Dwyer v. Calco Timbers (No.2) - [2008] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 88 of 2007

THE QUEEN
	v
PAUL COCHRANE

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JUDGES:	MAXWELL P, BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2008
DATE OF JUDGMENT:	15 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 60

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CRIMINAL LAW – Sentencing – Offences committed while on parole – Parole cancelled after sentence passed – Statutory cumulation – Totality – Appeal dismissed – Sentencing Act s 16(3B).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr J P Dickinson	Brugman Mellas

MAXWELL P:

In my opinion the appeal should be dismissed. Although the sentencing discretion is re-opened, I would impose no different sentence from that imposed below. That being so, s 568(4) requires the dismissal of the appeal. My reasons are as follows.

On 19 August 2004, the appellant was sentenced on one count of attempted armed robbery to two years' imprisonment, with a non-parole period of one year. The circumstances of that offending were that the appellant entered a milk bar with a stocking over his head and carrying a knife. He demanded $50 from the milk bar owners. The owners recognised the appellant and one of them said to him ‘I know you’. At that point the appellant ran out of the milk bar.

The appellant was subsequently released on parole, but his parole was revoked on 9 November 2005. He was re-released on parole on 11 May 2006. On 16 November 2006, some five months later, the appellant committed the offences with which this appeal is concerned. He subsequently pleaded guilty to one count of carrying an unregistered firearm while a prohibited person and one count of making a threat to kill.

On 28 March 2007, the appellant was sentenced by a judge of the County Court as follows: on the first count, which carries a maximum of 15 years, to 18 months' imprisonment; and on the second count, which carries a maximum of 10 years' imprisonment, to two years' imprisonment. The learned judge ordered that 12 months of the sentence imposed on count 1 be cumulative on the sentence on count 2, producing a total effective sentence of three years, and his Honour fixed a non-parole period of two years.

In the course of argument on the plea, there was some confusion about whether the offences for which the appellant was to be sentenced had been committed before the expiry of his parole on the attempted armed robbery sentence. The fact was - and his Honour should have been informed quite specifically of this - that these offences were committed while the appellant was still on parole. As a result, at the date of sentence the appellant was at risk that the Parole Board would cancel his parole.

In the event, the Parole Board did subsequently cancel the appellant's parole and reclaimed a period of seven months and 16 days. That decision of…

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

Case: [2008] VSCA 60
Decision Date: 15 April 2008

CaseChat Overview and Summary

Dwyer and Calco Timbers were parties in a legal dispute heard by the Court of Appeal. The central issue revolved around the sentencing of Dwyer for offences committed while he was on parole. Notably, his parole was cancelled post the sentencing of the original offence, but prior to the sentencing of the subsequent offence. The crux of the matter was whether the sentences for these two offences should be cumulative or whether they should be considered as a single, total sentence. This question was significant given the statutory guidelines and principles of totality under the Sentencing Act.

The court was tasked with interpreting and applying the provisions of section 16(3B) of the Sentencing Act. This section addresses the principle of totality, which mandates that the total punishment for multiple offences should not be disproportionate to the overall seriousness of the offending. The court had to determine if the sentences should be served cumulatively or if the principle of totality should apply to mitigate the overall sentence. Furthermore, the court needed to consider the effect of the parole cancellation on the sentencing process.

In its reasoning, the court emphasised the importance of statutory compliance and the need to adhere to the principles of sentencing as outlined in the Act. The court held that since the parole was cancelled after the original offence but before the subsequent offence, the sentences should be cumulative. The court dismissed the appeal, finding that the trial judge had correctly applied the statutory provisions and the principle of totality. The decision underscored the importance of following legislative directives in sentencing and highlighted the court's role in ensuring that sentences are proportionate and just.

Orders