R v Butter - [2005] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 18 of 2005

THE QUEEN
	v.
LINCOLN MATTHEW BUTTER

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JUDGES:	VINCENT and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2005
DATE OF JUDGMENT:	27 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 184

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Criminal law – Sentencing – Multiple counts – Total effective sentence of three years with a non-parole period of one year – Appeal against sentence imposed on one count only – Error in respect of sentence imposed on subject count – Re-opened sentencing discretion in respect of all counts – Re-sentenced to 24 months’ imprisonment with non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr G.M. Hughan	Ann Valos Criminal Law

VINCENT, J.A.:

I will invite Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

On 8 September 2004 the appellant was arraigned before the County Court at Melbourne and pleaded guilty to one count of armed robbery (count 1), one count of blackmail (count 2), three counts of robbery (counts 3, 6 and 10), one count of common assault (count 4), two counts of false imprisonment (counts 5 and 9), six counts of obtaining property by deception (counts 7, 8 and 13 to 15) and one count of causing injury intentionally (count 11). After hearing a plea in mitigation the judge sentenced the appellant on count 1 to three years' imprisonment, on counts 2 and 3 to three months' imprisonment, on counts 4 and 5 to one month's imprisonment, on count 6 to six months' imprisonment, on count 7 to two months' imprisonment, on counts 8, 9 and 10 to one month's imprisonment, and on counts 11, 13, 14 and 15 to two months' imprisonment, making for a total effective sentence of three years' imprisonment, and his Honour set a non-parole period of twelve months.

The appellant committed the offences over a period of approximately two-and-a-half years, beginning when he was 16 years of age and concluding after he had turned 19 years of age. All of the offences were committed on the same victim - a boy of approximately the same age as the appellant - in effect by way of standover tactics designed to extract stolen moneys from the victim. To begin with, the offences were committed in order to get the victim to give up moneys which he had stolen on his own initiative by means of an internet scam. Later offences were to induce the victim to commit more internet scams in order to obtain more money for the appellant. The appellant also recruited a number of younger boys to assist him to bully and cajole the victim.

The circumstances of the offences are summarised in greater detail in the judge's sentencing remarks as follows:

"2. Count 1. On 11 May 2001 you approached [the victim] who was then aged 16 at Southbank and demanded his wallet and other…

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 Butter

Details

AGLC: R v Butter [2005] VSCA 184
Case: [2005] VSCA 184
Decision Date: 27 July 2005

CaseChat Overview and Summary

The appellant, Butter, was found guilty of multiple counts of serious criminal offences and was sentenced to a total effective term of imprisonment of three years, with a non-parole period of one year. The sentence was imposed following the completion of the sentencing hearing and the passing of the relevant judgment. Butter appealed against the sentence imposed on one particular count of the indictment, arguing that the sentence imposed on that count was erroneous. The appeal focused on the sentence for this specific count, which had a substantial impact on the overall total effective sentence and the non-parole period.

The legal issues the court had to address were whether the appeal against the sentence on one count necessitated a reconsideration of the sentence on all counts, and if so, whether the appellant should be re-sentenced. The court considered whether the error in the sentence for the subject count required the re-opening of the sentencing discretion in respect of all the counts, and if so, whether the re-sentenced terms should differ from the original terms.

The court determined that the error in the sentence for the subject count did indeed require the re-opening of the sentencing discretion in respect of all the counts. The court found that the error significantly impacted the overall sentence, and therefore, the court was entitled to re-exercise its sentencing discretion in respect of all counts. The court subsequently re-sentenced the appellant to a total effective term of imprisonment of 24 months, with a non-parole period of 12 months. This decision addressed the error and ensured that the sentence imposed was fair and appropriate in light of the errors identified.

The final orders of the court were that the sentence imposed on the appellant be quashed and that the appellant be re-sentenced to a total effective term of imprisonment of 24 months, with a non-parole period of 12 months. This re-sentencing addressed the error in the original sentence and ensured that the sentence imposed was just and appropriate in all the circumstances.

Orders