CRIMINAL LAW – Sentencing – Handling (28 counts), theft and attempted burglary – 22 counts committed while on bail – Partial cumulation orders made “upon each other” but not on any specific “base” sentence – Invalid directions for cumulation and concurrency – Resentencing required – Effect of delay – Significance of indication of guilty plea at first hearing.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr C.G. Hillman, S.C.
Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant
Mr P.F. Tehan, Q.C. with Mr R. Sdraulig
Falcone & Adams
ORMISTON, J.A.:
This application for leave to appeal against sentence arises out of a plea of guilty to all counts on a presentment containing some thirty counts primarily relating to the handling of stolen goods over a period from May 2000 to 27 March 2002, as well as to one count of attempted burglary on a separate presentment, in the course of which some three additional charges brought in the Magistrates’ Court were admitted and taken into account by the learned judge. In dealing with these offences the learned judge on 3 November 2003 imposed sentences[1] on 28 counts of handling[2] varying between one month and 24 months and in addition he imposed a nine months’ term of imprisonment for one count of theft[3] of a prime mover, an identical term for the count of attempted burglary[4] and a $200 fine for possession of a drug of dependence, namely cannabis L. Various directions for cumulation were said, and doubtless were intended, to result in a total effective sentence of 7 years and 9 months’ imprisonment, as to which it was directed that the applicant serve 5 years and 6 months before becoming eligible for parole. Various orders and declarations were made, including cancellation of his driver’s licence and declarations that the other three offences had been taken into account and that the applicant had served 729 days in custody under this sentence.
[1]Details appear below in para.[4].
[2]For which a maximum term of 15 years’ imprisonment is prescribed.
[3]For which a maximum term of 10 years’ imprisonment is prescribed.
[4]For which a maximum term of 5 years’ imprisonment is prescribed.
A number of amended and substituted grounds were relied upon by the applicant. In the first place he contends that the judge erred “in failing to take into account the delay between the commission of the offences and the passing of sentence”. Secondly, it is said that his Honour erred “in ordering greater periods of cumulation of sentence than warranted and thereby erred in application of the principle of totality”. Thirdly, it is said that the judge erred in placing insufficient weight upon the applicant’s plea of guilty and his prospects for rehabilitation.…
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 Nikodjevic [2004] VSCA 222
Case
[2004] VSCA 222
Decision Date
CaseChat Overview and Summary
The appellant, in this case, was convicted and sentenced for various offences, including handling stolen property on 28 counts, theft on 2 counts, and attempted burglary on 22 counts. The appellant committed 22 of these counts while on bail. The matter was heard in the High Court of Australia. The primary issue before the court was whether the trial judge's directions regarding the cumulation and concurrency of the sentences were valid, and if not, whether the appellant's convictions and sentences should be quashed and the matter remitted for resentencing. Additionally, the court considered the effect of any delay in the proceedings and the significance of the indication of a guilty plea at the first hearing.
The court found that the trial judge did not properly direct himself in relation to the cumulation and concurrency of the sentences. The sentences were ordered to be "upon each other" but not on any specific "base" sentence, which was not an acceptable approach. The court noted that the directions for cumulation and concurrency were invalid, leading to an improper sentencing process. Consequently, the convictions and sentences were quashed, and the matter was remitted for resentencing. The court also addressed the effect of the delay in the proceedings and the significance of the indication of a guilty plea at the first hearing. The court concluded that the delay did not prejudice the appellant's case, and the indication of a guilty plea at the first hearing did not affect the outcome of the resentencing.
The High Court, therefore, quashed the appellant's convictions and sentences and remitted the matter for resentencing. The court's decision highlighted the importance of proper directions regarding cumulation and concurrency in sentencing, and the need for courts to ensure that sentences are imposed in a manner that is both lawful and just. The court also acknowledged the significance of the indication of a guilty plea at the first hearing, which may have implications for the appellant's sentencing in the future. The case serves as a reminder to practitioners of the need to carefully consider the legal principles underlying sentencing and to ensure that the court's directions are clear and properly directed to the imposition of a just and proportionate sentence.
In light of the court's decision, the appellant's convictions and sentences were quashed, and the matter was remitted for resentencing. The court emphasised the importance of proper directions regarding cumulation and concurrency in sentencing, and the need for courts to ensure that sentences are imposed in a manner that is both lawful and just. The court also acknowledged the significance of the indication of a guilty plea at the first hearing, which may have implications for the appellant's sentencing in the future. The case serves as a reminder to practitioners of the need to carefully consider the legal principles underlying sentencing and to ensure that the court's directions are clear and properly directed to the imposition of a just and proportionate sentence.