R v Underwood

[2008] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.  46 of  2008

THE QUEEN

v.

BRIAN UNDERWOOD

---

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

---

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.

---

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:

1. 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. 

1. 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.

1. 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.

1. 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. 

1. The submission for the appellant, which the Crown by its concession accepts, is that to comply with the requirements of parity and totality it was necessary - in the same way as the non-parole period was shortened to take account of the 'dead time' - to shorten the head sentence to take account of the 'dead time'.  As counsel for the appellant points out, a head sentence is imposed on the assumption that the sentenced person may be required to serve every day of it. 

1. Error having been conceded - and in my view the Crown’s concession was properly made - the sentencing discretion is re-opened and it falls to this Court to re-sentence the appellant. 

1. In my opinion, he should be re-sentenced as follows.  On the count of dishonestly handling stolen goods I would impose a term of imprisonment of 13 months and I would fix a non-parole period of 7 months.  The only other matter which would then need to be recorded in the sentencing is a declaration with respect to pre-sentence detention.

1. One other matter should be mentioned. In sentencing the appellant, the learned sentencing judge purported to impose a new single non-parole period under s 14 of the Sentencing Act. As counsel for the appellant has pointed out - and once again quite properly the Crown has conceded - the requirement under s 14 to fix a new single non-parole period did not apply to this case because, at the time of sentencing in February 2008, the appellant was not serving an uncompleted non-parole period.

BUCHANAN JA:

1. I agree with the President that the appeal should be allowed and the appellant

re-sentenced as his Honour proposes.

VINCENT JA:

1. I also agree.

MAXWELL P:

1. The order of the Court is appeal allowed.

---