R v Fiddes
[2003] VSCA 210
•8 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 303 of 2002
| THE QUEEN |
| v. |
| MARK RONALD FIDDES |
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JUDGES: | CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 December 2003 | |
DATE OF JUDGMENT: | 8 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 210 | 1st Revision: 6 February 2004 |
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Criminal Law - Sentencing - Suspended sentence - Breach - Restored term of suspended sentence - No non-parole period fixed - Power of court to set non-parole period when suspended sentence restored - Non-parole period of nine months ordered - Sentencing Act 1999, ss.11(1), 31(5).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M. Croucher | Victoria Legal Aid |
CHARLES, J.A.:
I call on Chernov, J.A. to give the first judgment.
CHERNOV, J.A.:
The applicant, Mark Ronald Fiddes, who is now aged 41, seeks leave to appeal against two sentences of imprisonment imposed in the County Court at Melbourne. So far as is relevant, the first challenged sentence ("the first sentence") of two years' imprisonment, one year of which was suspended for two years, was imposed on 7 November 2002 in relation to the cultivation of a narcotic plant, opium, in a quantity not less than a commercial quantity. His Honour accepted that, for sentencing purposes, the material was collected by the applicant for his own use. The offence to which the applicant had pleaded guilty was committed between 20 October and 20 November 2001 during the period of a suspended sentence ("the suspended sentence") of two years' imprisonment, which was wholly suspended for three years, which was imposed on 2 February 2000 in respect of one count of causing serious injury recklessly on 17 September 1998. On 28 May 2003 the applicant was dealt with in the County Court for breach of the suspended sentence. It was common ground at the hearing of the plea in mitigation that his earliest release date in respect of the first sentence was 14 October 2003. The learned sentencing judge restored the suspended sentence and ordered that "so much of the sentence restored be served concurrently with the [first] sentence up to and including 14 October 2003 and that the remainder of the restored sentence of two years be served cumulatively upon the sentence now being served". Thus the applicant was required to serve a further term of imprisonment of approximately 19 months in order to complete the restored sentence. That sentence is the subject of the second application for leave to appeal against sentence.
For reasons which will become apparent, it is only necessary to describe the surrounding circumstances but briefly.
At the hearing of the plea in mitigation in respect of the restored sentence it was common ground that the applicant had breached the suspended sentence and that it had to be restored. The material before his Honour made it apparent that the applicant had been a user of drugs since he was a teenager and was variously addicted to heroin, morphine and methadone. It was plain enough that, more recently, he has undertaken steps to rid himself of his addiction and dependence on drugs. More particularly, his Honour was told that, whilst in prison serving the first sentence, the applicant completed a methadone program which reduced, by half, his intake of that drug to 70 milligrams. There was other evidence before the learned sentencing judge going to the applicant's prospects of rehabilitation, including the support he receives from his sister, his good work record and the likelihood of his returning to work. It seems that his Honour considered that, in all the circumstances, the applicant's prospects of rehabilitation were reasonable.
In the course of the hearing his Honour canvassed with counsel his power under the Sentencing Act 1991 to order a non-parole period or partial concurrency in respect of the then proposed restored sentence. Counsel expressed doubt as to his Honour's power to order a non-parole period, but argued instead that his Honour had the power to order, and should order, partial concurrency at least with respect to that much of the first sentence that the applicant had to serve before becoming eligible for release, namely, on 14 October 2003. It is plain from the discussions between his Honour and counsel during the hearing of the plea in mitigation and from his Honour's sentencing remarks that he ultimately formed the view that he did not have the power to impose a non-parole period in respect of the restored sentence, although, as I have said, he accepted that the applicant's prospects of rehabilitation were reasonable and that, given his progress towards a drug-free life, he should spend the minimum period in prison as a result of the restoration of the two year suspended sentence. In the end, his Honour restored the suspended sentence in the terms that I have described.
Mr Croucher, for the applicant, pointed out that the combined effect of the first sentence and the restored sentence was that the applicant was required to serve, in round terms, a minimum period of imprisonment of 31 months, namely, 12 months pursuant to the first sentence and a further 19 months being the balance of the restored sentence.
The principal ground on which the applicant seeks leave to appeal against the restored sentence is that his Honour erred in imposing the sentence on the basis that he had no power to fix a non-parole period in respect of it. The applicant also seeks leave to introduce, as fresh evidence, the report of Dr Bell, a psychiatrist, to show that imprisonment is likely to be more burdensome for him and that he - and the community - would benefit from the supervision by the Adult Parole Board upon release.
It seems clear enough that in light of ss.11 and 31(5) of the Sentencing Act and R. v. Hatch[1], the learned sentencing judge did have the power to fix a non-parole period in respect of the restored sentence and was required to do so unless he considered that, for relevant reasons, such a course would be inappropriate. The Crown accepts that position. As Callaway, J.A. made plain in R. v. Hatch[2], having regard to the terms of the Sentencing Act, an order restoring a suspended sentence amounts to, "sentencing" the offender for the purpose of, inter alia, s.11 of the Sentencing Act so that, when s.11(1) applies, the court must fix a non-parole period unless it considers that such a course would be inappropriate. Relevantly, his Honour said[3]:
[1][1998] 3 V.R. 693 per Callaway, J.A. and 703 per Batt, J.A.
[2]At 699
[3] At 699. At 703 Batt, J.A. expressed his agreement with Callaway, J.A. on that issue.
"The two principal obstacles to combining a non-parole period and a suspended sentence when the suspended sentence is [first] imposed do not apply on breach for the Court has the option of changing from the sentencing alternative of suspension to the sentencing alternative of parole ... It may accordingly fix a new single non-parole period in respect of all the sentences the offender is to serve or complete and is
obliged to do so".
In all the circumstances, I consider that His Honour's conclusion that he did not have power to fix a non-parole period and the consequent failure to comply with s.11(1) of the Sentencing Act, amounted to sentencing errors which vitiated his sentencing discretion so that it is incumbent upon this Court to re-sentence the applicant. This, too, was accepted by the Crown. In undertaking such a task and having regard, particularly, to the material relating to the applicant's prospects of rehabilitation and the acceptance by the sentencing judge of it, as well as Dr Bell's report, there being no objection by the Crown to the Court making reference to it for sentencing purposes, I would, as the learned sentencing judge did, restore the suspended sentence of two years (as from 28 May 2003) but fix a non-parole period in respect of it of nine months. It seems to me that such a disposition would be an encouragement to the applicant to continue with his efforts to rehabilitate himself which is very much in the interests, not only of the applicant, but also of the community. It would also afford him an appropriate period of supervision and assistance in his efforts to eliminate his drug habit.
It is common ground that, if this is the decision of the Court, the application for leave to appeal against the first sentence falls away.
CHARLES, J.A.:
I agree.
ASHLEY, A.J.A.:
I also agree.
CHARLES, J.A.:
The orders of the Court today are as follows.
1.The application for leave to appeal against the sentence imposed by
Judge Wodak on 28 May 2003 is granted.
2.The appeal is treated as instituted and heard instanter and is allowed.
3.The sentence then imposed is varied by ordering that the applicant serve a minimum of nine months from 28 May 2003 before becoming eligible for parole.
4.The sentence is otherwise confirmed.
5.The Court declares that the applicant has at today's date served 195 days of such sentence of imprisonment and directs that this declaration be noted in the records of the Court.
6. The application for leave to appeal against the sentence imposed by Judge Duggan on 7 November 2002 is dismissed.
Any queries with those orders?
COUNSEL:
No, your Honour.
CHARLES, J.A.:
Mr Fiddes, that means that you should be being released at or about the end of February, about 27 or 28 February, thereabouts, next year.
PRISONER:
Very good, your Honour.
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CERTIFICATE
I certify that this and the preceding 4 pages are a true copy of the reasons for judgment of Charles and Chernov, JJ.A. and Ashley, A.J.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 8 December 2003.
DATED the day of 2003.
Associate
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