoria, Judge Howard, 29 March 2010 (sentence), 16 April 2010 (recall of sentence), 14 May 2010 (further recall of sentence))

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CRIMINAL LAW – Appeal – Sentence – Offences committed while on parole – Parole cancelled – 3 years and 3 months of original sentence still to be served – Applicable principles – Totality – Cumulation – R v Hunter (2006) 14 VR 336; R v Piacentino (2007) 15 VR 501 reaffirmed – R v Bradley [2010] VSCA 70 explained – Sentencing Act 1991 (Vic) ss 5(2AA)(a), 14(1), 15(1), 16(3B) – Sentencing judge acted in accordance with Crown submissions – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with	C Marshall & Associates
Mr D A Dann

MAXWELL P:

1. On this appeal, the Director of Public Prosecutions has asked the Court to revisit principles laid down in earlier decisions of the Court, concerning sentencing for offences committed while the offender was on parole for other offences.  (For ease of reference, I will refer to the offences in respect of which parole was granted as  ‘the original offences’ and to the offences which breach the parole as ‘the later offences’.) 

1. Those decisions govern the sentencing task in the case where the offender’s parole is cancelled on account of the later offences.  In that case, the principle of totality requires the court sentencing the offender for the later offences to have regard to the ‘parole sentence’, that is, so much of the head sentence imposed for the original offences as has not been served at the date of sentencing.  In the absence of exceptional circumstances, the offender will be required to serve the parole sentence cumulatively on the sentence imposed for the later offences.[1] 

   [1]Sentencing Act 1991 (Vic) s 16(3B);  DPP v Rongonui (2007) 17 VR 571 (‘Rongonui’).

1. The critical point for present purposes is that the whole of the parole sentence must be taken into account in applying the totality principle. That – so this Court has held – is the effect of s 5(2AA)(a) of the Sentencing Act 1991 (Vic) (‘Act’), which prohibits the sentencing court from considering the possibility that the Parole Board might re-release the offender on parole before he/she has served the entire parole sentence.

1. These principles were laid down in R v Hunter,[2] a case where parole had already been cancelled by the time the offender came to be sentenced for the later offences. They were subsequently affirmed by…