R v Kline

[2004] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 62 of 2003

THE QUEEN

v.

TIMOTHY JOHN KLINE

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JUDGES:	VINCENT, J.A. and SMITH and COLDREY, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2004
DATE OF JUDGMENT:	4 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 27

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Criminal Law – Sentence – Offences of dishonesty – Prior convictions – Alleged unusual non-parole period – Absence of reasons for non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Robert Stary & Associates

VINCENT, J.A.:       I will ask Smith, A.J.A. to deliver the first judgment.

SMITH, A.J.A.:

1. The history of this matter, a detailed analysis of the facts and issues of the case and the learned sentencing judge's reasons are set out in the reasons of Eames, J.A. of 7 November 2003 in dismissing the application then made for leave to appeal.  I adopt those aspects of Eames, J.A.'s reasons.

1. On 5 February 2004 the following ground of appeal was substituted by leave:

"1.       The sentencing judge erred in failing to:

(a)impose a sentence which allowed greater disparity between the total effective sentence and a non-parole period;

(b)give discrete consideration, at all or sufficiently, to the fixing of the non-parole period;

(c)       give reasons for fixing the non-parole period."

1. Counsel for the applicant submitted that the total effective sentence of 36 months' imprisonment and a non-parole period of 30 months represented a non-parole period which was 5/6ths of the total sentence.  Counsel submitted that it was most unusual to have an extraordinarily high non-parole period and, there being no reasons advanced, it invited appellate scrutiny.  Counsel submitted that, notwithstanding the recidivism of the applicant, a very high non-parole period relative to the head sentence pointed to error either simpliciter or because his Honour failed to give discrete consideration sufficiently or at all to the issue of fixing a non-parole period.  Counsel further submitted that one can only speculate about the basis on which the period was imposed.  Counsel submitted that it was not open to the learned sentencing judge to impose such a high non-parole period.  Further it was put that having chosen to do so it was incumbent upon his Honour to provide a reasoned justification. 

1. In fixing a non-parole period it is well established that the sentencer is concerned with the question of the minimum period for which the prisoner should be imprisoned applying the accepted principles of sentencing.  The purpose of doing so is to mitigate the sentence, through conditional freedom, to assist rehabilitation once the prisoner has served the minimum term that justice requires that he must serve having regard to all the circumstances of the case. 

1. Accepting for present purposes that the non-parole period is unusually high and that the absence of reasons requires that the correctness of the decision as to the non-parole period should be reviewed, I am not persuaded that any error can be demonstrated.  In the present case, I can well understand that the learned sentencing judge would have concluded that the minimum term of imprisonment required for a person convicted on some 22 counts of dishonesty offences and having a long history of dishonesty would have to be sentenced to a minimum of 30 months' imprisonment before becoming eligible for parole.  Further, the prospects of rehabilitation being poor, I can well understand that the learned sentencing judge would have decided to provide a short period during which parole could be considered.

1. In my view, no error is shown and the application should be dismissed.

VINCENT, J.A.: 

1. I agree.

COLDREY, A.J.A.:

1. I also agree.

VINCENT, J.A.: 

1. The order of the Court is that the application is dismissed.

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(R. v. Kline)