SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 321 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABBE JANE FELTON |
---
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 |
---
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).
---
| 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…
Continue reading DPP v Felton
Sign in free to access the full text
- AGLC
- DPP v Felton [2007] VSCA 65
- Case
- [2007] VSCA 65
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.