R v Aleksov - [2003] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 98 of 2002

THE QUEEN

ANTON ALEKSOV

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JUDGES:	CALLAWAY and BATT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2003
DATE OF JUDGMENT:	9 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 44	1^st Revision - 11 June 2003

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Criminal law – Sentencing – Totality – Appellant sentenced to six-and-a-half years' imprisonment on four counts – Suspended sentence of three years' imprisonment also breached - Suspended sentence restored and total cumulation directed, making a total effective sentence of nine-and-a-half years' imprisonment - Non-parole period of five-and-a-half years fixed – Total cumulation held to offend principle of totality notwithstanding prima facie rule in Sentencing Act 1991, s.31(6)(b) – Discretion in relation to six-and-a-half year sentence not re-opened – In any event that sentence held to be appropriate – Appellant re-sentenced to a total of seven-and-a-half years' imprisonment with a non-parole period of five years - Sentencing Act 1991, ss.5, 6E, 16, 31.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr T.E. Wraight	Amad & Amad Solicitors

CALLAWAY, J.A.:

The appellant, who is now aged 30, pleaded guilty in the County Court to a presentment containing one count of armed robbery (count 1), one count of aggravated burglary (count 2), one count of common assault (count 3) and one count of robbery (count 4). The maximum custodial penalty for armed robbery and aggravated burglary is 25 years' imprisonment. For common assault it is 5 years' imprisonment and for robbery 15 years' imprisonment. The appellant admitted three findings of guilt and 105 previous convictions from 18 court appearances between February 1990 and December 1999. On the last such occasion he had been convicted of robbery and sentenced to three years' imprisonment, which was wholly suspended for an operational period of three years. That suspended sentence was breached on 31^st October and 14^th November 2000, when the appellant was found in possession of heroin, and the charge and summons arising from those breaches were before the court too. The four offences on the presentment were also committed within the operational period.

After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant to five years' imprisonment on count 1, two years' imprisonment on count 2, twelve months' imprisonment on count 3 and three years' imprisonment on count 4. Her Honour ordered that six months of the sentence imposed on count 2 and twelve months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence, thus far, of six-and-a-half years' imprisonment. In relation to the breaches of the suspended sentence in October and November 2000 which her Honour had imposed, she ordered that the sentence of three years' imprisonment be wholly restored and “confirmed” that the restored sentence was to be served cumulatively upon that term…

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 R v Aleksov

Details

AGLC: R v Aleksov [2003] VSCA 44
Case: [2003] VSCA 44
Decision Date: 9 April 2003

CaseChat Overview and Summary

In the case of R v Aleksov, the appellant was convicted on four counts and sentenced to six-and-a-half years' imprisonment. The appellant had also been given a suspended sentence of three years' imprisonment, which was later breached. The case reached the court of appeal, where the appellant challenged the cumulative effect of the sentences. The court was required to determine whether the total cumulation of the sentences complied with the principle of totality and the relevant provisions of the Sentencing Act 1991.

The legal issues centred on the application of the principle of totality in sentencing and the proper interpretation of section 31(6)(b) of the Sentencing Act 1991. The court had to decide if the cumulative effect of the sentences was appropriate and whether the total cumulation contravened the principle of totality. Furthermore, the court needed to consider if the six-and-a-half year sentence should be re-examined and if the non-parole period was correctly fixed.

The court held that the total cumulation of the sentences, amounting to nine-and-a-half years' imprisonment, did indeed contravene the principle of totality. Despite the prima facie rule in section 31(6)(b) of the Sentencing Act 1991, the court found that the cumulative effect of the sentences was excessive. The court did not re-open the discretion in relation to the six-and-a-half year sentence but deemed it appropriate in the circumstances. Ultimately, the court re-sentenced the appellant to a total of seven-and-a-half years' imprisonment with a non-parole period of five years.

In conclusion, the court of appeal quashed the original sentence and imposed a new sentence of seven-and-a-half years' imprisonment with a non-parole period of five years. The court emphasised the importance of adhering to the principle of totality in sentencing and the need to balance the severity of the sentences with the overall punishment imposed on the appellant.

Orders