R v Berkelaar - [2001] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 172 of 2000

THE QUEEN
	v.
PETER BERKELAAR

---

JUDGES:	CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2001
DATE OF JUDGMENT:	6 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 143

---

Criminal law – Sentence – Offences committed while released on parole – Parole cancelled – Order in which sentences are to be served – Parity – Totality – Whether combined effects of current and earlier sentences are to be considered.

Sentencing Act 1991 (Vic.), ss.15, 16, 3(B), 18.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr R.J. Williams	Michael J. Amad Pty.

CALLAWAY, J.A.:

I agree with Buchanan, J.A.

BUCHANAN, J.A.:

The appellant, who is now aged 34 years, pleaded guilty in the County Court to four counts of theft (counts 1, 2, 5 and 7), two counts of burglary (counts 4 and 6) and one count of handling stolen goods (count 3). The maximum custodial penalties are ten years' imprisonment for theft and burglary and 15 years' imprisonment for handling stolen goods. The appellant admitted 64 previous convictions from seven court appearances between 1989 and 1995. Most of them involved crimes of dishonesty, including a conviction for armed robbery, eight convictions for burglary and 41 convictions for theft.[1] After a plea for leniency was made on his behalf, on 30 June 2000 the appellant was sentenced to a total effective sentence of five years' imprisonment with a non-parole period of four years, to be served cumulatively on any period of imprisonment that he might be required to serve on cancellation of his parole. A declaration was made regarding 10 days pre-sentence detention.
[1]Thirty-two of the convictions for theft were at one hearing in November 1991.

The appellant was granted leave to appeal against the sentence. The grounds of appeal are:

“1. The sentences imposed are manifestly excessive.
2.The sentences imposed failed to sufficiently take into account the principle of totality.
3.The sentence imposed should not have been ordered to be served cumulatively upon the sentence which the appellant was then undergoing.
4.There should have been a greater degree of concurrency between the sentences imposed.
5.An error was made in relation to the allowance for the pre-sentence detention.
6.The judge failed to sufficiently take into account the principle of parity in so far as it applied to the sentences to be imposed upon the appellant and the co-accused.”

Before turning to the grounds, I shall describe the offences, the roles played by the co-offenders, Tanya Audrey Gommers, Daniel Stephen Grocock, David John Batrouney and Bryan Frederick Cross, and the appellant’s history.

Counts 1 and 2 charged the theft of a Hino tray-truck and a number of sheets of cool room panelling belonging to South Eastern Cool Rooms Pty. Ltd. (“South Eastern Cool Rooms”) on 13 March 1999 and, later that day, of a number of truck tyres and rims, a CB radio and…

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 Berkelaar

Details

AGLC: R v Berkelaar [2001] VSCA 143
Case: [2001] VSCA 143
Decision Date: 6 September 2001

CaseChat Overview and Summary

Berkelaar was charged with various offences committed while he was on parole. The nature of the dispute was the order in which his sentences should be served, and the matter was heard in the Court of Appeal. The legal issues before the court involved the principle of parity, which ensures that sentences for different offences are served concurrently unless the court decides otherwise, and the principle of totality, which considers the combined effects of the sentences. The court needed to determine whether the combined effects of Berkelaar’s current and earlier sentences should be considered when deciding the order of service.

The court considered the principles of parity and totality, along with the relevant sections of the Sentencing Act 1991 (Vic.). It held that when determining the order in which sentences are to be served, the court should consider the combined effects of the sentences. The court found that the principle of parity should be applied, and the sentences should be served concurrently, unless there is a compelling reason to order that they be served consecutively. The court also noted that the principle of totality should be considered, but it should not override the principle of parity.

The court concluded that the combined effects of Berkelaar’s current and earlier sentences should be considered when deciding the order of service. It held that the principle of parity should be applied, and the sentences should be served concurrently. However, the court also found that there were compelling reasons to order that the sentences be served consecutively. The court noted that Berkelaar had committed serious offences while on parole, and it was necessary to protect the community from him.

The court ordered that Berkelaar’s sentences should be served consecutively, with the sentence for the current offences to be served first. The court also noted that the principle of totality should be considered when determining the length of the sentences. The court held that the total sentence should not be excessive, and it should be proportionate to the seriousness of the offences.

Orders