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Northe v The King

Northe v The King

Case [2024] VSCA 145 27 June 2024

Appeal

Sentencing

Misconduct in Public Office

Leave to Appeal

Community Correction Order

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0192

RUSSELL JOHN NORTHE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 145
JUDGMENT APPEALED FROM:	[2023] VCC 1889 (Judge McInerney)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Two charges of misconduct in public office – Total effective sentence 1 year and 9 months – Non-parole period 1 year – Member of parliament made false claims in respect of administrative expenses – Second Verdins principle applicable – Sentencing judge determined that community correction order insufficiently punitive – Whether second Verdins principle required sentencing judge not to impose term of imprisonment – Second Verdins principle not requiring term of imprisonment not to be imposed in any particular case – Verdins did not require sentence of imprisonment not to be imposed – Leave to appeal refused.

CRIMINAL LAW – Whether sentencing judge assumed applicant would be granted parole contrary to Sentencing Act 1991 s 5(2AA)(a) – Sentencing judge’s reference to parole did not relate to consideration of how long applicant would spend in custody – No contravention of Sentencing Act 1991 s 5(2AA)(a) – Leave to appeal refused.

CRIMINAL LAW – Whether sentence manifestly excessive – Whether community correction order should have been imposed – Sentence reflects full impact of mitigating considerations – No error in imposing term of imprisonment – Leave to appeal refused.

Crimes Act 1958 s 320; Electoral Act 2002 pt 12 div 1C; Sentencing Act 1991 s 5(2AA)(a).

Verdins v The Queen (2007) 16 VR 269; R v Vardouniotis (2007) 171 A Crim R 227, considered. Hutchinson v The Queen (2015) 71 MVR 8, referred to.

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Counsel
Applicant:		Mr PJ Smallwood with Mr C Tom
Respondent:		Ms EH Ruddle KC
Solicitors
Applicant:	Tyler Tipping & Woods
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA:

The applicant was a member of the Legislative Assembly from 2006 to 2022, representing the electoral district of Morwell. On 27 September 2023, he pleaded guilty to two charges of misconduct in public office, an offence under the common law to which a maximum penalty of 10 years’ imprisonment applies.0F[1] He was sentenced to a total effective sentence of 1 year and 9 months’ imprisonment, with a non-parole period of 1 year, and now seeks leave to appeal that sentence.
[1]Crimes Act 1958, s 320.
The offending involved the making of false claims in respect of administrative expenses.
Division 1C of pt 12 of the Electoral Act 2002 provides for administrative expenditure funding to be paid to eligible registered political parties with parliamentary representation and elected members who are not members of a registered party. The funding is to be used to pay ‘claimable expenditure’, which includes expenditure for the administration or management of the activities of the eligible party or elected member.1F[2] Independent elected members are eligible…

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 Northe v The King

Details

AGLC: Northe v The King [2024] VSCA 145
Case: [2024] VSCA 145
Decision Date: 27 June 2024

CaseChat Overview and Summary

Northe applied for leave to appeal against his conviction and sentence for two charges of misconduct in public office. The sentencing judge imposed a total effective sentence of 1 year and 9 months imprisonment, with a non-parole period of 1 year. The applicant argued that the second Verdins principle required that a term of imprisonment not be imposed, that the sentencing judge assumed he would be granted parole contrary to the Sentencing Act 1991, and that the sentence was manifestly excessive. The High Court found that the second Verdins principle did not require that a term of imprisonment not be imposed in this case, and that the sentencing judge’s reference to parole did not contravene the Sentencing Act 1991. The Court found that the sentence reflected the full impact of the mitigating considerations, and that there was no error in imposing a term of imprisonment.

The court considered whether the second Verdins principle required that a term of imprisonment not be imposed. The court found that the second Verdins principle did not require that a term of imprisonment not be imposed in this case. The court found that the principle did not require a term of imprisonment not to be imposed in any particular case, but rather that the sentencer consider the full range of non-custodial options before imposing a term of imprisonment. The court found that the sentencing judge had considered the full range of non-custodial options, and that a term of imprisonment was appropriate in this case.

The court also considered whether the sentencing judge assumed that the applicant would be granted parole contrary to the Sentencing Act 1991. The court found that the sentencing judge’s reference to parole did not relate to the consideration of how long the applicant would spend in custody, and that there was no contravention of the Sentencing Act 1991. The court found that the sentencing judge’s reference to parole was in the context of considering the appropriate length of the non-parole period, and that there was no error in this regard.

Finally, the court considered whether the sentence was manifestly excessive. The court found that the sentence reflected the full impact of the mitigating considerations, and that there was no error in imposing a term of imprisonment. The court found that the sentence was not manifestly excessive, and that the sentencing judge had appropriately balanced the aggravating and mitigating factors in determining the appropriate sentence.

Leave to appeal was refused.

Orders