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R v Hunter

R v Hunter

Case [2006] VSCA 129 21 June 2006

Criminal Liability

Sentencing

Principle of Totality

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 135 of 2005

THE QUEEN
	v.
STEPHEN JAMES HUNTER

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JUDGES:	MAXWELL, P., BUCHANAN and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2006
DATE OF JUDGMENT:	21 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 129

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CRIMINAL LAW – Sentence – Offences committed while on parole – Failure to consider whether exceptional circumstances exist to justify displacement of usual rule that sentence imposed for offences committed while on parole be served cumulatively – Sentencing Act 1991 (Vic) s.16(3B) – No exceptional circumstances.

CRIMINAL LAW – Sentence – Principle of totality – Failure to take account of sentence to be served upon cancellation of parole when determining appropriate sentence for offences committed whilst on parole – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.P. Wheelahan	Rainer Martini & Associates
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

MAXWELL, P.,
BUCHANAN, J.A.,
REDLICH, J.A.:

On 30 March 2005 the appellant (“Hunter”) pleaded guilty to each count on a presentment containing a count of theft (count 1), kidnapping (count 2), false imprisonment (count 3), causing injury intentionally (count 4) and trafficking in a drug of dependence (count 5). On 27 April 2005 Hunter was sentenced on count 1 to six months’ imprisonment, on count 2 to four years’ imprisonment, on count 3 to two years and six months’ imprisonment, on count 4 to twelve months’ imprisonment and on count 5 to six months’ imprisonment.

The sentencing judge ordered that 18 months of the sentence imposed on count 3 and six months of the sentence imposed on count 4 be served concurrently with the sentence imposed on count 2 and that the sentences imposed on count 1 and count 5 be served cumulatively with the sentence imposed on count 2, and upon each other, making a total effective sentence of six years and six months. His Honour fixed a minimum term of four years and six months to be served before Hunter would become eligible for parole.

Hunter appeals, by leave, against his sentence. The grounds of appeal all relate to the alleged failure of the sentencing judge to take properly into account a sentence which Hunter was serving as a result of the cancellation of his parole.

The grounds are as follows:

“1.The learned sentencing judge’s discretion was vitiated by proceeding from the premise that a term of imprisonment for an offence committed whilst on parole must be served cumulatively on the parole sentence, without regard to the existence of exceptional circumstances.
2.The learned sentencing judge erred in treating the parole sentence as a potential liability contingent on what the parole board may or might not do, rather than an actual liability that was extant.
3.By ignoring the parole sentence the sentencing discretion has miscarried, offending the principle of totality.”

Sentencing for offences committed while on parole

Each of the offences was committed while Hunter was on parole in relation to other…

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 Hunter

Details

AGLC: R v Hunter [2006] VSCA 129
Case: [2006] VSCA 129
Decision Date: 21 June 2006

CaseChat Overview and Summary

The case of R v Hunter involved the appellant, who was on parole at the time of committing new offences, and the Crown. The dispute centred around the sentencing of the appellant for these new offences and whether the trial judge erred in not considering if exceptional circumstances existed that could justify a deviation from the usual rule of cumulative sentencing. This rule mandates that sentences for offences committed while on parole be served cumulatively. The case was heard in the Victorian Court of Appeal.

The primary legal issues before the court were whether the trial judge failed to consider if exceptional circumstances existed under section 16(3B) of the Sentencing Act 1991 (Vic) that could justify a departure from cumulative sentencing, and if the principle of totality was correctly applied. The appellant argued that the trial judge did not sufficiently consider exceptional circumstances and failed to account for the sentence to be served upon parole cancellation when determining the sentence for the new offences.

In its decision, the Court of Appeal found that the trial judge did not err in concluding that there were no exceptional circumstances that would justify a departure from the rule of cumulative sentencing. The court also determined that the trial judge correctly applied the principle of totality by considering the total sentence to be served, including the sentence upon cancellation of parole. Consequently, the appellant was re-sentenced.

The final orders of the Court of Appeal were that the appellant's conviction be upheld, and he be re-sentenced to serve the sentences cumulatively, without any consideration of exceptional circumstances.

Orders