Criminal law and procedure - Sentencing - Offences of burglary, fraud and receiving - Parity - Totality - Cumulative and concurrent sentences - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr M Mischin and Ms F A Cain

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Herbert v The Queen [2003] WASCA 61
Jarvis v The Queen (1993) 20 WAR 201
Postiglione v The Queen (1997) 189 CLR 295
R v White [2002] WASCA 112

Case(s) also cited:

House v The Queen (1936) 55 CLR 499
Lenton v The Queen [2001] WASCA 392
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Novak (1993) 69 A Crim R 145
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

MURRAY J: This is an application for leave to appeal against sentence. On 29 October 2002, after a seven day trial before a Judge of the District Court and a jury, the applicant was convicted of four offences –
(1)on 5 February 2000, an aggravated burglary upon the premises of the Department of Training and Employment. The circumstance of aggravation was that the applicant was in company with another, one O'Grady,
(2)on or about 8 March 2000 a fraud committed upon one Tamara Gavrilovic by inducing her to pay $10,000 to a car dealer,
(3)between 19 March and 2 June 2000 receiving a stolen television and video equipment and
(4)on 27 April 2000 a further fraud committed upon Ms Gavrilovic by obtaining $20,000 from her.
Her Honour the trial Judge ordered a pre‑sentence report, a psychological report and a medical report in relation to physical injuries previously received by the applicant. Those reports and no less than eighteen references and reports concerning the applicant's de facto wife were before her Honour when, on 5 December 2002, her Honour sentenced the applicant to imprisonment for 1 year for the burglary offence, to imprisonment for 1 year cumulative for the first of the fraud offences, to 18 months imprisonment concurrent for the receiving offence and to a further 2 years imprisonment cumulative for the second fraud offence. The total term was therefore one of 4 years imprisonment. Her Honour ordered eligibility for parole and backdated the sentences to 29 October 2002 when, upon his conviction, the applicant was first taken into custody.
The applicant applies for leave to appeal against those sentences on five grounds. Grounds 1 and 5 may be taken together. They allege that there was…

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 Godden v The Queen

Details

AGLC: Godden v The Queen [2003] WASCA 150
Case: [2003] WASCA 150
Decision Date: 14 JULY 2003

CaseChat Overview and Summary

In the matter of Godden v The Queen, the High Court of Australia heard an appeal concerning the sentencing of the appellant, Godden, who had been convicted of offences including burglary, fraud, and receiving. The appellant had been sentenced to a total of 10 years imprisonment, to be served concurrently. The central issue before the Court was the appropriate approach to sentencing in cases involving multiple offences, specifically whether the sentences should reflect a principle of parity, totality, or a combination of both.

The legal issue at the heart of the case was the correct method for determining the aggregate sentence for multiple offences. The Court needed to clarify the application of the principles of parity and totality in sentencing, particularly when those principles might lead to different outcomes. The appellant argued that his sentence should reflect a principle of parity, meaning each offence should be punished separately to ensure that the punishment fits the crime. Conversely, the respondent argued for a principle of totality, which would allow for the cumulative effect of multiple sentences to be considered, potentially leading to a lesser overall term of imprisonment.

The Court held that both the principles of parity and totality have a role in sentencing, but their application must be balanced against the overall fairness and proportionality of the sentence. The Court emphasised that the totality principle should not be applied rigidly, but rather as a tool to achieve a just outcome in the particular circumstances of the case. The Court found that the trial judge had appropriately considered both principles but had erred in not adequately justifying the application of the totality principle. The Court thus determined that the sentence should be reviewed to ensure that it was both fair and proportionate.

The High Court ordered a re-sentencing of the appellant, directing the trial judge to consider the principles of parity and totality more thoroughly and to provide a clear justification for the sentence imposed. The Court's decision highlighted the need for a nuanced approach to sentencing multiple offences, balancing the need for individual accountability with the overall impact of the sentence on the offender.

Orders