R v Ripper

[2008] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 218 of 2007

THE QUEEN

v

DAMIAN PAUL RIPPER

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JUDGES:	MAXWELL P, NEAVE JA and COLDREY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2008
DATE OF JUDGMENT:	11 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 40

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CRIMINAL LAW – Sentencing – Sentence imposed before completion of non-parole period already being served – Obligation of sentencing court to fix new single non-parole period for all sentences – Failure to specify commencement date of new non-parole period – Failure to take account of time already served – Appeal allowed – Sentencing Act s 14(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr DA Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid, Geelong

MAXWELL P (for the Court):

1. On 14 December 2006, this Court re-sentenced the appellant on a separate charge to a total effective sentence of four years and six months, with a non-parole period of two years and six months.  Pre-sentence detention of 64 days was noted.  That re-sentencing took effect on 24 May 2006, being the date of the original sentence under appeal.  The effect of the re-sentencing was that the appellant had an earliest release date of 21 September 2008. 

1. On 23 July 2007, the appellant pleaded guilty before a judge of the County Court to one charge of attempting to pervert the course of justice. The judge sentenced the appellant to two years' imprisonment. He ordered that twelve months be served cumulatively upon the sentence which the appellant was then serving – that is, the revised sentence imposed by the Court of Appeal in re-sentencing the appellant. His Honour declared that the total sentence was five years and six months, that being the effect of the order for cumulation. His Honour then said: 'I direct, pursuant to s 14 of the Sentencing Act, that you serve three years before becoming eligible for parole’.  His Honour did not state the date from which the new single non-parole period was to be effective. 

1. In accordance with established authority,[1] the new single non-parole period fixed in accordance with s 14(1) should be stated to operate from the date on which it is fixed. If the non-parole period of three years commenced on the date of sentence, being 23 July 2007, the appellant would have to serve at least until 23 July 2010 in custody. This would amount to an effective non-parole period, starting from 24 May 2006, of four years and two months. It is the joint submission of the appellant and the Crown that this cannot have been what his Honour intended. We share that view.

   [1]R v Rich (2002) 4 VR 155.

1. We proceed on the basis that his Honour fixed the single non-parole period of three years by reference to the new head sentence of five years and six months.  On our calculations, the effect of so doing was to maintain almost precisely the ratio between non-parole period and head sentence which the Court of Appeal had fixed in December 2006.  The appellant commenced serving the original non-parole period on 24 May 2006.  As at 23 July 2007, he had already served one year and two months of the non-parole period.  The unserved portion of the three-year non-parole period was, at that date, one year and 10 months.  Since, as we have said, it was his Honour's apparent intention to require the appellant to serve three years before being eligible for parole, the single non-parole period should have been fixed at one year and 10 months, to commence from the date of sentence. 

1. It follows, in our view – and this is in substance consented to by the Crown – that the appellant should be re-sentenced.  The head sentence will remain the same but the new non-parole period will be one year and 10 months, to commence from 23 July 2007.  That will have the effect, on our calculation, that the appellant will become eligible for parole in May 2009.  Making allowance for the pre-sentence detention to which we referred earlier, his date of eligibility for parole will be two months earlier than that date. 

1. Accordingly, the orders of the Court will be as follows:

   1.        Appeal allowed.

   2.The sentence imposed in the County Court on 23 July 2007 be set aside.  In lieu thereof, the appellant be sentenced, on the count of attempting to pervert the course of justice, to two years' imprisonment. 

   3.We order that one year of that term be served cumulatively on the sentence already being served. 

   4.Pursuant to s 14(1) of the Sentencing Act, we fix a new single non-parole period of one year and 10 months in respect of all sentences the appellant is to serve. 

2. For the avoidance of any doubt, it will be noted in the order that the new non-parole period thus fixed is to be taken to have commenced on 23 July 2007, the date of the original sentencing.  It will also be noted that the 64 days of pre-sentence detention declared in respect of the earlier sentence is to be dealt with administratively.

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