R v Hamond

[2005] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 29 of 2004

THE QUEEN

v.

DAVID ANDREW HAMOND

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2005
DATE OF JUDGMENT:	2 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 6	1st Revision – 25 February 2005

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Criminal law – Sentencing – Non-parole period – Incorrect date upon which new non-parole period was to commence following second trial – Declaration of pre-sentence detention in respect of first sentence  not taken into account following second trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Clarebrough Pica

NETTLE, J.A.:

1. The appellant, David Andrew Hamond, is now aged 33 years and at the date of the offences the subject of this application he was aged 32 years.  On 30 June 2003 he was arrested and interviewed by the police.  He did not make any admissions.  At that time he was on bail awaiting trial on numerous offences, including an offence of armed robbery which had been committed on 27 December 2002.  On 1 August 2003 in the County Court at Melbourne he pleaded guilty to that count of armed robbery and on 12 August 2003 her Honour Judge Hogan sentenced him to be imprisoned for two years and fixed a non-parole period of one year.  She also declared a period of pre-sentence detention of 69 days' time already served.  On 25 November 2003 in the Magistrates' Court at Melbourne the appellant was convicted of 23 charges of obtaining a financial advantage by deception, 13 charges of obtaining property by deception, six charges of theft and one charge of failing to answer bail.  He was sentenced to a total effective sentence of eight months' imprisonment, of which six months was ordered to be served concurrently with the sentence he was then undergoing. 

1. On 28 January 2004 in the Magistrates' Court at Melbourne the appellant was committed to stand trial on further offences committed on 30 June 2003.  At that time he indicated he intended to enter a plea of guilty to all charges.  On 18 February 2004 the appellant was presented at the County Court at Melbourne before his Honour Judge Neesham on the 30 June 2003 charges and he pleaded guilty to each count.  After hearing a plea in mitigation, his Honour sentenced the appellant as follows:  first, on the count of aggravated burglary (count 1), to four years' imprisonment;  secondly, on the count of theft (count 2), to one year imprisonment;  and thirdly, on the count of damaging property (count 3), to six months' imprisonment, making for a total effective sentence of four years.  The judge further directed that three of those four years be served cumulatively upon the sentence of imprisonment which the appellant was then undergoing, and his Honour fixed a new single non-parole period of two years. 

1. On 3 September 2004, Winneke, P. granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958. The sole ground of appeal now pressed is that his Honour Judge Neesham erred in failing to state with sufficient clarity the date on which the new single non-parole period was to commence, with the result that the appellant may be required to serve a longer non-parole period than the judge intended. The Crown agrees that that is so. Because Judge Neesham did not specify the day from which the new single non-parole period was to take effect, the prison authorities are required to, or at least may, act on the basis that it took effect from 18 February 2004. It is, however, plain enough from Judge Neesham's sentencing remarks that his Honour intended to increase the existing non-parole period by a further period of only twelve months and that his Honour intended the new single non-parole period of two years to date from 12 August 2003. There is then a further complication in that the judge appears to have proceeded upon the assumption that the appellant was serving a term of imprisonment and a non-parole period which dated only from 12 August 2003, whereas in effect both dated from 4 June 2003 (after allowing for the 69 days' pre-sentence detention declared by Judge Hogan on 12 August 2003). It is to be inferred that if Judge Neesham's attention had been directed to the declaration of 69 days' pre-sentence detention, his Honour would have intended that it be taken into account in fixing not only the time to be served in respect of the head sentence, but also the new non-parole period.

1. The principles which apply in an appeal of this kind are set out in R. v. Stares[1] and I shall not repeat them.  Having regard to those principles and the facts to which I have referred, it appears to me that an order should be made to give effect to the judge's apparent intention.  Accordingly, the orders which I propose are that the appeal be allowed, that the sentence the subject of the appeal be set aside, as too should be the non-parole period imposed by his Honour Judge Neesham on 18 February 2004, and in lieu thereof I would substitute a head sentence of three years' imprisonment to be served cumulatively upon previous sentences, and I would fix a non-parole period of 17 months and 15 days commencing on 18 February 2004.  Out of an abundance of caution, I note that the period of 69 days' pre-sentence detention declared by her Honour Judge Hogan on 12 August 2003 continues to apply.

VINCENT, J.A.: 

[1][2002] 4 V.R. 314.

1. I agree.

CUMMINS, A.J.A.:

1. I agree.

VINCENT, J.A.: 

1. The order of the Court is that this appeal is allowed.  The sentence imposed by Judge Neesham on 18 February 2004 is set aside and in lieu thereof a sentence of three years' imprisonment is substituted, to be served cumulatively upon that imposed by Judge Hogan on 12 August 2003.  The Court fixes a new non-parole period of 17 months and 15 days commencing on 18 February 2004.  The Court notes that the pre-sentence declaration made by Judge Hogan on 12 August 2003 continues.

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