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DPP v Felton

DPP v Felton

Case [2007] VSCA 65 18 April 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 321 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v
ABBE JANE FELTON

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JUDGES:	BUCHANAN and EAMES JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2007
DATE OF JUDGMENT:	18 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 65	1st Revision 18 April 2007

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CRIMINAL LAW – Sentencing – Appeal by Director of Public Prosecutions – Aggregate sentence – Whether aggregate sentence should be imposed in respect of “rolled up” counts – Concurrency and cumulation in relation to aggregate sentences – Sentencing Act 1991 s 9(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson, QC with Mr S P Zebrowski	Balmer & Assoc

BUCHANAN JA:

I agree with Kellam AJA.

In cases where there are a limited number of counts, generally it will not be necessary to impose an aggregate sentence in order “to more clearly explain to the community the total sentence” that the Court is imposing. In fact, the imposition of an aggregate sentence may obscure how the sentencing judge has arrived at individual sentences and the manner in which those sentences have contributed to the total effective sentence. On the other hand, where there is such a large number of counts that the application of the normal principles governing cumulation and concurrency would produce an inappropriate total effective sentence[1], an aggregate sentence may be more readily understood. In such a case, in my opinion, it is still necessary for the sentencing judge to identify, at least in general terms[2], the components of the sentence, that is, the individual terms and the extent of concurrency and cumulation he has employed, in order that the public and appellate courts can discern how the sentencing judge has viewed the gravity of the offences committed by the accused.

[1]See DPP v Grabovac [1998] 1 VR 664 at 676.7 per Ormiston JA. By limiting the application of s 9 of the Sentencing Act 1991 to offences founded on the same facts or forming or being part of a series of offences of a similar character, the legislature appears to have contemplated the use of the section in cases where there would ordinarily be a significant degree of concurrency.

[2]R v Symonds [1999] SASR 217 at [21]-[22], [24] per Doyle CJ; R v Waugh (2005) 93 SASR 274 at 284 per White J.

EAMES JA:

For the reasons given by Kellam AJA I agree that the appeal should be allowed and the respondent should be re-sentenced as his Honour proposes. I also endorse the helpful analysis of his Honour as to the circumstances in which it is appropriate to impose an aggregate sentence for indictable offences.

KELLAM AJA:

This is an appeal brought by the Director of Public Prosecutions pursuant to s 567A of the Crimes Act 1958. The appeal is brought against sentences imposed by the County Court at Melbourne on 15…

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.

Continue reading DPP v Felton

Details

AGLC: DPP v Felton [2007] VSCA 65
Case: [2007] VSCA 65
Decision Date: 18 April 2007

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Felton came before the court, where the Director of Public Prosecutions appealed the sentence given to Felton for various offences. Felton had been convicted on multiple counts, and the court below had imposed a series of concurrent sentences, but the Director of Public Prosecutions argued that the sentences should be aggregated and served cumulatively. The issue before the court was whether the aggregate sentence should be imposed in respect of the "rolled up" counts and the application of concurrency and cumulation in relation to aggregate sentences under section 9(1) of the Sentencing Act 1991.

The court considered the provisions of section 9(1) of the Sentencing Act 1991, which allows the court to impose aggregate sentences where the offences are related. The court noted that the offences in this case were not trivial and had a significant impact on the victims and the community. The court examined the principles of concurrency and cumulation, and determined that the aggregate sentence was appropriate given the nature and circumstances of the offences. The court held that the aggregate sentence should be imposed in respect of the "rolled up" counts, and that the sentences should be served cumulatively.

In conclusion, the court allowed the appeal by the Director of Public Prosecutions and set aside the original sentence imposed by the court below. The court ordered that Felton be re-sentenced to an aggregate sentence, to be served cumulatively, taking into account the principles of concurrency and cumulation under section 9(1) of the Sentencing Act 1991. The court emphasised the importance of ensuring that the sentence reflects the seriousness of the offences and the need to protect the community.

Orders