R v Jenkins - [2005] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 349 of 2004

THE QUEEN
	v.
KEVIN REX JENKINS

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2005
DATE OF JUDGMENT:	11 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 253	1^st Revision 27 October 2005

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SENTENCE – Applicant committing further offences whilst serving a suspended sentence – Further sentence of imprisonment imposed for breach – Judge not fixing a new non-parole period – Failure to give reasons for declining to do so – Appeal allowed and new non-parole period fixed – Sentencing Act 1991 s.14(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
The Applicant in person.

CHARLES, J.A.:

On 23 July 2004 the applicant pleaded guilty in the County Court to one count of possessing a drug of dependence and a second count of trafficking in a drug of dependence. He also pleaded guilty to two summary charges of possessing property that ought reasonably be suspected of being the proceeds of crime, charges 12 and 14. He admitted 32 prior convictions. The charge of possession related to 19.6 grams of cannabis found in a search of the applicant's home. The charge of trafficking arose out of the discovery of seven grams of methylamphetamine in the applicant's house (a trafficable quantity is six grams). The search of the applicant's premises also resulted in the discovery of items to the value of $3,000 suspected of being stolen from Kerry Dwyer Agencies (charge 12) and further items valued at $500 suspected of being stolen from Applied Chemicals (charge 14).

On 29 July the applicant was sentenced to a total effective sentence of 15 months, wholly suspended for three years. He was sentenced on the first count, possession, to a fine of $100, on count 2, trafficking, to a fine of $500, and on charges 12 and 14, in each case to be imprisoned for nine months, together with a fine of $1,000. Six months of the sentence imposed on charge 14 were made cumulative on the sentence imposed on charge 12, making a total effective sentence of 15 months, which was wholly suspended.

There was no application for leave to appeal against this sentence.

On 7 September 2004, police discovered that a burglary was in progress at the factory of Winslow Pty Ltd. Police visited the scene and saw the applicant inside a white tray truck and a second man beside the truck. The applicant drove off in the truck and was chased by the police for a total of 161 kilometres. He was closely followed by police in cars with lights and sirens operating. The applicant, in driving this truck, drove through many intersections with stop signs without stopping, drove the wrong way around roundabouts and on the wrong side of the road, including at times where there was a median strip, and swerved his truck at police cars as they pulled alongside the…

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.

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Details

Case: [2005] VSCA 253
Decision Date: 11 October 2005

CaseChat Overview and Summary

In the matter of R v Jenkins, the appellant was convicted and sentenced to imprisonment for a series of criminal offences. The appellant was granted a suspended sentence with conditions, and subsequently committed further offences. Upon breach of the suspended sentence conditions, the appellant was sentenced to imprisonment. The legal question arose as to whether the judge erred in failing to fix a new non-parole period when sentencing the appellant for the breach of the suspended sentence. The appeal was brought before the court to determine if the judge's failure to fix a new non-parole period was a ground for appeal and if the court should intervene to fix a new non-parole period.

The court examined the relevant statutory provisions, specifically section 14(1) of the Sentencing Act 1991, which outlines the court's power to fix a new non-parole period when sentencing for a breach of a suspended sentence. The court found that the judge had failed to provide reasons for not fixing a new non-parole period, which was a requirement under the Act. The court held that the failure to provide reasons for not fixing a new non-parole period was a ground for appeal and that the appeal should be allowed. Consequently, the court exercised its power under section 14(1) of the Sentencing Act 1991 to fix a new non-parole period.

The court allowed the appeal and fixed a new non-parole period for the appellant's sentence. The court emphasised the importance of providing reasons for the exercise or non-exercise of judicial discretion in sentencing matters, particularly when it comes to fixing a new non-parole period for a breach of a suspended sentence. The court found that the failure to give reasons in this case warranted intervention to ensure that the appellant's rights were protected and that the sentencing process was transparent and accountable.

Orders