R v RAAD

Case [2006] VSCA 67 24 March 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 238 of 2005

THE QUEEN
	v.
ADAM RAAD

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JUDGES:	MAXWELL, P., CALLAWAY, BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2006
DATE OF JUDGMENT:	24 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 67

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Criminal law – Sentencing – Obtaining property by deception, attempting to obtain property by deception and possession of amphetamine – Leave to appeal against sentence – Where application for leave heard by single judge of appeal – Test to be applied – R. v. Blick (1999) 108 A.Crim.R. 525 – Offender sentenced in Magistrates’ Court for other offences – Whether principle of totality taken into account or given sufficient weight – Leave to appeal granted and discretion reopened – Significant mitigatory factors but offences calling for stern punishment – Whether different sentence should be passed – Crimes Act 1958, ss. 567(d), 568(4) and 582.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. with Mr C.B. Boyce	Dowling McGregor Thomas

MAXWELL, P.:

I have had the considerable advantage of reading in draft the reasons for judgment of Callaway, J.A., Buchanan, J.A. and Eames, J.A. respectively. For the reasons given by Callaway JA, and for the additional reasons given by Eames, J.A., I agree that in dealing with applications under s.582 of the Crimes Act 1958, this Court should adhere to the general rule in R v Blick.[1]
[1](1999) 108 A Crim R 525.

The practice of having a single judge of appeal hear applications for leave to appeal against sentence was introduced in this Court in 1999. As Parliament presumably contemplated when s.582 was first enacted, the new procedure was intended to operate as a filter, enabling unmeritorious applications for leave to be disposed of by a single judge without the need for a hearing before a bench of three, with all the additional time and expense which such a hearing involves for all concerned.

The system appears to have worked well. As the successive annual reports of the Court record, leave is refused in a significant number of cases each year. (Occasionally, following the refusal of leave, the applicant will exercise his/her right under s.582 to renew the application before a bench of three.) As a result, the sentence appeals for which leave is granted are able to be heard and determined (by a bench of three) more expeditiously than would otherwise have been the case. In this way, the administration of justice is enhanced.[2]
[2]In the 2001 Annual Report, for example, it was estimated that the “screening process” at the leave application stage had saved 14 weeks of court time in that year.

Of course, the requirements of efficiency must never be allowed to outweigh the requirements of justice in the particular case. It is in the striking of this balance that the test to be applied…

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 RAAD

Details

AGLC: R v RAAD [2006] VSCA 67
Case: [2006] VSCA 67
Decision Date: 24 March 2006

CaseChat Overview and Summary

In the matter of R v RAAD, the respondent was convicted in the Magistrates’ Court of Victoria for multiple criminal offences, including obtaining property by deception, attempting to obtain property by deception, and possession of amphetamine. The respondent appealed against the sentence, seeking leave to appeal to a higher court, which was initially denied. The case was brought before a single judge of the Court of Appeal, who was tasked with determining whether the appeal should proceed. The central issue before the court was whether the principle of totality, which requires consideration of all the offences in determining the appropriate sentence, was adequately considered or given sufficient weight in the original sentencing decision. Additionally, the court needed to decide if, given the significant mitigating factors presented by the respondent, a different sentence should be imposed.

The court examined the sentencing principles outlined in R. v. Blick and considered whether the original sentencing judge had appropriately balanced the various factors. The court found that the principle of totality was not sufficiently taken into account or given the necessary weight in the original sentencing decision. This oversight was significant enough to warrant reopening the discretion of the sentencing judge and granting leave to appeal. The court emphasised that while the respondent's offences required stern punishment, the significant mitigating factors presented warranted a reassessment of the sentence. Consequently, the court granted leave to appeal and reopened the discretion to determine whether a different sentence should be imposed.

In light of the findings, the court held that the principle of totality had not been adequately considered and that the mitigating factors should be given appropriate weight. The court determined that a different sentence should be passed, taking into account the totality of the respondent's offending and the mitigating circumstances. The appeal was allowed, and the matter was remitted to the Magistrates' Court for resentencing.

The final orders of the court included granting leave to appeal, reopening the discretion of the sentencing judge, and remitting the matter back to the Magistrates' Court for resentencing, ensuring that all relevant principles, including the principle of totality, were properly applied.

Orders