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Lord v The Queen

Lord v The Queen

Case [2018] VSCA 52 7 March 2018

Presumption of Cumulation

Co-offender

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0051
S APCR 2017 0054

DWAYNE MICHAEL LORD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2018
DATE OF JUDGMENT:	7 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 52
JUDGMENT APPEALED FROM:	DPP v Lord (Unreported, County Court of Victoria, Judge Gucciardo, 19 December 2014) DPP v Lord (Unreported, County Court of Victoria, Judge Quin, 6 March 2017)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery (2), false imprisonment (2), burglary (2), handling stolen goods (2) – Offending while on parole – Cancellation of parole – Parole sentence of 14 months served before sentence – Totality – Whether parole sentence taken into account – Whether sentence manifestly excessive – Serious instances of armed robbery – Presumption of cumulation – Prior convictions – Parity – Co-offender gave evidence – Discount for co-operation – Whether sentencing differential justified – No error – Leave to appeal refused.

PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Consideration by single judge on papers – Leave refused – Written reasons given – Election to renew application – Need for proper basis for renewal – Criminal Procedure Act 2009 s 315(2) – Supreme Court (Criminal Procedure) Rules 2008 r 2.08.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M FitzGerald	Dr Martine Marich and Associates
For the Respondent	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

Summary

The applicant sought leave to appeal against sentences respectively imposed on him by Judge Gucciardo in December 2014 and by Judge Quin in March 2017. He did not seek an oral hearing of his application and, on 11 July 2017, Priest JA refused leave to appeal on all grounds. His Honour gave lengthy written reasons for the refusal of leave.

As the applicant is entitled to do under the Criminal Procedure Act2009 (‘CP Act’) and the Supreme Court (Criminal Procedure) Rules 2008 (‘Rules’), he has renewed his application for leave.[1] For reasons which follow, we would likewise refuse leave to appeal on all grounds, for reasons very similar to those given by Priest JA.
[1]CP Act s 315(2); Rules r 2.08.

Although the issues in the case are themselves unremarkable, three matters of general importance arose in the course of argument. The first concerns the right of election. Section 315(2) of the CP Act entitles a person in the applicant’s position, whose application for leave has been considered by one judge of appeal and refused, to elect to renew the application before a different bench. Since the right of election was introduced, the number of applicants seeking a hearing in the first instance has dropped substantially, which has in turn reduced cost and improved timeliness in criminal appeals.[2]
[2]In 2016–17, 73 per cent of applications for leave to appeal against sentence were dealt with, in the first instance, by a single judge on…

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 Lord v The Queen

Details

AGLC: Lord v The Queen [2018] VSCA 52
Case: [2018] VSCA 52
Decision Date: 7 March 2018

CaseChat Overview and Summary

The case of Lord v The Queen was heard in the Court of Appeal. The appellant, Lord, was convicted of multiple criminal offences including armed robbery, false imprisonment, burglary, and handling stolen goods. He appealed against his sentence, arguing it was manifestly excessive and that the parole sentence he had already served should not be taken into account.

The court was required to determine whether the sentence imposed was manifestly excessive, whether the parole sentence served should have been taken into account, and if the sentencing differential between the appellant and his co-offender was justified. The appellant also argued that the parole cancellation should not have been taken into account in the sentencing.

The court found that the appellant's arguments did not establish any error in the primary judge's sentencing. The court held that the totality principle, which considers the overall sentence for all offences committed together, was correctly applied. The court further found that the primary judge properly considered the parole sentence served and that the sentencing differential was justified due to the co-offender's cooperation. The court also determined that the cancellation of parole was appropriately taken into account. The application for leave to appeal was refused as the appeal did not have a reasonable prospect of success.

The court's final orders were that the application for leave to appeal was refused, and the appellant's convictions and sentences were upheld. The reasons provided by the primary judge for the sentence imposed were deemed sufficient, and no further appeal was permitted.

Orders