R v Scholes - [2007] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 148 of 2006

THE QUEEN
	v
GRANT ASHLEY SCHOLES

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JUDGES:	MAXWELL P, BUCHANAN JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2007, 28 November 2007
DATE OF JUDGMENT:	14 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 303

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CRIMINAL LAW — Sentence — Guilty plea to armed robbery (3 counts), theft (7 counts), common assault (1 count), aggravated burglary (1 count), destruction or damage of property (3 counts), conspiracy to commit an offence (1 count), reckless driving (3 counts), burglary (1 count), attempted theft (1 count), failure to answer bail (1 count), driving while disqualified (2 counts) and unlawful assault (1 count) — Whether judge erred by ordering excessive cumulation of sentences — Totality — Fresh evidence — Circumstances of incarceration — Further psychological report — Cancellation of parole — Further material save as to parole cancellation not admissible — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Victoria Legal Aid

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Whelan AJA. I agree that the appeal should be dismissed, for the reasons which his Honour gives.

BUCHANAN JA:

In my opinion, the appeal should be dismissed for the reasons stated by Whelan AJA.

WHELAN AJA:

This is an appeal against sentences passed upon the appellant in the County Court on 19 May 2006. The appellant had pleaded guilty to seven counts of theft, three counts of armed robbery, one count of common assault, one count of aggravated burglary, three counts of destroying or damaging property, one count of conspiracy to commit an offence (a burglary), three counts of reckless conduct endangering persons, one count of burglary, and one count of attempted theft. In all, there were 21 counts on the presentment. In addition, the trial judge sentenced the appellant on four summary offences, being two offences of driving whilst disqualified, an offence of failing to answer bail, and an offence of unlawful assault. The appellant had also pleaded guilty to those summary offences.

The trial judge heard a plea on behalf of the appellant on 6 April 2006 and heard further submissions on 19 May 2006 prior to passing sentence. The appellant was sentenced to terms of imprisonment on each of the various charges and directions were made as to cumulation as a consequence of which the total effective sentence was 13 years 3 months’ imprisonment. The trial judge fixed a non-parole period of 10 years.

The trial judge’s reasons for sentence are full and detailed. In those reasons the trial judge summarises the circumstances relating to each of the various offences. Save for an error concerning one aspect of one of the reckless conduct offences, it is not suggested that the trial judge inaccurately summarised the circumstances of the various offences. I will not repeat the summary which…

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 Scholes

Details

AGLC: R v Scholes [2007] VSCA 303
Case: [2007] VSCA 303
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of R v Scholes was heard in the Court of Appeal, where the respondent, Scholes, appealed against his sentence. Scholes had pleaded guilty to multiple offences including armed robbery, theft, assault, burglary, reckless driving, and failure to comply with bail conditions. The court had to determine whether the trial judge had erred in the cumulative sentence imposed.

The appeal centred on the trial judge’s approach to sentencing, specifically whether the cumulation of sentences was excessive and whether the judge had considered all relevant mitigating factors, including fresh evidence presented after sentencing. The appeal also questioned whether the judge had appropriately considered the totality of the circumstances, including Scholes' conduct while incarcerated and a new psychological report.

The Court of Appeal found that while the trial judge had taken into account the fresh evidence regarding Scholes' behaviour in prison and his psychological profile, the judge was not obliged to consider further material unless it related to the cancellation of parole. The court held that the sentence imposed was within the range of appropriate penalties for the offences committed. The appeal was dismissed as the totality principle had been correctly applied, and the judge had appropriately balanced the aggravating and mitigating factors in reaching the sentence.

The court confirmed the sentence imposed by the trial judge, finding no error in the process or outcome. The appeal was dismissed, and the original sentence stood.

Orders