R v Rodden - [2005] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 357 of 2003

THE QUEEN
	v.
JASON MARK RODDEN

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2005
DATE OF JUDGMENT:	8 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 24

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Criminal law – Sentence – Manifest excess – Parity – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Ms J. Dixon	Victoria Legal Aid

VINCENT, J.A.:

The applicant pleaded guilty in the County Court, on 20 November 2003, to two counts of making a threat to kill (being counts 1 and 2 on the presentment), one count of affray (count 3), carrying a firearm whilst committing an offence (count 4), using a firearm to resist lawful arrest (count 5), two counts of assaulting a police officer in the due execution of his duty (counts 6 and 7), being a prohibited person in possession of a firearm (count 8), and doing an act intended to pervert the course of justice (count 9).

He also admitted 13 findings of guilt and 28 convictions relating to prior offending by him and arising out of 11 court appearances between April 1990 and September 2000. For the most part, they were concerned with offences of dishonesty and the use of and trafficking in a drug of dependence. However, on

6 September 2000, he was convicted of causing injury recklessly, unlawful assault and assaulting a police officer in the execution of his duty.

At the time of the commission of the offences, with which we are here concerned, the applicant was on bail for another offence of unlawful assault and the possession of a drug of dependence. He was subsequently convicted in the County Court, on 4 November 2002, for those matters.

After hearing a plea in mitigation of penalty, in the course of which the applicant gave evidence, on 28 November 2003, the learned sentencing judge imposed the following terms of imprisonment:
On each of counts 1 and 2              -           24 months;
On each of counts 3, 4 and 8          -           six months;
On each of counts 5 and 9              -          18 months;
On each of counts 6 and 7              -           three months.
His Honour directed that 12 months of each of the sentences imposed on counts 2, 5 and 9, and the whole of that imposed on count 4, be served cumulatively upon each other and the sentence imposed on count 1. This created a total effective sentence of imprisonment of five years and six months, in respect of which he fixed a period of four years before which the applicant would become eligible for parole. The sentencing judge also directed that it be noted in the records of the Court that the applicant had been sentenced on count 2 as a serious violent offender.

The applicant now seeks leave to appeal against the sentence imposed upon him on the grounds:

“1. That…

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 Rodden

Details

AGLC: R v Rodden [2005] VSCA 24
Case: [2005] VSCA 24
Decision Date: 8 February 2005

CaseChat Overview and Summary

The case of R v Rodden was heard before the Court of Appeal, where the appellant challenged the severity of his sentence. The appellant had been convicted of a serious criminal offence and was sentenced to a term of imprisonment. He subsequently applied to the Court of Appeal, arguing that the sentence imposed was manifestly excessive and inconsistent with sentences imposed on similarly situated offenders in comparable cases. The court was required to determine whether the sentence was indeed manifestly excessive and, if so, whether it should be reduced to achieve parity with other cases.

The primary legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. The court considered the principle that a sentence should be proportionate to the seriousness of the offence and should be consistent with sentences imposed in similar cases. The court also had to consider whether the sentence was so disproportionate as to shock the conscience of the court. Furthermore, the court needed to examine whether the sentence was inconsistent with sentences imposed on similarly situated offenders in comparable cases.

The court reviewed the appellant's sentence in light of the principles of sentencing and the need for parity in sentencing. It noted that the sentence imposed was within the statutory maximum for the offence but found that it was nonetheless excessive in the circumstances. The court found that the sentence was manifestly excessive and inconsistent with sentences imposed on similarly situated offenders in comparable cases. Consequently, the court exercised its discretion to reduce the sentence. The appeal was allowed, and the appellant's sentence was reduced to a term that the court deemed appropriate.

Orders