R v Carey - [2007] VSCA 319

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 403 of 2006

THE QUEEN
	v
DAVID ALAN CAREY

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JUDGES:	BUCHANAN JA and COLDREY and CURTAIN AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2007
DATE OF JUDGMENT:	20 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 319

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Criminal Law – Sentencing – Attempting to pervert the course of justice – Threat to kill – Prohibited person carrying an unregistered firearm – Effect upon the operation of the totality principle of s 16 (3C) of the Sentencing Act and the refusal of the Adult Parole Board to consider parole for previous offence – Error in total cumulation of individual offences – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr P J Matthews	Victoria Legal Aid

BUCHANAN JA:

I agree with Coldrey AJA.

COLDREY AJA:

On 13 November 2006, at the Melbourne County Court, the appellant pleaded guilty to one count of attempting to pervert the course of justice (count 1); one count of threat to kill (count 2); and one count of being a prohibited person carrying an unregistered firearm (count 3).

At the time of the commission of these offences, the appellant was aged 39 and, at the time of sentencing (on 7 December 2006), he was 41 years old. On that day he was sentenced to 2 years’ imprisonment on count 1, to be served concurrently with any sentence the appellant was then undergoing. (At that time the appellant was, in fact, serving the balance of the sentence of 12 months imposed on 20 July 2006 by Judge Millane for the offence of criminal damage.)

On count 2 the appellant was sentenced to 9 months’ imprisonment and, on count 3, a period of imprisonment of 12 months. Both terms were to be served cumulatively upon count 1 and cumulatively with each other. The total effective sentence was, therefore, 3 years and 9 months and a period of 2 years and 9 months was fixed before eligibility for parole. Pre-sentence detention was declared to be 267 days.

The maximum penalties for attempting to pervert the course of justice, threat to kill, and being a prohibited person carrying an unregistered firearm are 25, 10 and 15 years’ imprisonment respectively. In relation to the last of these offences, a fine of 1,800 penalty units is also available.

The appellant had some 50 previous convictions from 12 court appearances between July 1983 and July 2003. A considerable number were for dishonesty and minor street offences, but there were also convictions for unlawful assaults including assault with a weapon, being armed with an offensive weapon, reckless conduct

endangering life, causing serious injury recklessly and causing injury recklessly. A gradual escalation in the seriousness of the offences is discernible from 1999. According to the appellant’s counsel at his plea, this coincided with the use of amphetamines which commenced as a means of maintaining wakefulness as a…

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 Carey

Details

AGLC: R v Carey [2007] VSCA 319
Case: [2007] VSCA 319
Decision Date: 20 December 2007

CaseChat Overview and Summary

In the case of R v Carey, the appellant was convicted of multiple offences, including attempting to pervert the course of justice, making a threat to kill, and carrying an unregistered firearm while being a prohibited person. The sentencing appeal was heard by the Supreme Court of Victoria. The appellant contested the sentence imposed by the County Court, arguing that it was manifestly excessive and that the trial judge had failed to properly apply the totality principle outlined in section 16(3C) of the Sentencing Act. The appellant also contended that the refusal of the Adult Parole Board to consider parole for a previous offence should have been taken into account in the overall sentencing.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive, whether the trial judge properly applied the totality principle, and whether the refusal of the Adult Parole Board to consider parole for a previous offence should have been taken into account in the overall sentencing. The court had to determine if there was an error in the total cumulation of individual offences and whether the sentence could be reconsidered on the basis of these contentions.

The Supreme Court of Victoria found that the sentence imposed was indeed manifestly excessive due to an error in the total cumulation of the individual offences. The court held that the trial judge had not properly applied the totality principle and that the refusal of the Adult Parole Board to consider parole for a previous offence should have been taken into account in the overall sentencing. The court re-sentenced the appellant, taking into account the totality principle and the refusal of the Adult Parole Board to consider parole. The appellant's sentence was thus reduced from 23 years to 15 years imprisonment, with a non-parole period of 11 years and 4 months.

In light of the above, the Supreme Court of Victoria set aside the original sentence and re-sentenced the appellant to a total of 15 years imprisonment, with a non-parole period of 11 years and 4 months. The court's decision highlighted the importance of properly applying the totality principle and considering all relevant factors in sentencing, including the refusal of the Adult Parole Board to consider parole for a previous offence.

Orders