R v Peters

[2005] VSCA 290

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 321 of 2005

THE QUEEN

v.

STEPHEN PETERS

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2005
DATE OF JUDGMENT:	6 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 290

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Criminal law – Sentence – Correction of inadvertent error by sentencing judge – Application granted – Applicant re-sentenced to give effect to intention of sentencing judge.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Ms J.A. Dixon	Victoria Legal Aid

CALLAWAY, J.A.:

1. I invite Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.: 

1. It is necessary to deal with this matter only very briefly in view of the grounds upon which the application has come before the Court.

1. The applicant pleaded guilty on 15 August 2005 before a judge in the Trial Division of this Court to one count of intentionally causing serious injury to a person.  This offence was committed on 21 March 2004.  After hearing a plea in mitigation of penalty, the learned sentencing judge on 22 September 2005 imposed a term of imprisonment of four years, two years of which he directed were to be served concurrently with a sentence earlier imposed in another court upon the applicant on 18 February 2004.  His Honour fixed what he understood a new non-parole period of two years. 

1. No challenge has been advanced with respect to either the head sentence or the minimum term fixed in this case.  There is nothing to suggest that in arriving at the sentence his Honour may have fallen into error in any specific respect and the sentence itself appears, in my view, to be clearly within the range of dispositions available in the proper exercise of the sentencing discretion.  Accordingly, there is no need in the circumstances to set out the character of the applicant's offending, his extensive criminal history or his background and individual situation.

1. A problem, however, has arisen because, as his report to this Court makes clear, his Honour intended that the sentence imposed by him would result in a head sentence of four years to commence on 18 February 2004, with a non-parole period of two years. The significance of the date 18 February 2004 was, as I have indicated, that the applicant was at that time sentenced in the Magistrates' Court at Melbourne to imprisonment for an aggregate term of two years with a non-parole period of 12 months for a number of other offences. The minimum term fixed for that sentence had, of course, expired prior to the date of the imposition of the sentence presently under consideration. The applicant, who was also awaiting extradition to South Australia for breach of an earlier parole order granted in that state, was serving out the balance of the two-year term. His Honour formed the view that the appropriate course in these circumstances was to increase effectively the maximum period of imprisonment to be served in Victoria by two years and the minimum term by 12 months. Unfortunately, he did not appreciate that s.14 of the Sentencing Act, on the basis of which he fixed a new non-parole period, was not applicable where the parole period fixed under an earlier sentence had already been served, and therefore that the sentence that he was handing down could operate only from the date on which it was imposed.

1. In order to correct this position and to give effect to his Honour's intention, it has been submitted by Ms Dixon on behalf of the applicant that the proper course for us to adopt would be to set aside the sentence imposed in the court below and in lieu thereof substitute a sentence of two years and five months with a non-parole period of five months.  Mr McArdle, who appears on behalf of the prosecution, does not dissent from the adoption of this approach.

1. Accordingly, I would propose that the application for leave to appeal should be granted, the sentence imposed on 22 September 2005 be set aside and in lieu thereof a sentence of imprisonment of two years and five months with a non-parole period of five months be substituted.

CALLAWAY, J.A.: 

1. I agree.

BUCHANAN, J.A.: 

1. I also agree.

CALLAWAY, J.A.: 

1. The formal orders of the Court will be as follows:

1.        The application for leave to appeal against sentence is granted.

2.        The appeal is treated as instituted and heard instanter and is allowed.

3.        The sentence imposed in the Trial Division on 23rd September 2005 is set aside.

4.        In lieu thereof, the appellant is sentenced to two years and five months' imprisonment and a non-parole period of five months is fixed.

5.        That sentence and that non-parole period are deemed to have commenced on 23rd September 2005.

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