R v Chamberlain - [2001] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.114 of 2001

THE QUEEN
	v.
PAUL DAVID CHAMBERLAIN

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JUDGES:	BROOKING, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2001
DATE OF JUDGMENT:	13 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 159

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CRIMINAL LAW - Sentencing - Appellant serving sentence of life imprisonment - Released on parole - Later convictions for trafficking in drugs - Sentences made concurrent - No non-parole period fixed for later offences - Appeal allowed - Non-parole period fixed - Sentencing Act 1991 (No.49/1991) s.11(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P. F. Tehan, QC	Balmer & Associates

BROOKING, J.A.:

I will ask Charles and Chernov, JJ.A. to deliver their judgments before I deliver mine.

CHARLES, J.A.:

On 27 February 2001 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging one count of trafficking in cannabis. Then, on 6 April the appellant was presented in the County Court at Melbourne on a further presentment and pleaded guilty to six counts, a further count of trafficking in cannabis (count 1), one count of being a prohibited person in possession of a firearm (count 2), one count of theft (count 3), two counts of falsification of documents (counts 4 and 5) and one count of making a false statement (count 6). The offence of trafficking was alleged against s.71 of the Drugs Poisons and Controlled Substances Act 1991, and the maximum penalty was 15 years' imprisonment. The maximum penalty for possession of a firearm was seven years' imprisonment, for theft and falsification of documents was 10 years' imprisonment, and for making a false statement was two years' imprisonment or a fine of $5,000.

The hearing of the plea in relation to the offences on both presentments was conducted on 6 and 23 April before the same judge. The appellant admitted four prior convictions from three previous court appearances, including convictions for murder and attempted murder in 1982 and a conviction for intentionally causing injury in 1991. During the plea evidence was called on behalf of the appellant from Ms Caroline Whitman, and a number of supportive references were tendered as well as certificates of completion of various courses.

On 9 May the appellant was sentenced on count 1 of the first presentment to 15 months' imprisonment, on count 1 of the second to 2 years' imprisonment, and on counts 2, 3, 4, 5 and 6 of the second to 12 months', 9 months', 6 months' and 6 months' imprisonment and a fine of $500 respectively. The sentencing judge made

orders in relation to the second presentment for cumulation of 6 months of the sentence imposed on count 2, 6 months of the sentence imposed on count 3, and 3 months of the sentence imposed on count 4, making a total effective sentence of 3 years and 3 months' imprisonment. His Honour did not fix a non-parole…

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 Chamberlain

Details

AGLC: R v Chamberlain [2001] VSCA 159
Case: [2001] VSCA 159
Decision Date: 13 September 2001

CaseChat Overview and Summary

In the matter of R v Chamberlain, the appellant was serving a life sentence for a previous conviction but was released on parole. Subsequent to his release, the appellant was convicted of additional drug trafficking offences. The court ordered that the sentences for these later convictions be made concurrent with the existing sentence, but did not fix a non-parole period for the later offences. The appellant appealed the decision, arguing that a non-parole period should have been set. The case was heard by the court, which was required to consider whether the absence of a non-parole period for the later convictions was in accordance with the law and whether it was appropriate in the circumstances.

The court examined the relevant provisions of the Sentencing Act 1991, specifically section 11(1)(b), which provides that a court must fix a non-parole period for an offender sentenced to imprisonment for an offence. The court considered whether the failure to fix a non-parole period for the later convictions was an error of law and whether it was necessary to do so in the interests of justice. The court held that the absence of a non-parole period was indeed an error of law and that it was necessary to fix a non-parole period for the later convictions in order to comply with the statutory requirement. The court allowed the appeal and fixed a non-parole period for the later offences.

In conclusion, the court found that the failure to fix a non-parole period for the appellant's later convictions was an error of law and that it was necessary to do so in order to comply with the requirements of the Sentencing Act 1991. The appeal was allowed and a non-parole period was fixed for the later offences. The appellant's sentence was amended accordingly. The court's decision highlights the importance of ensuring that all sentencing requirements are met in order to avoid errors of law and to ensure that justice is served.

Orders