R v Sheen - [2005] VSCA 296

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 33 of 2005

THE QUEEN
	v.
MARK FRANCIS SHEEN

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2005
DATE OF JUDGMENT:	8 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 296

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Criminal law – Sentencing – Offences committed whilst on parole – Judge not referred to principle for which R. v. Orphanides (2002) 130 A.Crim.R. 403 stands – Parole subsequently revoked – Appellant resentenced – Sentencing Act 1991, ss.15(1), 16(3B).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.R.C. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr G.M. Hughan	Victoria Legal Aid

CALLAWAY, J.A.:

The appellant, who is now aged 36, pleaded guilty in the County Court to one count of attempted armed robbery (count 1) and one count of theft (count 2). The maximum custodial penalties for those offences are 20 years’ and 10 years’ imprisonment respectively. He admitted 44 previous convictions from twelve court appearances between April 1987 and November 2001. They included numerous offences involving assault or dishonesty, a charge of robbery in October 1999 and three counts of robbery with actual violence in the District Court in Queensland in November 2001, for which the appellant was sentenced to five years' imprisonment.

After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on 8th February 2005 to four years' imprisonment on count 1 and two years' imprisonment on count 2. His Honour directed that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years' imprisonment. A non-parole period of three years and nine months was fixed.

The appellant was granted leave to appeal on 19th August 2005. There are four grounds in the full statement of grounds filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998:

"1.The learned sentencing judge erred in failing to give any consideration to the outstanding period of parole owed by the applicant when passing sentence.
2.The individual sentences imposed and the non-parole period fixed by the learned sentencing judge are manifestly excessive in all the circumstances.
3.The learned sentencing judge erred in making an order for the partial cumulation of the sentence imposed on count 2 upon the sentence imposed on count 1 that was manifestly excessive in all the circumstances.
4.There was a miscarriage of justice upon the hearing of the applicant's plea because of:
a.the failure of counsel for the applicant to provide the Court with a report as to the applicant's progress while on parole;
b.the failure of counsel for the applicant to ask that the Court obtain a report as to the applicant's progress while on parole; and
c.the failure of the learned sentencing judge to seek a report as to the applicant's progress while on parole."

The circumstances of the offending may be briefly stated. At about 3.10 p.m. on 30th…

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 Sheen

Details

AGLC: R v Sheen [2005] VSCA 296
Case: [2005] VSCA 296
Decision Date: 8 December 2005

CaseChat Overview and Summary

In the case of R v Sheen, the appellant, who was on parole following a previous conviction, committed further offences, leading to a sentencing appeal. The appellant was initially sentenced for the new offences while on parole, and subsequently, his parole was revoked. The court was tasked with determining whether the initial sentencing was appropriate, particularly in light of the appellant's parole status at the time of the new offences. The legal issues centred on whether the sentencing judge had correctly considered the principles established in R v Orphanides, which pertains to sentencing offenders on parole. The appellant argued that the sentencing judge had not adhered to the principle set out in Orphanides, and thus, the sentence was incorrect.

The court examined the sentencing principles relevant to offenders on parole, as articulated in Orphanides, and assessed whether these principles were properly applied. It was noted that the judge did not specifically refer to the Orphanides principle during sentencing, which raised the question of whether this omission impacted the fairness and appropriateness of the sentence. The court considered whether the sentence was proportionate and whether the parole status of the offender should have influenced the sentencing process. Ultimately, the court concluded that the initial sentence was not inappropriate, but it was acknowledged that the principle from Orphanides should have been considered. As a result, the court ordered a resentencing of the appellant, taking into account the correct legal principles.

The court ordered that the appellant be resentenced by a different sentencing judge, who would appropriately consider the principle established in Orphanides. This decision underscored the importance of correctly applying sentencing principles, particularly in cases involving offenders on parole. The outcome emphasised the need for sentencing judges to be aware of and apply relevant legal precedents to ensure that sentences are fair and just. The appellant's resentencing would be conducted with full regard to the legal principles that should have been applied at the initial sentencing hearing.

Orders