R v Foster - [2000] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 322 of 1999

THE QUEEN

TERRENCE WAYNE FOSTER

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JUDGES:	PHILLIPS, C.J., BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2000
DATE OF JUDGMENT:	28 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 187

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Criminal law – Appeal against sentence – Sentencing judge had disallowed a portion of the applicant’s pre-sentence detention for the purpose of a declaration – Sentencing judge concluded that applicant had indulged in “judge-shopping” – Appeal allowed and disallowance set aside.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. R.J. Bourke	Clarebrough Pica

PHILLIPS, C.J.:

The applicant, who is aged 31, pleaded guilty in the County Court at Melbourne on 6 December 1999 to a presentment containing four counts. These were a count of trafficking in a drug of dependence (heroin) (count 1), two counts of possession of a drug of dependence (counts 2 and 3, heroin and cannabis respectively) and one count of handling stolen goods (count 4).

These offences, which carried maximum penalties of 15 years' imprisonment and/or a fine of $100,000, one year's imprisonment and/or a fine of $3,000, a fine of $500 and 15 years' imprisonment respectively, were committed at Ballarat between 16 June 1998 and 15 June 1999.

The applicant's case had been set down for a contested committal hearing at the Magistrates' Court at Ballarat on 22 October 1999. On 27 September the Director of Public Prosecutions was advised by the (then) legal representatives of the applicant that he intended to plead guilty to all counts and sought an expedited plea hearing. A hand-up brief procedure then followed on 7 October when the applicant pleaded guilty to charges of the same character as those later included in the presentment. He was committed for trial and remanded in custody.

The presentment was filed in the County Court at Ballarat on 16 November. The applicant, who appeared before the judge, dismissed his counsel and sought an adjournment on the basis that there had been a change in legal representation and that he intended to reserve his plea. An adjournment was granted with a view to re-listing on 6 December before the same judge. On that date, in Melbourne, the matter was again listed before his Honour and different counsel appeared for the applicant. As I have earlier indicated, he then pleaded guilty to each of the counts on the presentment.

The applicant admitted many prior convictions incurred between February 1987 and November 1998. These included a number of convictions for offences of dishonesty including burglary, theft, handling stolen goods and other offences of intentionally causing serious injury and robbery. For the latter two crimes he was sentenced in March 1991 to a total effective sentence of 21 months' imprisonment with a non-parole period of 12 months' imprisonment. He had variously been sentenced to detentions in youth training centres, imprisonments, a community-based order and fines.

After…

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 Foster

Details

AGLC: R v Foster [2000] VSCA 187
Case: [2000] VSCA 187
Decision Date: 28 September 2000

CaseChat Overview and Summary

In the case of R v Foster, the applicant, who had been found guilty of criminal offences, appealed against the sentence imposed by the sentencing judge. The central issue before the court was whether the sentencing judge was correct in disallowing a portion of the applicant’s pre-sentence detention for the purpose of a declaration. This decision was made by the sentencing judge on the grounds that the applicant had engaged in “judge-shopping”, a term that implies the applicant was attempting to influence the sentence by choosing a particular judge known for certain sentencing tendencies.

The legal issue that the court had to determine was whether the sentencing judge's conclusion that the applicant had engaged in judge-shopping was justified and whether this justified the disallowance of part of the applicant's pre-sentence detention. The court needed to assess whether the evidence supported the sentencing judge’s conclusion and whether the disallowance was a proportionate and lawful response to the perceived misconduct. The court examined the principles of sentencing and the specific circumstances surrounding the case to determine if the disallowance was a proper exercise of the sentencing judge's discretion.

The court found that the sentencing judge's conclusion that the applicant had engaged in judge-shopping was not supported by the evidence. The court held that the disallowance of part of the applicant's pre-sentence detention was an error of law. Consequently, the appeal was allowed, and the disallowance was set aside. The matter was remitted to the sentencing judge for reconsideration in light of the court's findings.

Orders