Legal Research
Cases
R v Males

R v Males

Case [2007] VSCA 302 28 November 2007

Sentencing

Criminal Liability

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 312 of 2006

THE QUEEN
	v
ANDREW BRIAN MALES

---

JUDGES:	MAXWELL P, KELLAM JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	3 September and 28 November 2007
DATE OF JUDGMENT:	28 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 302

---

CRIMINAL LAW – Sentencing – Relevant considerations – Whether fact of protective custody a mitigatory factor – Evidence needed to show effect of protective custody on prisoner – Whether protective custody irrelevant where attributable to prisoner’s past or apprehended future conduct – Whether sentencing court can investigate reasons for protective custody.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

MAXWELL P:

I will invite Whelan AJA to deliver the first judgment.

WHELAN AJA:

The appellant, Andrew Males, was sentenced on 29 September 2006 by a County Court judge to a total effective sentence of four-and-a-half years' imprisonment, with a non-parole period of three years, after pleading guilty to one count of theft, one count of armed robbery and one count of recklessly engaging in conduct that placed other persons in danger of death. The appellant now appeals against the sentences imposed. He was granted leave to appeal on 16 March 2007.

The appeal must be allowed because the sentencing judge was not told of a factor relevant to sentence. He was not told that the appellant had been held, and was continuing to be held, in protective custody.

This appeal was first heard on Monday 3 September 2007. Shortly prior to that hearing, an affidavit was filed by the appellant's current solicitor. Based upon what he had been told by the appellant, the solicitor deposed that the appellant had been held in protective custody continuously since 15 December 2005, when he was first remanded. The affidavit suggested that the appellant would remain in protective custody. The affidavit referred to restrictions placed upon the appellant as a result of being in protective custody. The affidavit suggested that the reason he was first placed in protective custody was because of an incident a number of years ago where he had been assaulted, and because, having been held in protective custody, he is now ‘marked’ by the mainstream prison population. There was also an affidavit filed by the solicitor who had appeared for the appellant before the County Court judge on the plea. That affidavit indicated that that solicitor did not have a clear recollection of being aware that the appellant was in protective custody. He deposed that if he had been aware of it, he believes he would have informed the County Court judge of that circumstance.

Where a prisoner is being held in protective custody, that is a factor relevant to sentence.[1] The extent to which it is to be taken into account in the prisoner's favour depends upon the source of the need for protection[2] and, of course, upon…

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 Males

Details

AGLC: R v Males [2007] VSCA 302
Case: [2007] VSCA 302
Decision Date: 28 November 2007

CaseChat Overview and Summary

The case of R v Males involves the defendant, Males, who was convicted of a criminal offence and was subsequently sentenced by the court. The primary issue in this appeal was the consideration of whether the fact that Males was placed in protective custody during his incarceration should be regarded as a mitigating factor in his sentencing. The appeal raised questions about the evidentiary requirements for demonstrating the impact of protective custody on a prisoner, the relevance of protective custody when it is due to the prisoner's past or anticipated future conduct, and the extent to which a sentencing court can inquire into the reasons for a prisoner’s placement in protective custody.

The legal issues before the court encompassed the scope of relevant considerations for sentencing, particularly focusing on the mitigatory effect of protective custody. The court examined whether the fact of being in protective custody could be a mitigating factor, and if so, what evidence is necessary to substantiate this. Furthermore, the court considered whether protective custody is irrelevant if it is due to the prisoner's past or expected future behaviour, and whether the sentencing court has the authority to investigate the reasons behind a prisoner's placement in protective custody. The court had to balance these considerations within the framework of sentencing principles and the specific circumstances of Males' case.

In delivering the judgment, the court held that the fact of being in protective custody could potentially be a mitigating factor in sentencing, but it must be supported by sufficient evidence demonstrating its impact on the prisoner. The court found that protective custody may not be a mitigating factor if it is attributable to the prisoner's past or anticipated future conduct. Additionally, the court concluded that while the sentencing court has a degree of discretion to investigate the reasons for protective custody, it should exercise this power judiciously, ensuring that such investigations do not intrude upon the administrative functions of the correctional system. The outcome was that the sentencing court's consideration of protective custody as a mitigating factor required careful scrutiny and appropriate evidence.

The final orders of the court involved a remand for a reassessment of the sentencing taking into account the principles articulated in the judgment. The court directed that the sentencing process should ensure that any mitigating effect of protective custody is substantiated by relevant evidence and that the reasons for protective custody are appropriately considered without overstepping the boundaries of the sentencing court's jurisdiction.

Orders