R v Lovett

[2004] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

(Revised)

No. 169 of 2002

THE QUEEN

v.

LAWRENCE WILLIAM LOVETT

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JUDGES:	WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2004
DATE OF JUDGMENT:	17 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 13

Criminal Law - Sentence - Applicant in person - Only complaint in respect of "pre-sentence detention" - Application for leave to appeal against conviction and sentence dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle QC	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	In Person

WINNEKE,P. :(Delivering the judgment of the Court):

1. We have an appeal before us which purports to be an application for leave to appeal against conviction as well as sentence by Lawrence Lovett, who was convicted in the County Court in June of 2002 of a number of offences arising out of an incident that occurred on New Year's Eve 2000 when a number of men raided a flat in the Commission flats at Hoddle Street in Richmond.  The flat was occupied by elderly Vietnamese people, a man and a woman.  The entry was effectuated by removing a security door and breaking down the front timber door.  The method of entry only has to be described to indicate the fear that, no doubt, was instilled into the elderly residents.  Those residents were confronted and confined in a bedroom of the premises.  One of the intruders demanded production of their wallets which revealed no cash.  There is some suggestion in the evidence that the intruders sought to pass themselves off as the police, an impression which, if it had been given, was clearly dispelled when one of the men removed a gold necklace from the neck of the elderly male.  Whilst the residents were confined to their bedroom, they could hear the intruders searching the premises and when finally the noise ceased and they ventured out of the room in which they had been confined, they noticed that the television set, the stereo and speakers had been stolen.

1. Ultimately, three men were apprehended and charged with these offences and Mr Lovett was one of the three persons who were charged.  Another of them pleaded guilty and a third, namely Taylor, stood trial with Mr Lovett.  Taylor pleaded guilty to lesser offences which were alternative to those which were charged.  Lovett pleaded not guilty and put the prosecution to proof.  His defence was effectively that he was a non-productive participant in these offences, was standing back while the door was broken down, not wanting to participate and only entered the premises after the door had been broken down for the purposes of encouraging his co-accused to withdraw and to leave the elderly people alone.  He ultimately agreed in his record of interview with police that he had taken one of the stereo speakers to premises nearby, but insisted that that was not an indication of any criminal activity on his part, but simply assistance to his friends given as, effectively, a "hanger-on".  It was his defence that he did not want to be involved in any of these episodes and, eventually, the Crown alleged as against him that he was not the primary mover in this enterprise, but was a person who was either acting in concert with the other two accused, or at least aiding and abetting.  That must have been the basis upon which the jury convicted the applicant and recorded convictions against him.

1. Mr Lovett ultimately brought an application to appeal against his conviction, but when he came to Court today he indicated to us that it was not his wish to persist in his application for leave to appeal against his conviction, nor indeed was it his wish to challenge the sentences imposed by the trial judge, save and except as to the time declared as pre-sentence detention under s.18 of the Sentencing Act.

1. Because Mr Lovett took the view that the judge had not properly credited him with the full amount of time which was warranted, we have sought further information and satisfied ourselves that the amount of time declared by his Honour, namely 112 days, is indeed the proper amount of time credited.  It appears from the transcript that Mr Lovett's counsel at trial, Mr Lavery, agreed with the proposition that 112 days was the proper amount of time credited even though Mr Lovett had been in prison for a period of time since he was remanded for this offence on New Year's Eve 2000 until almost a year later on 13 December 2001.  It appears, however, that on that day he was convicted of an outstanding offence before judge Kelly and given a one year gaol term for that outstanding offence.  The period of just short of a year which Mr Lovett initially claimed should have been credited to him by the judge in this trial was in fact credited against the sentence of one year imposed by judge Kelly.  All this, apparently, was referred to in the sentencing process before the judge in this particular trial with which we are concerned.  We have explained to Mr Lovett why it was that he was not credited with this time for these particular offences.  He appears now to understand the circumstances which I have recited.

1. In all the circumstances, this Court, having looked very closely at the transcript in respect of the trial, is satisfied that no error leading to a miscarriage of justice has flowed to Mr Lovett and that there is no basis upon which we could uphold the application for leave to appeal against conviction.  Mr Lovett understands that and that is effectively why he has indicated to us that he does not want to pursue that application.

1. Mr Lovett also indicates to us that he has no complaint about the individual sentences which his Honour imposed, nor the minimum term which he fixed which was a minimum term designed to reflect the applicant's participation in these crimes as compared with the other offenders.  All Mr Lovett was concerned about was a period of time which, as we have indicated, he believed he had not been credited.  That matter having now been cleared up, we must declare that we are satisfied that the sentences imposed by his Honour were satisfactory and that there is no basis for interfering with them.

1. The applications for leave to appeal against conviction and sentence must therefore be dismissed.  That will be the formal order of the Court.