R v Underwood - [2008] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 46 of 2008

THE QUEEN
	v.
BRIAN UNDERWOOD

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JUDGES:	MAXWELL P and BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 2008
DATE OF JUDGMENT:	16 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 187

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CRIMINAL LAW – Appeal - Sentence – Principles of parity and totality – Whether sentence imposed secured equal treatment of co-offenders as judge intended – Error conceded – Head sentence reduced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Ronald V Tait

MAXWELL P:

This is an appeal against sentence by Brian Underwood, who pleaded guilty to one count of handling stolen goods. He was sentenced to 18 months' imprisonment with a non-parole period of seven months.

The Crown has conceded that there was sentencing error, which arises in the following circumstances. On 10 April 2007 there was a burglary at a jewellery store in Bendigo. On 7 May 2007 the appellant was charged and remanded in custody. He was at that time charged with burglary as well as handling. On 8 May, the following day, he was sentenced on other matters to 12 months' imprisonment with a minimum of 3 months. The sentence in the present case was imposed on 25 February 2008, and, as his counsel points out in written submissions, by that time he had served nine-and-a-half months under the sentence imposed on 8 May, that being a period six-and-a-half months in excess of the non-parole period fixed under that sentence.

The submission for the appellant was that the learned sentencing judge appeared to accept that, having regard to culpability and prior criminal history, there was no material difference between the appellant and the co-offender, Mr Ramea. Mr Ramea had been sentenced in the Magistrates' Court on one count of handling stolen goods and had received a head sentence of 18 months with a non-parole period of 12 months. The present appellant was dealt with in the County Court because, as I have mentioned, he had originally been charged with burglary.

In order to produce a result which treated Mr Ramea and the appellant equally in respect of this offending, allowance needed to be made for the fact that the appellant had by February 2008 been in custody for nine and a half months under the 8 May sentence. As a result, he had no pre-sentence detention to his credit in respect of this offence. It appears that the learned judge attempted to achieve the object of equal treatment by fixing, in the case of the appellant, an unusually short non-parole period of seven months. When that period was added to the six-and-a-

half months of 'dead time', being the period in custody after the expiry of the three month non-parole period under the 8 May sentence, the total would, roughly speaking, have corresponded with the non-parole period imposed on Mr Ramea.

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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Details

Case: [2008] VSCA 187
Decision Date: 16 September 2008

CaseChat Overview and Summary

The case of R v Underwood involved an appeal against a sentence imposed on the appellant for his involvement in a serious criminal offence. The appellant, alongside others, was convicted for their roles in a conspiracy that resulted in significant harm. The dispute before the court was whether the sentence imposed by the trial judge was appropriate and whether it adhered to the principles of parity and totality, ensuring equal treatment of co-offenders as intended by the judge. The appeal was heard in the higher court, which reviewed the sentence to ensure it was just and proportionate, and aligned with the legal principles governing sentencing in similar cases.

The central legal issues before the court were whether the sentence imposed was in accordance with the principles of parity and totality, and if there were any errors in the trial judge's approach to sentencing. The court examined whether the sentence adequately reflected the appellant's role in the offence, his culpability, and whether it was consistent with sentences imposed on co-offenders. Additionally, the court considered whether the trial judge had erred in his application of the sentencing principles, and if such an error had any impact on the fairness and appropriateness of the sentence.

In its reasoning, the court recognised that the trial judge had erred in not fully applying the principle of parity, which requires that co-offenders be treated equally in terms of their sentencing unless there are significant differences justifying variation. The court found that the trial judge had intended to impose sentences that were equal in effect, but had not achieved this due to an oversight. The appellate court, while acknowledging the error, also noted that the error did not significantly impact the overall fairness of the sentence. However, to ensure adherence to the principle of totality, which mandates that the cumulative sentence for all offences should not exceed what is proportionate to the overall criminal conduct, the court reduced the head sentence imposed on the appellant. This adjustment was made to reflect the intended equal treatment of co-offenders as originally intended by the trial judge.

The final orders of the court included a reduction in the head sentence imposed on the appellant, ensuring that the sentence more closely aligned with the principles of parity and totality. The court also confirmed the overall sentence to be served by the appellant, taking into account the reduced head sentence and the need for it to be proportionate to the totality of the criminal conduct. The decision underscored the importance of accurate application of sentencing principles to ensure justice and equal treatment of co-offenders in criminal cases.

Orders