DPP v Lebehen - [2011] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0733

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	v
GREGORY MICHAEL LEBEHEN	Respondent

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JUDGES	ASHLEY, NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2010 and 17 March 2011
DATE OF JUDGMENT	17 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 75
JUDGMENT APPEALED FROM	R v Lebehen (Unreported, County Court of Victoria, Judge Smallwood, 24 June 2009)

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CRIMINAL LAW – Appeal - Sentence – Crown appeal against sentence – Whether sentence manifestly inadequate – Whether appellate intervention warranted – Consideration of breach of parole and time owed to Parole Board – Consideration of effect of offences for which respondent subsequently sentenced – Principle of totality – Intervention of Court not warranted as a matter of discretion - Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr M Croucher	Robert Stary Lawyers

ASHLEY JA:

I will ask Weinberg JA to give the first judgment.

WEINBERG JA:

On 22 June 2009, the respondent pleaded guilty in the County Court at Melbourne to two counts of burglary, six counts of theft, one count of attempted burglary, two counts of aggravated burglary and three counts of false imprisonment. He also pleaded guilty to one summary charge, that of making a false report to the police.

On 24 June 2009, he was sentenced as follows:

Count Offence Maximum Sentence Cumulation

1 Burglary 10 years’ imp 6 months’ imp 2 months

2 Theft 10 years’ imp 3 months’ imp -

3 Attempted burglary 5 years’ imp 3 months’ imp -

4 Burglary 10 years’ imp 6 months’ imp 2 months

5 Theft 10 years’ imp 3 months’ imp -

6 Aggravated burglary 25 years’ imp 9 months’ imp 3 months

7 Theft 10 years’ imp 3 months’ imp -

8 False Imprisonment 10 years’ imp 12 months’ imp 4 months

9 False Imprisonment 10 years’ imp 12 months’ imp 4 months

10 Theft 10 years’ imp 3 months’ imp -

11 Theft 10 years’ imp 3 months’ imp -

12 Aggravated burglary 25 years’ imp 9 months’ imp 3 months

13 False imprisonment 10 years’ imp 18 months’ imp base sentence

14 Theft 10 years’ imp 6 months’ imp -

Summary charge Make false report to police 1 year imp 1 month imp -
Total Effective Sentence = 3 years’ imprisonment
Non-Parole Period = 2 years

By notice of appeal filed on 20 July 2009, the Director of Public Prosecutions (‘the Director’) contends that the individual sentences imposed, a total effective sentence of three years' imprisonment, and the non‑parole period of two years are all manifestly inadequate. In addition, the Director argues that there ought to have been some cumulation in respect of counts 2, 3, 5, 7, 10, 11 and 14.

The particulars supplied in support of Ground 1, namely that of manifest inadequacy, are very much in a standard form. Put simply, the Director contends that…

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 Lebehen

Details

AGLC: Director of Public Prosecutions v Lebehen [2011] VSCA 75
Case: [2011] VSCA 75
Decision Date: 17 March 2011

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Lebehen, the appellant sought an appeal against the sentence imposed on the respondent, who had been convicted of serious criminal offences. The appeal was brought before the court with the central issue being whether the sentence imposed on the respondent was manifestly inadequate, warranting appellate intervention. The respondent had been sentenced for serious offences, including the breach of parole and additional crimes for which he was subsequently sentenced. The principle of totality was considered, taking into account all offences for which the respondent was sentenced. The court examined the sentence in light of these considerations and the discretion available under the relevant legislative provisions.

The court considered the appropriate factors to determine if the sentence was manifestly inadequate, including the seriousness of the offences, the respondent's criminal history, and the principle of totality. It was noted that the respondent had breached parole and committed additional offences, which warranted consideration. The court acknowledged the importance of ensuring sentences reflect the gravity of the crimes and the need for deterrence and denunciation. However, the court found that the sentence imposed, while severe, was not manifestly inadequate. The appellate court exercised its discretion and determined that intervention was not warranted in this instance.

The court concluded that the sentence imposed on the respondent was not manifestly inadequate, and therefore, the appeal was dismissed. The court recognised the seriousness of the offences and the need for appropriate sentencing but found that the sentence, taking into account the principle of totality, was sufficient. The court exercised its discretion and determined that appellate intervention was not warranted in this case. The appeal was dismissed, and the sentence imposed on the respondent was upheld.

Orders

Orders of the court

The appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Count	Offence	Maximum	Sentence	Cumulation
1	Burglary	10 years’ imp	6 months’ imp	2 months
2	Theft	10 years’ imp	3 months’ imp	-
3	Attempted burglary	5 years’ imp	3 months’ imp	-
4	Burglary	10 years’ imp	6 months’ imp	2 months
5	Theft	10 years’ imp	3 months’ imp	-
6	Aggravated burglary	25 years’ imp	9 months’ imp	3 months
7	Theft	10 years’ imp	3 months’ imp	-
8	False Imprisonment	10 years’ imp	12 months’ imp	4 months
9	False Imprisonment	10 years’ imp	12 months’ imp	4 months
10	Theft	10 years’ imp	3 months’ imp	-
11	Theft	10 years’ imp	3 months’ imp	-
12	Aggravated burglary	25 years’ imp	9 months’ imp	3 months
13	False imprisonment	10 years’ imp	18 months’ imp	base sentence
14	Theft	10 years’ imp	6 months’ imp	-
Summary charge	Make false report to police	1 year imp	1 month imp	-