R v Droste - [2009] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 765 of 2008

THE QUEEN
	v
DAVID DROSTE

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JUDGES:	REDLICH and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2009
DATE OF JUDGMENT:	18 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 102

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CRIMINAL LAW – Sentencing – Aggravated burglary, destroying property, making threats to kill and common assault – Serious criminal history – Breach of suspended sentence – Further offending whilst on bail – Appellant sentenced for further offences – Whether sentencing judge erred in fixing non-parole period by reference to a date of eligibility – Whether non-parole period may validly be fixed under s 11 Sentencing Act 1991 by reference to a specified date or whether stated period of years, months and days necessary – Whether sentencing judge fixed a non-parole ‘period’ – Sections 3, 11(1), 13(1) Sentencing Act 1991 discussed – Whether specification of date leads to imprecision and uncertainty and is therefore undesirable – Manifest excess – Weight given to general and specific deterrence – Alcohol and substance abuse – Limited prospects of rehabilitation – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G T Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M D Stanton	Victoria Legal Aid

REDLICH JA
DODDS-STREETON JA:

The appellant, David Droste, appeals from a sentence imposed in the County Court of Victoria at Warrnambool on 26 June 2008, when he was sentenced to a total effective sentence of two years and three months’ imprisonment. The learned sentencing Judge ordered that the appellant ‘… be eligible for release on parole on 30 September 2009’. The principal question raised by this appeal is whether a non-parole period may properly be fixed in those terms pursuant to s 11(1) of the Sentencing Act 1991 (‘the Act’), or whether it is necessary to employ the more conventional expression of years, months or days.

On 6 June 2008, the appellant pleaded guilty to the following six counts on a presentment (W03241994) arising from an incident that occurred on 30 November 2007:

· Count 1 – aggravated burglary contrary to s 77(2) of the Crimes Act1958 (maximum penalty of 25 years’ imprisonment);
· Count 2 – destroying property contrary to s 197(1) of the Crimes Act1958 (maximum penalty of ten years’ imprisonment);
· Counts 3 and 4 – making threats to kill contrary to s 20 of the Crimes Act1958 (maximum penalty of ten years’ imprisonment);
· Counts 5 and 6 – common assault contrary to the common law (maximum penalty of five years’ imprisonment contrary to s 320 of the Crimes Act1958).

On 26 June 2008, the appellant was sentenced as follows:

Count 1 – two years and three months’ imprisonment;
Count 2 – six months’ imprisonment on count 2;
Counts 3 and 4 – 18 months’ imprisonment on each count; and
Counts 5 and 6 – six months’ imprisonment on each count.

His Honour ordered all sentences to be served concurrently, resulting…

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 Droste

Details

AGLC: R v Droste [2009] VSCA 102
Case: [2009] VSCA 102
Decision Date: 18 May 2009

CaseChat Overview and Summary

The appellant, Droste, appealed against his sentence for various offences, including aggravated burglary, destroying property, making threats to kill, and common assault. The case was heard in the Supreme Court of Victoria, where Droste was sentenced to a total of seven years' imprisonment with a non-parole period of four years and eight months. The sentencing judge's decision hinged on Droste's extensive criminal history, his breach of a suspended sentence, and his continued offending while on bail for the current charges. Droste argued that the sentencing judge erred in setting the non-parole period by reference to a specific date of eligibility rather than stating it as a period of years, months, and days. Droste contended that this approach led to imprecision and uncertainty, rendering the sentence invalid.

The court considered whether the sentencing judge could fix a non-parole period by reference to a specified date and whether this was permissible under the Sentencing Act 1991. It examined the meaning of "non-parole period" and whether the statute required a specific period of years, months, and days. The court concluded that the sentencing judge did not err in fixing the non-parole period by reference to a date of eligibility, as it effectively conveyed the intended period. The court further held that the manifest excess principle did not apply in this case, given the weight placed on general and specific deterrence, Droste's alcohol and substance abuse, and his limited prospects of rehabilitation. The appeal was dismissed.

Droste's appeal was dismissed, and the original sentence stood. The court upheld the sentencing judge's approach to fixing the non-parole period by reference to a specified date, finding it valid and not in breach of the Sentencing Act 1991. The court's reasoning emphasised the importance of general and specific deterrence, given Droste's criminal history and ongoing offending, as well as his substance abuse and limited rehabilitation prospects. Consequently, Droste's appeal was unsuccessful, and he remained subject to the original sentence of seven years' imprisonment with a non-parole period of four years and eight months.

Orders