Criminal law – Director’s appeal against sentence – Failing to stop after fatal accident and render assistance – Conspiracy to attempt to pervert the course of justice – Conspiracy impeding police investigation – Director’s claim that sentences are manifestly inadequate – Just punishment and denunciation required – Head sentence not manifestly inadequate – Principles applicable to fixing non-parole period – Non-parole period of 10 months in relation to head sentence of 27 months unusually low – No reasons given or apparent for such non-parole period – Non-parole period manifestly inadequate – Double jeopardy – Respondent re-sentenced to non-parole period of 18 months.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr P.A. Coghlan, Q.C., D.P.P. with Miss R.E. Carlin
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent
Mr M.J. Croucher with Mr M.J. Gleeson (Sol.)
Michael J. Gleeson & Associates Pty.
MAXWELL, P.:
I have had the considerable advantage of reading in draft the judgment of Chernov, J.A., in which the circumstances of the case and the arguments on the appeal are fully described, and the concurring judgment of Callaway, J.A., which contains a valuable restatement of the principles governing the fixing of a non-parole period and the review of that decision by an appellate court.
Callaway and Chernov, JJ.A. would dismiss the appeal in respect of the sentence on count 3 (conspiracy to pervert the course of justice) but would uphold the appeal in respect of the non-parole period which, in their Honours’ view, should be increased from 10 months to 18 months.
I agree that the appeal in relation to count 3 should be dismissed, for the reasons which their Honours give. I have, however, reached a different conclusion in relation to the non-parole period. For the reasons which follow, I would dismiss that part of the appeal also.
Crown appeals: the cardinal rule
This is an appeal against sentence by the Crown. As has often been said, Crown appeals on sentence fall into a very special category. The cardinal rule, as repeatedly stated in this Court, is that –
“an appeal by the Crown should be brought only in ‘the rare and exceptional case’... to establish some point of principle.”[1]
[1]R v Clarke [1996] 2 VR 520 at 522. In recent years in Victoria, Crown appeals have been brought, and have succeeded, with increasing frequency: see Richard Edney, “The rise and rise of Crown appeals in Victoria” (2004) 28(6) Crim L J 351.
In 1977,[2] Barwick, C.J. formulated the rule as follows:
“... An appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform…
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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AGLC
DPP v Josefski [2005] VSCA 265
Case
[2005] VSCA 265
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions (Cth) versus Josefski, the Director appealed against sentences imposed on the respondent for multiple offences, including failing to stop after a fatal accident and render assistance, conspiracy to attempt to pervert the course of justice, and conspiracy impeding police investigation. The appeal was heard in the High Court of Australia. The Director argued that the sentences were manifestly inadequate and sought a re-sentencing that would serve the purposes of just punishment and denunciation.
The court was required to consider whether the sentences imposed were adequate, particularly in light of the principles governing the fixing of non-parole periods. The Director contended that the head sentence of 27 months was not manifestly inadequate, but the non-parole period of 10 months was unusually low and not supported by any reasoning. The court had to determine whether the non-parole period was manifestly inadequate, and if so, what the appropriate re-sentencing should be. The court also had to consider the principle of double jeopardy in the context of the re-sentencing.
The court held that the head sentence of 27 months was not manifestly inadequate, but the non-parole period of 10 months was manifestly inadequate, as no reasons were given or apparent for such a short non-parole period. The court found that the principles applicable to fixing non-parole periods required a re-sentencing that provided a more appropriate balance between the purposes of just punishment and denunciation. The respondent was re-sentenced to a non-parole period of 18 months, which the court deemed to be a more suitable period in relation to the head sentence. The court also noted that the re-sentencing did not infringe upon the principle of double jeopardy, as it was a matter of re-assessing the sentence rather than punishing the respondent twice for the same offence.