R v Bult - [2008] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 404 of 2008

THE QUEEN
	v
WAYNE JOHN BULT

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JUDGES:	WARREN CJ, VINCENT, DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2008
DATE OF JUDGMENT:	11 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 227

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CRIMINAL LAW – Sentencing –– Totality principle – One count of burglary, two counts of theft and one count of aggravated burglary – Total effective sentence of three years and six months’ imprisonment with non-parole period of two years’ imprisonment - Appellant’s long history of prior convictions – Mitigating factors – Appeal allowed.

CRIMINAL LAW – Sentencing –– Totality principle – Cancellation of parole by Parole Board on morning of sentencing – Whether sentencing judge properly took into account cancellation of parole – Crown concession – R v Alashkar – R v Piacentino - Sentencing Act 1991 s 5(2AA).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Victorian Legal Aid
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions

WARREN CJ:

Wayne John Bult pleaded guilty to one count of burglary, two counts of theft and one count of aggravated burglary in the County Court on 17 October 2007. The circumstances of the offending were as follows.

On 19 April 2007 at approximately 8.30 am, a woman left her home to go to work. As she left, she set the home alarm. Some time that afternoon, the appellant forced entry to the premises either through a locked window or door. He stole a mobile telephone, a gold ring, a wallet, and two credit cards, together valued at approximately $7,000.

These events comprise the burglary, Count 1, and one of the theft counts, Count 2.

The next day, on 20 April 2007 at approximately 8.45 am, the appellant attended the home of another, this time a man. He entered the house and moved through several rooms stealing a camera and a leather wallet containing credit cards. The appellant went upstairs and entered the bedroom where the male occupant was talking on the telephone. The occupant recognised the appellant as a person who had attended his house approximately one month earlier claiming to be a photographer and enquiring about using the house garden for a photo shoot.

Upon being seen, the appellant fled the house and the occupant gave chase, shortly catching up with the appellant and reclaiming some of his property. The appellant continued to flee, yelling that he knew where the occupant lived. He fled on a tram but was arrested shortly thereafter.

These events comprise the aggravated burglary count, Count 3, and the other theft count, Count 4.

Burglary and theft both carry a maximum sentence of ten years’ imprisonment. Aggravated burglary carries a maximum sentence of 25 years’ imprisonment.

On 14 November 2007, the appellant was sentenced in the County Court as follows: Count 1, 18 months’ imprisonment; Count 2, six months’ imprisonment; Count 3, two years and six months’ imprisonment; Count 4, six…

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 Bult

Details

AGLC: R v Bult [2008] VSCA 227
Case: [2008] VSCA 227
Decision Date: 11 November 2008

CaseChat Overview and Summary

The appellant, Bult, was convicted on one count of burglary, two counts of theft, and one count of aggravated burglary. Bult appealed against his sentence, which comprised a total effective term of imprisonment of three years and six months, with a non-parole period of two years. The primary legal issue before the court was whether the sentencing judge appropriately considered the cancellation of parole by the Parole Board on the morning of sentencing. The appellant argued that the judge failed to consider this cancellation, which would have led to a different sentencing outcome.

The court examined the sentencing principles, particularly the totality principle, which requires consideration of all prior convictions and the overall punishment for all offences. The court referenced R v Alashkar and R v Piacentino to determine whether the cancellation of parole was a relevant factor for the sentencing judge to consider. The Crown conceded that the sentencing judge should have taken the cancellation into account. The court found that the judge’s failure to consider this factor constituted a significant error in the sentencing process, leading to an overestimation of the appropriate penalty.

Given the identified error, the court allowed the appeal and remitted the matter to the sentencing judge for reconsideration. The court noted the Crown's concession that the sentencing judge should have taken the cancellation of parole into account. The court did not specify the new sentence but directed the sentencing judge to reassess the appropriate term and non-parole period, considering all relevant factors, including the cancellation of parole. The court emphasised the importance of adhering to the totality principle in sentencing.

Orders