Finn v Wallace and Stewart
[2016] VSC 10
•28 January 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 04529
| BRADLEY WILLIAM FINN | Appellant |
| v | |
| NICHOLAS ST JAMES WALLACE | Respondent |
and
S CI 2015 04530
| BRADLEY WILLIAM FINN | Appellant |
| v | |
| FERGUS CHRISTOPHER STEWART | Respondent |
---
JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2015 |
DATE OF JUDGMENT: | 28 January 2016 |
CASE MAY BE CITED AS: | Finn v Wallace & Stewart |
MEDIUM NEUTRAL CITATION: | [2016] VSC 10 |
---
SENTENCING – Jurisdictional limit of two years’ imprisonment applicable to indictable offences heard and determined summarily by the Magistrates’ Court – Whether sentences imposed in respect of the relevant charges complied with limit – Consideration of aggregate sentencing – Matters remitted to the Magistrates’ Court for re-hearing – Sentencing Act 1991 ss 9, 113, 113A and 113B – Criminal Procedure Act 2009 ss 28 – Oleyar v R [2015] VSCA 134.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G Nash QC with Ms J Swiney | Access Law |
| For the Respondents | Mr D Gurvich SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
HIS HONOUR:
On 24 June 2015 at the Magistrates’ Court of Victoria at Dandenong, following a plea of guilty, the Magistrate made an order sentencing the appellant, Mr Bradley William Finn, as follows:
Charge No. Offence & Offence Date Prosecution Under Max. Penalty Court Order Informant STEWART 2 Contravene a conduct condition of bail
09.05.2015
s 30A(1) Bail Act 1977 30 penalty units or 3 months’ imprisonment Convicted and sentenced to an imprisonment term of 8 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.7 Contravention of family violence final intervention order
09.05.2015
s 123(2) Family Violence Protection Act 2008 Level 7 imprisonment (2 years max) or a level 7 fine (240 penalty units max) or both Convicted and sentenced to an imprisonment term of 8 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.Informant WALLACE 3 Recklessly cause serious injury
29.04.2015
s 17 Crimes Act 1958 Level 4 imprisonment (15 years max) Convicted and sentenced to an imprisonment term of 30 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.6 Criminal damage (intent damage/destroy)
29.04.2015
s 197(1) Crimes Act 1958 Level 5 imprisonment (10 years max) Convicted and sentenced to an imprisonment term of 30 months.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
This is part of an aggregate sentence.
Effective total State term imposed is 2 years 6 months.
Non-parole fixed at 20 months.TES:
NPP:2 years 6 months’ imprisonment.
20 months.
In proceeding S CI 2015 04530, in which Mr Fergus Christopher Stewart is the respondent, the appellant contends that the Magistrate erred in sentencing him to 30 months’ imprisonment in respect of charge 3 on the basis the Magistrate exceeded the jurisdictional limit of two years’ imprisonment imposed by s 113 of the Sentencing Act 1991 (‘the Act’).[1]
[1]The respondent, Fergus Christopher Stewart, is the informant in respect of charges 1, 2 and 7. Charge 1 was struck out.
In proceeding S CI 2015 04529, in which Mr Nicholas St James Wallace is the respondent, the appellant contends that the Magistrate erred in sentencing him to 30 months’ imprisonment in respect of charge 6 on the basis the Magistrate exceeded the jurisdictional limit of two years’ imprisonment imposed by s 113 of the Act.[2]
[2]The respondent, Nicholas St James Wallace, is the informant in respect of charges 3, 4, 5 and 6. Charges 4 and 5 were struck out.
Legislative framework
The relevant sections of the Act are as follows:
9 Aggregate sentence of imprisonment[3]
(1)If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
(1A)Despite subsection (1), a court must not impose an aggregate sentence of imprisonment if—
(a)the offender is a serious offender within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that Part; or
(ab)the offences comprise at least one offence that is a baseline offence; or
(b)the offences comprise at least one offence committed by the offender while released under a parole order and one offence committed at another time.
(2)The term of an aggregate sentence of imprisonment imposed in accordance with subsection (1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences in accordance with this Act if the court had imposed a separate sentence of imprisonment in respect of each of them.
(3)If a court proposes to impose an aggregate sentence of imprisonment, it must before doing so announce in open court, in language likely to be readily understood by the offender—
(a)the decision to impose an aggregate sentence and the reasons for doing so; and
(b)the effect of the proposed aggregate sentence.
(4)If a court imposes an aggregate sentence of imprisonment in respect of 2 or more offences, the court—
(a)is not required to identify separate events giving rise to specific charges; and
(b)is not required to announce—
(i)the sentences that would have been imposed for each offence had separate sentences been imposed; or
(ii)whether those sentences would have been imposed concurrently or cumulatively.
(4A)For the avoidance of doubt, an aggregate sentence of imprisonment may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge.
113Maximum term of imprisonment for indictable offence heard and determined summarily
(1)If a person is convicted by the Magistrates’ Court in a summary hearing of an indictable offence under section 28(1) of the Criminal Procedure Act 2009, the maximum term of imprisonment to which the court may sentence the offender is 2 years.
(2)Subsection (1) is subject to any contrary intention appearing in any Act other than this Act.
113AMaximum term of imprisonment for summary offence
(1)If a person is convicted of a summary offence punishable, but for this section, by a term of imprisonment of more than 2 years, the maximum term of imprisonment to which a court may sentence the offender in respect of that offence is 2 years.
(2)This section has effect despite anything to the contrary in any Act.
113BMaximum cumulative term of imprisonment imposable by Magistrates’ Court
The Magistrates’ Court must not impose on any person in respect of several offences committed at the same time cumulative sentences of imprisonment to take effect in succession for a term exceeding in the whole 5 years unless that term is expressly provided by an Act.
Section 28(1) of the Criminal Procedure Act 2009 provides that indictable offences can be heard and determined summarily by the Magistrates’ Court. Charge 3, recklessly cause serious injury, and charge 6, intentionally cause criminal damage, are indictable offences. The appellant pleaded guilty to these charges before the Magistrate and consented to have them heard with the two summary charges.[3]
[3]Criminal Procedure Act 2009 (the ‘Act’) s 29(1) and (2).
Submissions of the parties
Mr G. Nash QC, who appeared with Ms J. Swiney for the appellant, specifically referred to the orders made by the Magistrate and the words that each term of imprisonment in each charge ‘is part of an aggregate sentence – concurrent with other State sentences imposed in this case – effective total State term imposed is 2 years and 6 months’. As Mr Nash stated, the Magistrate ‘purported to impose a single aggregate sentence in respect of four offences. Nothing intrinsically wrong with that’.[4] Mr Nash submitted that the flaw in sentencing was the sentence on charges 3 and 6 of 30 months’ imprisonment. The maximum sentence of imprisonment for these indictable offences is two years. Mr Nash summarised the plaintiff’s contention as follows:[5]
It is our contention that it can’t [sentence a person to a term of imprisonment of 30 months in respect of an indictable offence triable summarily, on the basis that sentence is part of an aggregate sentence]; it can sentence only as part of an aggregate sentence, only to two years but it can impose an aggregate sentence which is made up of the sum of the parts or which is extracted from the Magistrate’s sense of the overall criminality of the action. But it can’t put in building blocks in the aggregate sentence that are beyond power. The building blocks here are beyond power…
[4]Transcript, 1.16 - 1.18.
[5]Transcript, 28.25 – 29.1.
Mr D.D. Gurvich SC, who appeared for the respondents, submitted that if one looked at the sentences of 30 months’ imprisonment on charges 3 and 6 but did not consider the structure and words of the total sentence, then the Magistrate would have exceeded jurisdiction by sentencing the appellant to 30 months’ imprisonment in respect of these two charges. However, he contended, there is a need to consider s 9(1) of the Act which permits a court to ‘impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them’. Mr Gurvich submits that this section of the Act permits the Magistrate to sentence, in this case the appellant, to 30 months’ imprisonment, even though that exceeded the maximum permissible term of imprisonment by six months because the aggregate sentence is two years and six months, and the total sentence for the indictable offences is four years.[6]
[6]Ibid, 14.5 – 14.22.
It was contended by Mr Gurvich, in attempting to explain the sentence of the Magistrate, that ‘…when looking at charges 3 and 6 as an aggregate, the maximum was four years. She [the Magistrate] has picked 30 months because it comes within the four year maximum’.[7]
[7]Ibid, 23.28 – 23.31.
Mr Nash referred me to the decision of Ashley JA in Oleyar v R.[8] The appeal in that case in part concerned an aggregate sentence imposed by a County Court judge. The judge sentenced Mr Miroslav Oleyar to a total effective sentence of four years and six months on charge 1, trafficking a drug of dependence. Charge 6, possession of a drug of dependence (cannabis), the maximum penalty for the small amount (personal use) possessed by Mr Oleyar was five penalty units. The County Court judge sentenced Mr Oleyar to six months’ imprisonment on charge 6, stating: ‘Aggregate sentence with charges 2 – 6’. Ashley JA stated: ‘… The judge had imposed a sentence which, in law, was unavailable’.[9] Later in his reasons, Ashley JA referred to the sentence of six months on charge 6 as ‘impermissible’.[10] The point made on behalf of the appellant is that it made no difference that the impermissible penalty of six months of imprisonment was aggregated with the legally available sentence of four years and six months.
[8][2015] VSCA 134.
[9]Oleyar v R [2015] VSCA 134, [14].
[10]Ibid, [26].
Thus the question – ‘Does the fact that the Magistrate has engaged s 9 of the Act make permissible what is otherwise impermissible as is submitted on behalf of the respondents by Mr Gurvich?’
If she [the Magistrate] hadn’t recorded that the sentences were part of an aggregate sentence, then there is no issue that it would have been beyond power. No issue about that. But once she has engaged s 9 of the Sentencing Act, both the terms of s 9 of the purpose and intent of s 9 apply and what her Honour has done is consistent with the terms and the intent.[11]
[11]Transcript, 21.25 – 21.31.
Whilst this explanation may (or may not) explain the reasoning of the Magistrate in imposing sentences of 30 months for charges 3 and 6, I do not consider, because the maximum term of imprisonment for both charges was four years (two years on each charge), that the methodology of the Magistrate is validated. Because the Magistrate, in sentencing on each charge, referred to individual sentences being part of an aggregate sentence and a concurrent sentence does not result in the Magistrate being able to disregard the very clear words of s 113(1) of the Act that the maximum term of imprisonment for an indictable offence heard and determined summarily is two years.
The Magistrate, in sentencing, did not, in the orders for each charge, seek in any way to link charges 3 and 6 together. There is nothing in the orders to suggest that the sentence of 30 months’ imprisonment on charge 3 is an aggregate sentence of the two indictable charges, 3 and 6. But even if the orders contained such a link, it would not overcome the fundamental error of the Magistrate – her Honour is prohibited by the Act from sentencing the appellant to 30 months’ imprisonment on charge 3 and 30 months’ imprisonment on charge 6; this prohibition is not in some way ameliorated because the sentencing occurred in the context of imposing an aggregate sentence.
Section 9(4)(b)(i) of the Act states that in imposing an aggregate sentence of imprisonment in respect of two or more offences, the Court is not required to pronounce the sentences that would have been imposed for each offence.[12] Having determined to impose sentences on each charge, however, the Magistrate was required to sentence in accordance with s 113(1) of the Act. The imposition of a term of imprisonment of 30 months on charges 3 and 6 in the circumstances was ‘impermissible’.
[12]See also Arie Freiberg, Fox and Freiberg’s Sentencing, State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 808.
In the circumstances, I allow the appeals and order that the matters be remitted to the Magistrates’ Court of Victoria for re-hearing before the Magistrates’ Court of Victoria, differently constituted, in accordance with law.