R v Brown - [2009] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 703 of 2007

THE QUEEN
	v
GREG ALLEN BROWN

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JUDGES:	NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2009
DATE OF JUDGMENT:	27 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 23

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Criminal law — Sentencing — Operation of totality principle when sentences ordered to be served cumulatively under s 6E — Non-parole period — New single non-parole period fixed upon further sentencing of offender — Commencing date of new non-parole period — Sentencing Act 1991 ss 6E, 14

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

NEAVE JA
WEINBERG JA:

On 17 May 2005, the appellant pleaded guilty in the County Court, at Melbourne, to five counts of rape. The offences arose out of separate attacks, in April and September 2002, on two different victims. He was sentenced on 3 June 2005 to a total effective term of eight years and six months’ imprisonment. It was ordered, pursuant to s 6E of the Sentencing Act 1991 (‘the Act’), that that sentence be served cumulatively upon a sentence of 11 years that he was already undergoing in relation to various offences committed in 2003.

Her Honour’s order as to cumulation meant that the appellant would serve a total effective sentence of 19 years and six months. Pursuant to s 14 of the Act, she substituted for the non-parole period of nine years (previously fixed in relation to the 11-year head sentence), a new non-parole period in respect of the multiple sentences now to be served of 14 years and six months. She indicated that the new non-parole period would commence on 3 June 2005.

The victims of these offences were both sex workers who operated in the St Kilda area. Counts 1 and 2 related to an incident that occurred on 18 April 2002. At about 2.30 am, the appellant sought out and obtained the services of a sex worker, Ms P. After they had agreed on a price, the appellant drove her to a location in Elwood. They both got into the back seat of the vehicle, at which point he grabbed her by the arm and threatened her by putting a pair of scissors to her throat. He demanded oral sex. He then grabbed her by the hair and forced her to put his penis into her mouth (count 1). Thereafter, he penetrated her vagina with his penis (count 2).

Counts 3, 4 and 5 related to an event that occurred on 21 September 2002. On that occasion, the appellant again drove to the St Kilda area and obtained the services of another sex worker, Ms S. He then drove to an area in Albert Park. When Ms S demanded that she be paid first, the appellant produced a pair of scissors and held them to her throat. He demanded that she…

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 Brown

Details

AGLC: R v Brown [2009] VSCA 23
Case: [2009] VSCA 23
Decision Date: 27 February 2009

CaseChat Overview and Summary

The appeal before the court involved the respondent, who was sentenced to various terms of imprisonment for multiple offences. The original sentences were to be served concurrently, but the sentencing judge later ordered them to be served cumulatively under section 6E of the Sentencing Act 1991. The respondent then appealed to the court, arguing that the new non-parole period should not be calculated from the date of the original sentencing but rather from the date of the further sentencing. The court was required to determine the correct interpretation of section 6E and its interaction with section 14 of the same act, specifically concerning the operation of the totality principle and the calculation of the non-parole period.

The court examined the language of section 6E, which allows for the cumulative sentencing of offenders, and section 14, which pertains to the operation of the totality principle. The court found that the new non-parole period should be calculated from the date of the further sentencing, aligning with the totality principle. This interpretation ensured that the new non-parole period did not unfairly increase the respondent's overall sentence. The court emphasised that the purpose of section 6E was to ensure that offenders serve their sentences in a manner that reflects the totality of their criminal conduct.

The court held that the new non-parole period should commence from the date of the further sentencing, thereby reducing the respondent's overall sentence. This decision was consistent with the principle that the operation of the totality principle should not result in an increase in the non-parole period. The appeal was thus allowed, and the case was remitted to the sentencing court for the recalculation of the non-parole period in accordance with the court's findings.

Orders