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	1st 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.:

1. 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).

1. 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.

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

1. 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 truck.  The pursuit continued through a number of suburbs with the applicant finally stopping at Williamstown Road.  The truck was examined and it was found that it contained a large quantity of items stolen from Winslow Pty Ltd valued at $8,000.  The applicant's truck had number plates affixed which he had found on the Cranbourne tip.  He was arrested and interviewed and made full admissions.

1. On 9 September, the applicant, upon a plea of guilty, was sentenced in the Magistrates' Court at Dandenong on the various offences which had occurred two days previously to an aggregate sentence of 12 months’ imprisonment, cumulative upon any uncompleted term of imprisonment owed to the State Parole Board, and a non-parole period of six months was fixed.  The offences arising out of the events already described included burglary, theft, going equipped to steal, driving in a manner dangerous and using an unregistered motor vehicle on a highway.

1. The applicant then, on 29 September 2004, appeared again before the judge in the County Court in relation to a charge of breaching the suspended sentence handed down on 29 July 2004.

1. Counsel for the applicant submitted that the reason the applicant re-offended was his financial difficulties.  The judge noted that this contention was at odds with the submissions previously made on his behalf in the earlier plea of 23 July.  Counsel submitted that the applicant had been making significant efforts to rehabilitate himself whilst in prison, he had a supportive family, had been a relatively law-abiding citizen for a long period of time, and a term of imprisonment would be significant for a man of his age, 50.  Counsel for the applicant did not submit to the judge that there were any exceptional circumstances, simply asking the judge, as a matter of discretion, not to order the full term of the suspended sentence to be served cumulatively upon the 12 months' sentence the applicant was already serving.  The next submission, made at some length, was that the judge should impose a new non-parole period.  Counsel relied on authority that the judge had such power (R. v. Hatch[1]). 

   [1][1998] 3 V.R. 693.

1. In passing sentence, the judge noted that the applicant had not only committed a substantial act of burglary but had engaged police in a chase over a very long distance, thus endangering other members of the community.  His Honour noted that the offence had occurred only six weeks after the applicant had received a suspended sentence.  Accordingly, his Honour imposed upon the applicant a sentence of 15 months' imprisonment to be served cumulatively on any other sentence the applicant was currently serving, the effect of which was that the applicant's sentence became 27 months, with a non-parole period of 21 months.

1. Application for leave to appeal pursuant to s.582 of the Crimes Act 1958 was made to a judge of this Court on 17 June 2005 and dismissed. It was argued that the sentencing judge had incorrectly sentenced the applicant on the basis that the suspended sentence related to offences of handling stolen goods rather than offences under s.123 of the Confiscation Act.  The judge concluded that this was merely a slip of the tongue by the sentencing judge which made no difference to the outcome.  I agree.

1. In this Court today the applicant submitted that the County Court judge erred in not setting a new non-parole period under s.14(1) of the Sentencing Act 1991 after determining that the whole of the suspended sentence should be served cumulatively upon any existing sentence being served by him. It is clear that on 29 September virtually the whole of the argument before his Honour was directed to the question whether a new non-parole period should be fixed. The judge, in failing to take this course, has left a sentence which might be regarded as including an unusually long non-parole period, with no explanation or discussion of the argument before his Honour, nor any reasons his Honour may have had for declining to fix a new non-parole period. In Krasnov and Shlakht[2], this Court took the view that, in circumstances where one would generally expect to see stated reasons

for taking a particular course the failure to give an explanation betokened sentencing error.  In my view a judge who is faced with the question whether to fix a new non-parole period but decides not to do so, should ordinarily give some indication in sentencing reasons for declining to fix a new non-parole period, certainly where the issue has been fully argued before the judge. 

[2](1995) 82 A.Crim.R. 92, at 99.

1. In this Court, Ms Cannon for the Crown accepted that the judge clearly had a power to fix a new non-parole period.

1. The failure of the judge to explain in sentencing reasons why no new non-parole period was fixed suggests, with respect, sentencing error.  Furthermore, the only mention made by his Honour of the issue was in the course of argument before him, prior to sentence, when his Honour said to the prosecutor: 

"And if I don't fix a parole period and order the sentence to be cumulative, it is still up to the Parole Board, I take it, as to when parole is to be ordered."

This comment, with respect, also gives rise to a concern that the judge may not have correctly understood the effect of failing to fix a new non-parole period in the present case. 

1. In my view, the application for leave to appeal should accordingly be allowed.  I would set aside the sentence below, for the purpose only of fixing a new non-parole period, which I would fix at 15 months.

BUCHANAN, J.A.: 

1. I agree.  I would add that I, too, think it important that sentencing judges should give adequate reasons for disposing of significant arguments addressed to them.

VINCENT, J.A.: 

1. I agree.

CHARLES, J.A.: 

1. The order today is that the application for leave to appeal is granted.

The appeal is treated as instituted and heard instanter and is allowed.

The sentence imposed on 29 November 2004 is set aside solely for the purpose of fixing a new non-parole period but is otherwise confirmed.
The Court fixes a new non-parole period of 15 months.

The Court declares that, as at this day, the period to be reckoned as already served under the sentence is 401 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

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