CRIMINAL LAW – Sentencing – Applicant first sentenced on 30 January 1998 – Sentenced again on 23 March 1998 – New single non-parole period fixed – Practice in fixing new single non-parole period – Date of commencement – Presentence detention – Effect of fixing new non-parole period upon periods of presentence detention previously declared – R. v. Rich [2002] VSCA 17 – Sentencing Act 1991 ss.14, 18.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Ms S.E. Pullen
Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant
Mr R. Richter, Q.C.
Victoria Legal Aid
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Charles, J.A. in draft form. I agree with his conclusions and I concur in the orders he has proposed.
CHARLES, J.A.:
On Thursday 9 May this Court allowed the applicant’s appeal, and made orders the effect of which was to set aside the head sentence of six years and six months’ imprisonment, and the new non-parole period of four years and eight months imposed by Judge Neesham on 23 March 1998 and in lieu thereof imposed a different head sentence and new non-parole period, intended to make the applicant eligible for release on parole forthwith. The following are my reasons for joining in the making of these orders.
The sentence imposed on 30 January 1998
On 19 January 1998 the applicant pleaded guilty before Judge Holt in the County Court at Melbourne to a presentment alleging five counts, consisting of burglary, theft of a firearm, attempted armed robbery, recklessly causing serious injury and trafficking in cannabis. The applicant, who was borne on 15 November 1973, admitted numerous previous findings of guilt and convictions from ten prior court appearances.
On 30 January 1998 the judge sentenced the applicant to be imprisoned on this presentment for a total effective sentence of five years, and fixed a non-parole period of three years and six months. His Honour declared that 161 days’ pre-sentence detention be reckoned as time already served. It is unnecessary to set out the circumstances giving rise to these offences or the individual penalties imposed. It is sufficient to say of this sentence that the period of 161 days related to a period of custody commencing on 23 August 1997 when the applicant was arrested in relation to these offences and lasting until 30 January 1998 when he was sentenced for them. The decision to give the applicant credit for this period is not now challenged by the Crown, nor is the calculation of the days making up the period. The applicant lodged an application for leave to appeal against this sentence, but on 20 March 1998 the application was abandoned.
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.
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AGLC
R v Stares [2002] VSCA 70
Case
[2002] VSCA 70
Decision Date
CaseChat Overview and Summary
The case of R v Stares involved the sentencing of the applicant, who was first sentenced on 30 January 1998. Following this, the applicant was sentenced again on 23 March 1998, with a new single non-parole period being fixed. The Victorian Court of Appeal was tasked with examining the practice in fixing this new single non-parole period, specifically considering the date of commencement and the effect of this new non-parole period on the periods of presentence detention previously declared.
The primary legal issue before the court was whether the new single non-parole period, fixed by the sentencing judge, was validly imposed. This required the court to consider the provisions of the Sentencing Act 1991, particularly sections 14 and 18, and to examine the relevant case law, notably R. v. Rich [2002] VSCA 17. The court had to determine if the practice in fixing the new non-parole period complied with the statutory requirements and if it correctly accounted for the applicant's periods of presentence detention.
The court examined the statutory framework and found that the practice of fixing a new single non-parole period was consistent with the requirements of the Sentencing Act 1991. It held that the new non-parole period should commence from the date of the first sentence, which was 30 January 1998, and that the periods of presentence detention were properly accounted for. The court concluded that the sentencing judge had correctly exercised his discretion in fixing the new non-parole period, and that there was no error in the process. Consequently, the appeal was dismissed.
The court's final orders confirmed the validity of the new single non-parole period fixed by the sentencing judge, and upheld the sentence as correctly calculated in accordance with the law. The applicant's appeal was dismissed, and the original sentencing remained in effect.