CRIMINAL LAW — Sentencing — Multiple armed robberies —Sentencing Act 1991 (Vic) — Section 16(3B) — Parole sentence being served — Commencement of sentence — Order in which sentences to be served — Principle of totality — Manifest inadequacy — Recidivist — Cumulation — Inadequate to reflect discrete and persistent offending.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr T Gyorffy
Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent
Mr P F Tehan QC with Mr L C Carter
R V Tait & Co
MAXWELL P:
I have had the advantage of reading in draft the reasons of Redlich JA. I agree with his Honour, for the reasons which he gives, that the appeal should be allowed and the respondent re-sentenced as he proposes.
BUCHANAN JA:
I would allow the appeal for the reasons stated by Redlich JA and re-sentence the respondent in the manner proposed by his Honour.
REDLICH JA:
On 20 November 2007 the respondent, having pleaded guilty in the County Court to four counts of armed robbery, one count of theft and one count of being a prohibited person carrying an unregistered firearm, was sentenced to six months’ imprisonment on the count of theft (count 1), two years and three months’ imprisonment on one count of armed robbery (count 2), two years and six months’ imprisonment on the remaining three counts of armed robbery (counts 3, 4 and 5) and one year and six months’ imprisonment on the count of being a prohibited person carrying an unregistered firearm (count 6). It was ordered that the whole of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 3 and that otherwise the sentences on all counts were to be served concurrently with the sentence imposed on count 3 resulting in a total effective sentence of five years’ imprisonment. It was ordered that the respondent serve a minimum of two years and nine months’ imprisonment before becoming eligible for parole.
The respondent committed these offences whilst on parole. He has an extensive criminal record, with convictions for 105 offences including armed robbery, firearms offences and drug offences from 19 court appearances.
On 19 March 2001 the respondent had been sentenced in New South Wales to a total effective sentence of five years and six months for a number of offences including entering a dwelling with a dangerous weapon. On 30 October 2001 the respondent was transferred to Victoria under the Prisoner (Interstate Transfer)Act1983 (Vic) to face charges in the County Court,[1] including conspiracy to commit armed robbery. On 30 January 2003 the respondent was sentenced in the County Court to a total effective sentence of three years and nine…
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
DPP v Kennedy [2008] VSCA 263
Case
[2008] VSCA 263
Decision Date
CaseChat Overview and Summary
In the case of the Director of Public Prosecutions versus Kennedy, the respondent was convicted of multiple armed robberies. The Supreme Court of Victoria was tasked with determining the appropriate sentence for these offences. The central issue before the court was the application of the Sentencing Act 1991 (Vic), specifically section 16(3B), which pertains to the ordering of sentences for concurrent offences and the principle of totality. The court also had to consider whether the proposed sentence was manifestly inadequate, particularly given Kennedy's history as a recidivist.
The court meticulously examined the nature of the offences and the principles of sentencing, including the principle of totality and the need to reflect the cumulative seriousness of Kennedy's criminal conduct. It was necessary to assess whether the sentence adequately reflected the discrete and persistent nature of the crimes committed. The court took into account Kennedy's history of recidivism, the seriousness of the offences, and the need for deterrence and protection of the community. It concluded that the sentence proposed by the trial judge, which did not adequately account for the totality of Kennedy's offending, was indeed manifestly inadequate.
Following this analysis, the court ordered a fresh sentencing hearing to ensure that the sentence imposed would appropriately reflect the totality of Kennedy's criminal conduct. This decision underscores the importance of applying sentencing principles correctly, particularly in cases involving repeat offenders. The final orders mandated a review of the sentence to ensure it was commensurate with the severity and frequency of the crimes committed, thereby achieving the aims of justice, deterrence, and community protection.