R v Karpinski (Unreported, County Court of Victoria, Judge Chettle, 12 May 2009)
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CRIMINAL LAW - Appeal - Sentence - Appellant pleaded guilty to theft and armed robbery charges – At time of sentencing appellant facing unrelated charge of attempted murder – After sentencing nolle prosequi entered on unrelated charge of attempted murder – scope of Renzella discretion – whether time spent in custody for unrelated charge should have been taken into account at first opportunity by sentencing judge – whether entering of nolle prosequi constitutes fresh evidence on appeal – R v Renzella [1997] 2 VR 88, discussed – R v Wade [2005] VSCA 276, Warwick v The Queen [2010] VSCA 166, approved – Appeal allowed, appellant resentenced.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr J McLoughlin
Victoria Legal Aid
For the Crown
Mr T Gyorffy
Mr C Hyland, Solicitor for Public Prosecutions
WEINBERG JA:
I agree, for the reasons given by Tate JA that, as the law currently stands, the appellant is entitled to have both his total effective sentence and his non-parole period marginally reduced.
However, I should add that, in my view, the law regarding the credit to be given for pre-sentence detention in respect of unrelated offending is in an unsatisfactory state.
I have no difficulty with the notion of credit being given for ‘dead time’, as explained by this Court in R v Renzella.[1] That case concerned an appeal by the Director of Public Prosecutions against a sentence on a charge of conspiracy. The principal ground of appeal was that the trial judge had erred in reducing both the head sentence and the non-parole period (pursuant to s 18(1) of the Sentencing Act 1991) by the period which the accused had spent in detention in relation to an unrelated charge. The Court in Renzella recognised a general discretion, at common law, that would enable the time that the respondent had spent in custody awaiting trial on both the charge of conspiracy, and on the unrelated charge, to count as pre-sentence detention, in a broad way, in relation to the charge of conspiracy.
The circumstances of Renzella were somewhat special, in that the form of the legislation then under consideration virtually compelled the solution that was there adopted.
Since Renzella, there has been a steady growth in reliance upon so-called ‘dead time’ as a mitigating factor. In my view, however, Renzella ‘dead time’ is often now invoked in circumstances where its application is difficult to justify, either as a matter of logic, or in principle.
In Warwick v The Queen[2] the Court noted that the circumstances of that case,
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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AGLC
Karpinski v The Queen [2011] VSCA 94
Case
[2011] VSCA 94
Decision Date
CaseChat Overview and Summary
In Karpinski v The Queen, the appellant faced the court following a guilty plea to charges of theft and armed robbery. The issue before the court was the sentencing of the appellant, who, at the time of sentencing, was also facing a separate charge of attempted murder. After the original sentencing, a nolle prosequi was entered on the attempted murder charge. The appellant's appeal centred on whether the time spent in custody for the unrelated charge should have been considered by the sentencing judge and if the nolle prosequi constituted fresh evidence warranting a re-sentencing.
The court considered the scope of the discretion under R v Renzella, emphasising that the time spent in custody for an unrelated charge should be accounted for at the earliest opportunity. The court also examined if the entry of nolle prosequi could be regarded as new evidence on appeal. The court referenced and approved the decisions in R v Wade and Warwick v The Queen, affirming that the entry of nolle prosequi on an unrelated charge can indeed be considered fresh evidence for the purpose of appeal. Consequently, the court concluded that the original sentencing did not appropriately consider the appellant's time in custody for the unrelated charge, leading to an improper exercise of the sentencing discretion.
Ultimately, the appeal was allowed, and the appellant was resentenced. The court's decision underscored the necessity for sentencing judges to consider all relevant factors, including time spent in custody for unrelated charges, to ensure a just and fair sentence. The final orders involved a reassessment of the appellant's sentence, taking into account the full context of the appellant's criminal history and the time already served in custody.