Criminal law – Sentencing – Multiple burglaries and thefts – Rolled-up count for 24 thefts - Contrast with representative count – Rolled-up count acceptable when accused pleading guilty – Cumulation and concurrency - Youthful offender with numerous previous convictions – T.E.S. of six years with non-parole period of 3½ years not manifestly excessive.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr G. Silbert
Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant
Mr M.J. Croucher
Hale & Wakeling
CHARLES, J.A.:
In my opinion this appeal must fail.
On 1 April 2003 the appellant, who was born on 14 June 1979, pleaded guilty to a filed-over presentment containing 24 counts of burglary with intent to steal and four counts (counts 5, 11, 26 and 28) of theft. The maximum penalty for all these offences was 10 years' imprisonment. The appellant admitted eight previous findings of guilt from three court appearances between 23 May 1994 and 2 October 1998 and 88 previous convictions from four court appearances between 15 November 1999 and 6 October 2000. None of these appearances resulted in a sentence requiring immediate imprisonment. However, on 6 October 2000 the appellant was convicted at the Magistrates' Court at Sunshine on a large number of charges and was sentenced to a total effective sentence of two years, wholly suspended for two years. Then, on 13 March 1991, he appeared at Sunshine Court for a breach of the suspended sentence and received a term of imprisonment of 17 months from which he was released on parole in November 2001.
Three of the offences of theft, counts 5, 11 and 26, related to the theft of motor cars. Count 28 was a "rolled-up" count relating to each of the burglaries covered by the remaining 24 counts and which alleged that the appellant, "at various locations in and around Melbourne" between 4 October and 2 December 2000, stole quantities of cigarettes and other items belonging to various businesses enumerated in a schedule attached to the presentment.
After a plea on 1 April 2003, the judge passed sentence on the appellant on 21 May. On the rolled-up count of theft the appellant was sentenced to four years' imprisonment. On each of counts 1, 2 and 3, in each case burglary, the appellant was sentenced to six months' imprisonment. On each of counts 5, 11 and 26, the three counts relating to stolen motor cars, the appellant was sentenced to three months' imprisonment. On each of counts 7, 12, 16, 18, 19, 20 and 27, in each case burglary, the appellant was sentenced to six months' imprisonment. On each of the remaining 14 counts of burglary, the appellant was sentenced…
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
AGLC
R v Jones [2004] VSCA 68
Case
[2004] VSCA 68
Decision Date
CaseChat Overview and Summary
In the matter of the Crown versus Jones, the defendant stood before the court in relation to a series of burglaries and thefts committed over a period of time. The court was tasked with determining the appropriate sentence for the defendant, who had pleaded guilty to a rolled-up count of 24 thefts. The legal issues before the court involved the appropriate approach to sentencing in this context, particularly the contrast between a rolled-up count and a representative count, and the application of principles of cumulation and concurrency in sentencing. The court was also required to consider the defendant's age, previous criminal history, and the totality of his offending, in order to arrive at a just and proportionate sentence.
The court examined the principles surrounding the use of a rolled-up count, which involves treating multiple offences as a single offence for sentencing purposes, and contrasted it with a representative count, which involves selecting a subset of offences to represent the overall offending. The court noted that a rolled-up count could be acceptable in cases where the defendant pleads guilty, as it allows the court to take into account the totality of the offending in determining an appropriate sentence. The court also considered the principles of cumulation and concurrency, which involve determining whether the sentences for multiple offences should be served cumulatively or concurrently. In this case, the court determined that a concurrent sentence was appropriate, as the offences were closely related and the defendant's offending was part of a continuous pattern of behaviour.
After considering the totality of the evidence and the principles outlined above, the court determined that a sentence of six years' imprisonment with a non-parole period of three and a half years was appropriate. The court noted that the sentence was not manifestly excessive, given the defendant's age, previous criminal history, and the nature and extent of his offending. The court also considered the need to deter the defendant and others from engaging in similar offending, as well as the need to provide some measure of rehabilitation and reintegration for the defendant. The court was satisfied that the sentence achieved these objectives, and imposed the sentence accordingly.
The final orders of the court were that the defendant be imprisoned for a term of six years, with a non-parole period of three and a half years. The court also ordered that the sentence be served concurrently with any other sentences the defendant may be serving, and that the defendant be subject to any other conditions or orders deemed appropriate by the court.