SENTENCE – Whether sentence manifestly excessive – Re-offending while on parole – No action taken by Parole Board by time of sentencing – Whether evidence of subsequent cancellation of parole admissible as “fresh evidence” on appeal – Totality principle relevant where Parole Board has cancelled parole after sentencing – Consideration of totality principle requires regard to be had to the legislative intention of s 16(3B) of the Sentencing Act 1991 – Appeal dismissed.
R v Tayar
SENTENCE – Whether sentence manifestly excessive – Sentencing Act 1991 s 16(3B) – Re-offending while on parole – No action taken by Parole Board by time of sentencing – Whether evidence of subsequent cancellation of parole by Parole Board admissible as “fresh evidence” on appeal – Totality principle – Appeal upheld.
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APPEARANCES:
Counsel
Solicitors
R v Alashkar
For the Crown
Mr K G Gilligan
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Ms F L Dalziel
Victoria Legal Aid
R v Tayar
For the Crown
Mr T Gyorffy
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Mr D A Dann
Ann Valos
VINCENT JA, REDLICH JA, KELLAM AJA:
Both current appeals are concerned with sentences which were imposed before the Parole Board had determined to cancel orders for parole made in relation to earlier sentences imposed upon the respective appellants. The primary question which arises in each case is whether this court may now take into account the additional period of incarceration to which the appellant has become subject, and if it may do so, whether it considers, having regard to the principle of totality, that the sentence imposed below should be varied to avoid a miscarriage of justice. A second question, which arises as a consequence of the order pronounced in Tayar’s case, is whether the sentencing judge can make an order for cumulation or concurrency pursuant to s 16(3B) of the Sentencing Act1991 in circumstances where parole has not been cancelled.
In R vPiacentino[1] it was held that where an offence was committed whilst the offender was on parole so that its commission constituted a breach of parole but at the time at which sentence was imposed no determination had been made by the Parole Board, the sentencing judge could not take into account the possibility that the offender might have been required to serve the balance of the head sentence earlier fixed. By contrast, where at the time of sentence for the offence which constitutes the breach of parole, the parole board has taken action and cancelled the parole, the sentencing judge is bound to have…
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.
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Details
AGLC
R v Alashkar [2007] VSCA 182
Case
[2007] VSCA 182
Decision Date
CaseChat Overview and Summary
The appeal by the appellant against his sentence involved several key issues. The appellant contested the severity of his sentence, arguing it was manifestly excessive. He further contended that the sentencing judge failed to consider the impact of s 16(3B) of the Sentencing Act 1991 and erred in taking into account evidence that suggested he had a knife during the commission of the offence, which would have made his crime more serious. The appellant also sought to introduce fresh evidence related to the actions of the Adult Parole Board following his parole breach, arguing this evidence should have influenced the sentencing decision.
The court was tasked with determining whether the sentence imposed was manifestly excessive and if the sentencing judge correctly applied s 16(3B) of the Sentencing Act 1991. Additionally, the court needed to decide if the evidence of the knife was admissible and whether the totality principle should be applied in light of the Parole Board's subsequent actions. The court considered the legislative intent behind s 16(3B) and the implications of the Parole Board's decision made post-sentencing.
The court found that the sentence was not manifestly excessive, taking into account the totality principle which required consideration of the Parole Board's actions after the sentencing. The court held that the evidence of the knife was properly admitted as it was relevant to the nature of the crime. The court also concluded that the sentencing judge correctly applied the principles of s 16(3B) of the Sentencing Act 1991. Given these findings, the appeal was dismissed.
In summary, the appeal against the sentence was dismissed, affirming the original sentence imposed by the lower court. The court's decision emphasised the importance of considering the totality principle and the legislative intent behind the Sentencing Act in reaching its conclusion.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Having been granted leave to do so, the appellant now appeals against his sentence upon the grounds that:“1.The sentence is manifestly excessive.2.The learned sentencing judge failed to take into account the effect of s 16(3B) of the Sentencing Act 1991.[19]3.The learned sentencing judge erred by finding or having regard to evidence that a knife was with the other articles identified as coming from the store (paragraph [5]). The inference to be drawn from this evidence was that the appellant had the knife in his possession at the time of the offence, which, if true, would have rendered the appellant liable to conviction for a more serious offence.4.The appellant seeks to lead fresh evidence, in the form of affidavit material, as to the action taken by the Adult Parole Board in respect to the breached parole period, so as to demonstrate that a lesser sentence should now be passed.”[20][19]This ground was abandoned subsequent to the handing down of Piacentino on 23 March 2007.[20]The appellant’s full statement of grounds was amended by leave and granted by the Court on 15 January 2007. The Background At approximately 6.15 am on 3 October 2004, the appellant entered a 7-Eleven store situated in Station Street, Fairfield. He was wearing a black jacket, black pants and black dress shoes. His face was covered with what appeared to be a piece of yellow coloured clothing and he had some material or another piece of clothing draped over one of his arms. The attendant on duty was unpacking newspapers outside the console area when the appellant approached him, pointing his cloth-covered arm in his direction, as if he had a weapon, and demanding that the attendant open the cash register and give him money. Unsurprisingly, the victim was frightened and acceded to his demands. The appellant took all the notes from the register and placed them in a plastic bag. He then demanded cigarettes which the attendant placed into plastic bags. The appellant made a further demand for cash, saying, “Where’s all the money? Where’s all the money?” all the while making gestures with the hand hidden by the draped material. The attendant gave him coins from a change box, coins in small plastic bags and a cloth bag containing cash. The appellant took the money and cigarettes and ran from the premises. As he did so, he was observed by a witness, who immediately rang the police. A short while later the appellant saw this person watching him and gestured that he had some sort of weapon and mouthed the words, “Piss off”. The appellant was arrested not long afterwards in the rear yard of a nearby house. The money and cigarettes were recovered and a knife was located nearby. Fifty five packets of cigarettes valued at $761.00 and a total amount of $685.00 was stolen. We now turn to the grounds of the appeal. In support of this ground, it is submitted by counsel for the appellant that the judge fell into error in having regard to evidence that a knife was found with other articles identified as having come from the store.