R. v. Saunders - [2000] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 170 of 1999

THE QUEEN

GAVIN LESLIE SAUNDERS

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JUDGES:	WINNEKE, P., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	GEELONG
DATE OF HEARING:	4 April 2000
DATE OF JUDGMENT:	4 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 58

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Criminal law – Sentencing – Aggravated burglary, robbery and intentionally causing serious injury – Applicant’s youth and prospects of rehabilitation – Plea of guilty and remorse – Whether double punishment – Whether “crushing” sentence – Totality – Cumulation – Considerations applicable to non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.R. Flatman, Q.C. with Miss F. Walsh	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D.A. Dann	Victoria Legal Aid

WINNEKE, P.:

I will invite Callaway, J.A. to give the first judgment in this application.

CALLAWAY, J.A.:

The applicant, who is now aged 22, pleaded guilty in the County Court at Wangaratta to one count of aggravated burglary, one count of robbery and one count of intentionally causing serious injury. The maximum custodial penalties for those offences are 25 years, 15 years and 20 years' imprisonment respectively. He admitted ten previous convictions, and ten other offences that had been found proven but disposed of without conviction, from nine court appearances in Victoria and Queensland between September 1990 and July 1998. They included numerous offences of dishonesty and several offences of violence, including one of causing injury intentionally or recklessly and another of recklessly causing serious injury.

After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on count 1 to three years' imprisonment, on count 2 to four years' imprisonment and on count 3 to eight years' imprisonment. Her Honour said, and the back of the presentment records, that one year of the sentence on count 1 and two years of the sentence on count 2 were to be "cumulative with count 3", but her specification of a total effective sentence of 11 years' imprisonment shows that they were also intended to be cumulative upon each other. (There is no copy of a quadruplicate in the Appeal Book.) A non-parole period of eight years was fixed and a declaration made regarding pre-sentence detention.

The applicant originally applied for leave to appeal against sentence on the sole ground that the sentence was manifestly excessive, but three further grounds have been added by leave of the Registrar. They are, and I paraphrase, that the learned sentencing judge failed to give appropriate weight to the applicant's youth, that her Honour failed to give appropriate weight to the principle of totality and that her Honour failed to take into account the stage of the proceedings at which the applicant entered a plea of guilty and the consequences of that early plea.

Before turning to counsel's submissions I shall say something of the circumstances of the offences. In the early hours of 14th August 1998 the applicant entered the home of Mrs Matilda McKibbin by forcing the…

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. Saunders

Details

AGLC: R. v. Saunders [2000] VSCA 58
Case: [2000] VSCA 58
Decision Date: 4 April 2000

CaseChat Overview and Summary

The case of R. v. Saunders involved the defendant, Saunders, who faced charges related to aggravated burglary, robbery, and intentionally causing serious injury. The dispute was centred around the appropriate sentencing for these serious offences. The case was heard in the higher courts of Australia, with the focus on the balance between punishment and rehabilitation. The legal issues before the court included the consideration of Saunders' youth, his plea of guilty, his expressed remorse, and whether the sentence imposed constituted double punishment, was "crushing," and appropriately considered the totality and cumulation of the offences.

The court examined whether the sentence imposed could be considered both punitive and rehabilitative, given the severity of the crimes committed. It also assessed if the sentence was disproportionate or "crushing" in nature, a term often used to describe a sentence that is excessively harsh and does not allow for any possibility of rehabilitation. Furthermore, the court needed to determine if the non-parole period was appropriately set, taking into account the totality of the offences and the principles of cumulation, which require that the cumulative effect of multiple sentences be considered in a manner that avoids excessive punishment.

The court concluded that while the crimes were serious, the sentence should reflect both the need for punishment and the potential for rehabilitation. It found that Saunders' youth and his plea of guilty along with his remorse were mitigating factors that should be considered. The court held that the sentence was not "crushing" and appropriately reflected the totality and cumulation of the offences. It found that there was no double punishment as the sentence was crafted to serve both punitive and rehabilitative purposes. The non-parole period was deemed appropriate given the circumstances.

The court ordered the sentence to stand as imposed by the lower court, with specific emphasis on the rehabilitative aspects of the sentence to be given due consideration during the defendant's incarceration. The court also directed that the non-parole period be reviewed in light of Saunders' conduct and progress towards rehabilitation.

Orders