R v Christopher - [2007] VSCA 290

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 65 of 2007

THE QUEEN
	v
PAUL CHRISTOPHER

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JUDGES:	CHERNOV, VINCENT and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2007
DATE OF JUDGMENT:	27 November 2007
DATE OF FURTHER ORDER:	12 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 290

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CRIMINAL LAW – Sentencing – Sentenced to 24 months for aggravated burglary (count 1), 18 months for causing serious injury intentionally (count 2), and 12 months for causing injury intentionally (count 3) – Orders for cumulation resulted in a total effective sentence of four years, with non-parole period of two and a half years – Co-offender previously sentenced by another judge to longer individual sentences on count 2 (24 months) and count 3 (18 months), but to the same total effective sentence – Whether sentencing judge offended the principle of parity by cumulating greater proportion of lower individual sentences to reach the same total effective sentence – Appeal allowed – Individual sentences re-imposed, but orders for cumulation decreased – New total effective sentence of three and a half years, with a non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	McNamaras

CHERNOV JA:

I will ask Neave JA to deliver the first judgment.

NEAVE JA:

The appellant, Paul Christopher, pleaded guilty to one count of aggravated burglary (count 1), one count of intentionally causing serious injury (count 2) and one count of intentionally causing injury (count 3). He was sentenced by a judge in the County Court to two years' imprisonment on count 1, 18 months' imprisonment on count 2 and 12 months' imprisonment on count 3. The learned sentencing judge directed that 15 months of the sentence on count 2 and nine months of the sentence on count 3 were to be served cumulatively on the sentence imposed on count 1. This resulted in a total effective sentence of four years. A non-parole period of two-and-a-half years was fixed. On 31 August 2007, this Court granted the appellant leave to appeal against the sentences.

The offences

The offences occurred in the following circumstances. The appellant was a friend of the victims, Ms Ikram Abadid and her de facto partner, Mr Andrew Fischer. Prior to committing the offences, the appellant lent Ms Abadid and Mr Fischer some money and cigarettes.[1] On 22 February 2005, the appellant telephoned the victims and demanded the repayment of the money. Ms Abadid said she had no money but would pay him back as soon as her Centrelink payment came through. As a result, the appellant became angry and threatened that he would bring his half-brother, Kevin Nuttall, with him to the victims' flat to beat up or even kill both of them. Mr Nuttall grabbed the phone and made similar threats.
[1]The Crown opening described the debt as $50 and two packets of cigarettes, but elsewhere the appellant said the debt…

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 Christopher

Details

AGLC: R v Christopher [2007] VSCA 290
Case: [2007] VSCA 290
Decision Date: 27 November 2007

CaseChat Overview and Summary

The appellant, Christopher, was convicted of aggravated burglary, causing serious injury intentionally, and causing injury intentionally. He was sentenced by a magistrate to 24 months for the first count, 18 months for the second count, and 12 months for the third count. The orders for cumulation resulted in an effective sentence of four years, with a non-parole period of two and a half years. The appellant's co-offender was sentenced by another judge to 24 months for the second count and 18 months for the third count, also resulting in a total effective sentence of four years. The issue before the court was whether the sentencing judge had offended the principle of parity by cumulating a greater proportion of the lower individual sentences to reach the same total effective sentence.

The court found that the sentencing judge erred in law by not applying the principle of parity. The principle of parity requires that co-offenders who commit the same type of offence should receive sentences of a similar gravity, and the proportion of the sentence attributable to each offence should be the same. The court noted that the co-offender's individual sentences were higher for the second and third counts, but the total effective sentence was the same. The court held that the sentencing judge should have imposed the same proportion of the sentences for the second and third counts as the co-offender received, resulting in a lower total effective sentence for the appellant. The appeal was allowed, and the individual sentences were re-imposed, but the orders for cumulation were decreased. The new total effective sentence was three and a half years, with a non-parole period of two years.

This case highlights the importance of applying the principle of parity in sentencing co-offenders. The court emphasised that the principle of parity is not a rigid rule but a guide to ensure that co-offenders receive sentences of a similar gravity. The court also noted that the principle of parity does not require identical sentences for co-offenders, but rather that the proportion of the sentences for each offence should be similar. This case provides guidance to sentencing judges on how to apply the principle of parity in cases involving co-offenders.

Orders