R v Smith - [2006] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 191 of 2005

THE QUEEN
	v.
MARK ANTHONY SMITH

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JUDGES:	WARREN, C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2006
DATE OF JUDGMENT:	15 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 23

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Criminal Law – Sentencing – Offences committed whilst on parole – Parole revoked as a result of committing present offences – Time spent in custody for previous offences following revocation of parole to be taken into account in determining head sentence and non-parole period for present offences – Sentencing Act 1991, s.18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D. Grace, QC	Office of David Grace, QC

WARREN, C.J.:

I invite Chernov, J.A. to state his reasons for judgment first.

CHERNOV, J.A.:

This is an appeal against the total effective sentence of three years and seven months' imprisonment, with a non-parole period of two years and two months, that was imposed on the appellant by a County Court judge on 17 June 2005, in respect of four counts on a presentment to which he pleaded guilty, namely:

Count 1:Assaulting a member of the police force in the due execution of duty.
Count 2:Escaping from legal custody.
Count 3:Being a prohibited person, possessing, carrying or using an unregistered firearm.
Count 5:Trafficking in a drug of dependence.

The maximum custodial penalty for the offences that are the subject of counts 3 and 5 is 15 years.[1]

[1]On 25 November 2005, this Court granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958.

The circumstances giving rise to the offences alleged in counts 1 to 3 arose on 16 September 2004 when, at approximately 12.10a.m., the vehicle in which the appellant was a passenger was intercepted by a police officer on the Hume Highway near Glenrowan. It seems that the police were in possession of information indicating that the appellant was armed with a handgun and might be in possession of drugs. When the police officers sought to search a small bag that was tied around the appellant's waist, and after he was told that he was under arrest, the appellant pushed the police officer in the chest, forcing him to stumble backwards (count 1). He then ran into the darkness (count 2). Later that day, the police searched the vicinity and located a semi-automatic .22 calibre pistol that had no ammunition and no magazine. The weapon was not registered in Victoria and, on testing, was found to be in working order (count 3). Two days later, on 18 September 2004, the appellant was arrested in a Melbourne suburb. When the police attended his premises they located there, amongst other things, a set of scales and 125 grams of white powder, which was analysed and found to be 30 per cent pure amphetamine. The appellant later admitted that he planned to take the drugs to Queensland for…

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 Smith

Details

AGLC: R v Smith [2006] VSCA 23
Case: [2006] VSCA 23
Decision Date: 15 February 2006

CaseChat Overview and Summary

The appellant, Smith, was convicted of various offences committed while on parole from a previous sentence. Smith appealed against the sentencing order, arguing that the trial judge had erred in calculating the head sentence and non-parole period for the present offences by including the time spent in custody for the previous offences following the revocation of parole. The appeal was heard in the Court of Criminal Appeal.

The legal issues before the court involved the interpretation and application of section 18 of the Sentencing Act 1991. Specifically, the court needed to determine whether the time spent in custody for previous offences following the revocation of parole should be considered in calculating the head sentence and non-parole period for the present offences. The court examined the statutory language and relevant case law to resolve this issue.

The court held that section 18 of the Sentencing Act 1991 required the trial judge to consider the time spent in custody for previous offences following the revocation of parole when determining the head sentence and non-parole period for the present offences. The court found that the trial judge had correctly applied the statutory provisions in this regard. The appeal was dismissed, and the original sentencing order was upheld.

No additional orders were made by the court.

Orders