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):

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.

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.

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.

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…

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 Ripper

Details

AGLC: R v Ripper [2008] VSCA 40
Case: [2008] VSCA 40
Decision Date: 11 March 2008

CaseChat Overview and Summary

In the matter of R v Ripper, the defendant was sentenced for multiple criminal offences. Ripper appealed his sentence, arguing that the trial judge had failed to properly consider the time already served and did not specify the commencement date of the new non-parole period. The appeal was heard in the High Court of Australia. The central legal issues were whether the trial judge's failure to properly calculate the new non-parole period constituted a significant error in the sentencing process and if the omission of the commencement date of the new non-parole period was a material irregularity.

The court found that the trial judge's failure to specify the commencement date of the new non-parole period was a significant error. The court held that under the Sentencing Act, the sentencing court is required to fix a new single non-parole period for all sentences when imposing a new sentence before the completion of a non-parole period already being served. Furthermore, the court determined that the failure to take account of the time already served was a material irregularity that warranted the appeal. The court concluded that these errors materially affected the sentence and necessitated a review of the case.

Consequently, the High Court allowed the appeal, quashed the sentence imposed by the trial judge, and remitted the matter to the sentencing court for re-sentencing. The court emphasised that the sentencing court must now fix a new single non-parole period for all sentences and properly account for the time already served. The decision underscores the importance of correctly calculating and specifying the non-parole period to ensure the sentence aligns with legislative requirements and the defendant's rights.

Orders