Ludeman v The Queen

Case [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…

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Ludeman v The Queen [2010] VSCA 333
Case
[2010] VSCA 333
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CaseChat Overview and Summary

In the High Court of Australia, the case of Ludeman v The Queen involved the appellant, Ludeman, who was convicted of various serious criminal offences, including intentionally causing serious injury and theft. The central dispute pertained to the interpretation of sentencing provisions in the Criminal Procedure Act 2009, specifically concerning the imposition of individual sentences and the calculation of the non-parole period. The appellant sought leave to appeal against his sentence, arguing that there were errors in the sentencing process that warranted a re-examination by the court.

The primary legal issues before the court were whether the appellant's application for leave to appeal should be granted in respect of his sentences for intentionally causing serious injury and theft. Additionally, the court needed to determine if there were any grounds for allowing the appeals and, if so, whether the sentences should be varied. The interpretation of statutory provisions such as sections 3, 278, 280, 281, and 282 of the Criminal Procedure Act 2009 was critical to resolving these issues. The court's analysis focused on the proper application of these provisions to ensure that the sentences met the legal standards for fairness and accuracy.

Upon reviewing the submissions and the applicable legal framework, the court found that there were indeed errors in the original sentencing process. Consequently, the court granted the appellant leave to appeal with respect to the sentences for both intentionally causing serious injury and theft. The appeal was allowed, and the appellant was re-sentenced. For the intentionally causing serious injury offence, the court allowed the appeal and re-sentenced the appellant, establishing a new total effective sentence and confirming the non-parole period. However, regarding the application for leave to appeal concerning the theft offence, the appeal was dismissed, and the original sentence was upheld. The court's reasoning was grounded in the statutory provisions and their interpretation, ensuring that the sentences were proportionate and correctly calculated according to the law.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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