Nov v The Queen - [2020] VSCA 11

COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0127

MARK NOV	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 January 2020
DATE OF JUDGMENT:	7 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 11
JUDGMENT APPEALED FROM:	[2019] VCC 732 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Combination sentence imposed – Calculation of pre-sentence detention (‘PSD’) – While on remand applicant served sentence for unrelated offending – Period of separate sentence erroneously counted as PSD – Power to impose combination sentence subject to limit on period of imprisonment – Corrected PSD figure caused limit to be exceeded – Sentence unlawful – Resentenced – Period of custody reduced, community correction order unchanged – R v Broad [1999] 3 VR 31; [1999] VSCA 149 applied – Director of Public Prosecutions v TY[No 2] (2009) 24 VR 705; [2009] VSCA 226, Younger v TheQueen [2017] VSCA 199 considered – Sentencing Act 1991 (Vic) ss 18(1), 44(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Lenthall	Papa Hughes Lawyers
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Acting Solicitor for Public Prosecutions

MAXWELL P
WHELAN JA:

Summary

Ordinarily, an error in the calculation of pre-sentence detention (‘PSD’) under s 18(1) of the Sentencing Act 1991 (the ‘Act’) is not a sentencing error. The error does not affect the validity of the sentencing decision itself since, as this Court said in Director of Public Prosecutions v TY [No 2],[1] a declaration of PSD is not part of the sentence imposed but rather an official statement of time served under the sentence.[2]
[1](2009) 24 VR 705; [2009] VSCA 226 (‘TY’).
[2]Ibid [50]–[52].

There is, however, an important exception to that rule, where the sentencing court is considering the imposition of a ‘combination sentence’ — that is, a term of imprisonment combined with a community correction order (‘CCO’). The length of PSD directly affects the Court’s power to impose such a sentence since, under s 44(1), the Court may only impose a CCO in addition to a term of imprisonment

if the sum of all of the terms of imprisonment to be served (after deduction of any period of custody that under s 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.

In the present case, the judge sentenced the applicant to 598 days’ imprisonment, together with a 3 year CCO. The PSD was declared to be 233 days and, after deduction of that period in accordance with s 44(1), the term of imprisonment was 365 days. The requirements of s 44(1) thus appeared to have been complied with.

In this Court, the applicant has contended — and the Crown has conceded —that the PSD calculation was not in accordance with the decision of this Court in R v Broad.[3] It included a period of 31 days which, upon the…

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 Nov v The Queen

Details

AGLC: Mark Nov v The Queen [2020] VSCA 11
Case: [2020] VSCA 11
Decision Date: 7 February 2020

CaseChat Overview and Summary

The applicant appealed against a sentence imposed by the County Court of Victoria, challenging the calculation of the pre-sentence detention. The applicant was sentenced to a combination of imprisonment and a community correction order, but the applicant argued that the court had miscalculated the pre-sentence detention, leading to an unlawful sentence. The applicant served time on remand for the current offence and for unrelated offending, and the Court of Appeal was asked to determine whether the sentence was correctly calculated and if it should be altered.

The Court of Appeal considered whether the sentence was correctly calculated and if it should be altered. The Court of Appeal needed to determine whether the period of detention for the unrelated offending was properly excluded from the calculation of the pre-sentence detention, and whether the sentence imposed was unlawful due to the miscalculation. The Court of Appeal also had to consider the appropriate remedy if the sentence was found to be unlawful.

The Court of Appeal found that the sentence was unlawful due to the miscalculated pre-sentence detention. The Court of Appeal held that the period of detention for the unrelated offending should not have been included in the calculation of the pre-sentence detention, and that the inclusion of this period caused the limit on the period of imprisonment to be exceeded. The Court of Appeal then applied the principles set out in Director of Public Prosecutions v TY [No 2] and Younger v The Queen, and found that the sentence was unlawful. The Court of Appeal reduced the period of custody and left the community correction order unchanged.

Orders