R v Lewis - [2003] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 281 of 2002

THE QUEEN

GARY MARCUS LEWIS

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JUDGES:	CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2003
DATE OF JUDGMENT:	3 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 142

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CRIMINAL LAW – sentence – multiple counts of theft – burglary – trafficking in drug of dependence - total effective sentence of 5 years and 3 months with non-parole period of 2½ years – whether appellant sentenced for the wrong offence, or by reference to a circumstance which was not alleged or established against him – whether sentence vitiated by judge’s reliance on uncharged offences – whether finding of disparity with co-offender vitiated by judge’s reliance on inadmissible material – whether sentence manifestly excessive – offender aged 28, amphetamine abuser, minor criminal history, assistance given to investigators, plea of guilty, most stolen property recovered, evidence of attempts at rehabilitation – appeal allowed – appellant re-sentenced to total effective term of 4 years and 3 months imprisonment with non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C. Mandy	Victoria Legal Aid

CHARLES, J.A.:

I invite Ashley, A.J.A. to give the first judgment.

ASHLEY, A.J.A.:

Background

Gary Lewis, the appellant, pleaded guilty to the following offences in the County Court at Bendigo on 18 October 2002:

Theft, 9 counts (Counts 1, 3, 5, 6, 7, 8, 9, 10 and 11).
Burglary, 1 count (Count 2).
Trafficking in a drug of dependence namely amphetamine, 1 count (Count 4).

The maximum sentences for the various offences were as follows:

Theft (s.74 Crimes Act 1958), 10 years' imprisonment.
Burglary (s.76 Crimes Act), 10 years' imprisonment.
Traffick a drug of dependence (s.71AC, Drugs, Poisons and Controlled Substances Act 1981), 15 years' imprisonment.

On 25 October 2002 the appellant was sentenced to the following periods of imprisonment: Count 1 – 15 months; Count 2 – 2 years; Count 3 – 6 months; Count 4 – 3 years; Count 5 – 18 months; Count 6 – 15 months; Count 7 – 12 months; Count 8 – 15 months; Count 9 – 12 months; Count 10 – 12 months; Count 11 – 12 months.

The sentencing judge ordered that 3 months of the sentence imposed on Count 1, 12 months of the sentence imposed on Count 2, 6 months of the sentence imposed on Count 5, 3 months of the sentence imposed on Count 6 and 3 months of the sentence imposed on Count 8 be served cumulatively upon each other and upon the sentence imposed on Count 4. The total effective sentence was thus 5 years and 3 months. A non-parole period of 2½ years was fixed. A declaration was made in respect of pre-sentence detention.

Grounds of Appeal

Now the appellant appeals against sentence. He does so pursuant to leave granted by Callaway, J.A. on 21 March 2003.

The grant of…

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 Lewis

Details

AGLC: R v Lewis [2003] VSCA 142
Case: [2003] VSCA 142
Decision Date: 3 September 2003

CaseChat Overview and Summary

The appellant, Lewis, was convicted of multiple counts of theft, burglary, and trafficking in a drug of dependence. The sentence imposed by the trial judge was a total effective term of 5 years and 3 months, with a non-parole period of 2½ years. Lewis appealed the severity of his sentence, arguing it was excessive and influenced by uncharged offences and inadmissible material. The appeal centred on whether the sentence was vitiated by the judge's reliance on these factors and whether the disparity between his sentence and that of his co-offender was justified.

The court needed to determine if the sentence was influenced by considerations that were not legally permissible, such as uncharged offences and inadmissible material. Additionally, the court had to assess whether the sentence was manifestly excessive, given the appellant's age, minor criminal history, cooperation with investigators, and evidence of rehabilitation efforts. The court also considered the disparity between Lewis's sentence and that of his co-offender, which was influenced by the judge's reliance on inadmissible material.

In assessing the appeal, the court found that the sentence was indeed influenced by uncharged offences and inadmissible material, which vitiated the sentence. The disparity with the co-offender's sentence was also vitiated by the judge's reliance on inadmissible material. The court concluded that the sentence was manifestly excessive, taking into account the appellant's age, minor criminal history, and efforts towards rehabilitation. The appeal was allowed, and Lewis was re-sentenced to a total effective term of 4 years and 3 months imprisonment, with a non-parole period of 2 years.

The final orders of the court were that Lewis be re-sentenced to a total effective term of 4 years and 3 months imprisonment, with a non-parole period of 2 years. This decision reflected the court's view that the original sentence was excessively harsh and not properly justified by the legally permissible factors. The re-sentencing took into account the appellant's age, minor criminal history, and evidence of rehabilitation efforts.

Orders