Ludeman v The Queen

[2010] VSCA 333

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0953

MICHAEL LUDEMAN	Applicant
v
THE QUEEN	Respondent
	S APCR 2010 0203
DANIEL THOMAS	Applicant
v
THE QUEEN	Respondent
S APCR 2010 0213
JAMIE FRENCH	Applicant
v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, BUCHANAN, NETTLE, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 October 2010
DATE OF JUDGMENT	10 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 333
JUDGMENT APPEALED FROM	(Unreported,  County Court of Victoria, Judge Campton, 4 December 2009 (Ludeman), 16 June 2010 (Thomas and French)

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Criminal law – Sentence – Interpretation – ‘The sentence’: Individual sentence, Order for cumulation/concurrency, Non-parole-period – ‘Total effective sentence’ – Sections 3, 278, 280, 281 and 282, Criminal Procedure Act 2009.

Sentencing – Intentionally causing serious injury – Theft – Whether application for leave to appeal should be granted – Leave granted on both counts – Appeal allowed – Appellant re-sentenced.

Sentencing – Intentionally causing serious injury – Assault – Whether application for leave to appeal should be granted – Leave granted with respect to sentence for assault – Appeal allowed – Appellant re-sentenced for assault – New total effective sentence – Non-parole period confirmed.

Sentencing – Intentionally causing serious injury – Application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant Ludeman	Mr S C Holt with Mr J E McLoughlin	Victoria Legal Aid
For the Applicant Thomas	Mr G M Hughan	Robert Stary & Associates
For the Applicant French	Mr D A Dann	Haines & Polites
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

1. I agree with the reasons and disposition in the joint judgment of Ashley and Redlich JJA.  I also agree with the views expressed by Buchanan and Nettle JJA.

BUCHANAN JA:

1. Despite the inconvenient consequences which it entails, I am persuaded by the draft reasons for judgment prepared by Ashley and Redlich JJA, that ‘sentence’ in s 280(2) of the Criminal Procedure Act 2009 does not mean the total effective sentence passed below. I also agree with their Honours that s 282(2) does not authorise the Court to make an order with respect to an individual sentence which is not the subject of a grant of leave to appeal.

1. I agree with their Honours as to the disposition of each application and appeal.

NETTLE JA:

1. For a while after the enactment of the Criminal Procedure Act 2009, I was inclined to think or, perhaps more accurately, I dared to hope that ‘a different sentence’ in s 281(1) (b) meant a different total effective sentence. Were it so, it would save the lamentably large amounts of time and effort which are invested in dealing with leave applications and correcting individual sentences in cases where the total effective sentence is unexceptionable.

1. Having now, however, read in draft the reasons for judgment of Ashley and Redlich JJA, I am compelled to agree with their Honours that…