R v Warwick

[2009] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 537 of 2009

THE QUEEN

v

DANIEL WARWICK

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JUDGES:	VINCENT and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 June 2009
DATE OF JUDGMENT:	22 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 163
JUDGMENT APPEALED FROM:	R v Warwick (Unreported, County Court of Victoria, Judge McInerney, 19 February 2009)

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CRIMINAL LAW – SENTENCE – Application for leave to appeal – Applicant pleaded guilty to two counts of theft and one count of burglary – At the time of sentencing, applicant had already served a sentence for other offending and was in the process of serving a sentence for further offending – Sentencing judge referred to the previous offences – Applicant later acquitted of previous offences – Parity – Whether sentencing discretion miscarried – Crown concession – Applicant re-sentenced. 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Matthew White & Associates

VINCENT JA:

1. I will invite Neave JA to deliver the first judgment.

NEAVE JA:

1. The applicant, Daniel Warwick, pleaded guilty in the County Court to two counts of theft and one count of burglary.  On 19 February 2009, a County Court judge sentenced him as follows: 

Count 1 (theft of a Hyundai car)         -     six months' imprisonment 

Count 2 (burglary)  -     two years' imprisonment

Count 3 (theft of six digital cameras) -     seven months' imprisonment. 

1. Since all sentences were to be served concurrently, this resulted in a total effective sentence of two years' imprisonment.  The learned sentencing judge ordered that the applicant serve a non-parole period of seven months.  The applicant now seeks leave to appeal against that sentence.

Crown concession

1. On 1 June 2006, Judge Duckett sentenced the applicant to 12 months' imprisonment on one count of trafficking in a drug of dependence (cannabis).  The applicant had completed serving that term when he was sentenced for the offences the subject of this application.  On 13 December 2006, Judge Williams sentenced the applicant to a total effective sentence of three years' imprisonment, with a minimum term of one and a half years, for three counts of firearm possession and two counts of handling stolen goods.  On 16 June 2009, this Court allowed Mr Warwick's appeal against the convictions on the offences for which he was sentenced by Judge Duckett and Judge Williams, and ordered that verdicts of acquittal be entered.[1]

   [1]R v Henderson & Warwick [2009] VSCA 136.

1. In imposing the sentences in respect of which the applicant now seeks leave to appeal, the judge below referred to the sentences imposed by Judge Duckett and Judge Williams, though he noted that these were not prior convictions.  He said that the applicant had a long history of dishonesty and drug offences. 

1. Walker, one of the applicant's co-offenders, was aged 21 at the time of the offending and was sentenced as follows: 

§Count 1 (theft of three cars)         -            six months' imprisonment; 

§Count 2 (burglary)   -            12 months' imprisonment; 

§Count 3 (theft of video cameras) -            six months' imprisonment. 

The sentencing judge made no order for cumulation, thus giving rise to a total effective sentence of 12 months.

1. The Crown submitted that although there was some difference in the backgrounds of the applicant and Walker, there was little to justify the marked difference in the sentences imposed on each in respect of counts 1 and 2 or the total effective sentence. 

1. The Crown concedes that this disparity, coupled with the sentencing judge's reference to offences of which the applicant has now been acquitted, means that the applicant has a reasonably arguable case that the sentencing discretion had miscarried.

1. In our opinion that concession is appropriate.  Accordingly it is necessary to re-sentence the applicant. 

Circumstances of the offending

1. The circumstances of the offending were as follows.  On the night of 13 March 2006, Shannon Walker, Tyson Stevens and two other men cut through a cyclone wire fence around a car storage yard and stole three cars, one of which was a white Hyundai.  On 14 March, the applicant, Walker, Stevens and Drew Elphinstone drove in the stolen Hyundai to the rear of the Good Guys store at Highpoint Shopping Centre.  Both the applicant and Elphinstone pleaded guilty to the theft of the white Hyundai (count 1), whilst Stevens and Walker pleaded guilty to the theft of the three cars from the car yard. 

1. The applicant and his co-offenders cut the cyclone fence, forced a rear door of the store and went inside (count 2).  Once inside, the men smashed a display case and took six digital cameras (count 3).  The offenders were apprehended shortly after attempting to take a safe out of the store on a trolley they had brought for that purpose. 

1. The applicant was almost 25 at the time of the offending, and has admitted numerous prior convictions from 11 court appearances. 

Conclusion

1. In addition to the personal circumstances of the applicant, some weight must to be given to the term of imprisonment he has served for offences of which he has now been acquitted. 

1. The Crown has conceded that the applicant is entitled to have the following periods of detention taken into account:

§the time spent in custody between 25 March and 23 December 2004 - 274 days (or eight months and 29 days); 

§the time spent in custody between 22 January and 14 February 2005 - 24 days;

§the time spent in custody between 15 March 2006 and 1 October 2008 - 932 days (or two years, six months and 17 days) which, for the purposes of this proceeding, is to be regarded as pre-sentence detention under s 18 of the Sentencing Act1991; and

§the time spent in custody between 15 January and 19 February 2009 (or one month and five days).

The periods other than 932 days have not been taken into account in the determination of the re-sentence in this case, but may be relevant in further proceedings. 

1. As a matter of justice, we do not consider that the applicant should serve any additional period of imprisonment.  We would re-sentence the applicant as follows: 

·           Count 1 - two months' imprisonment; 

·           Count 2 - 123 days' imprisonment; and 

·           Count 3 - one month's imprisonment. 

1. The sentences imposed on counts 1 and 3 should be served concurrently with the sentence imposed on count 2.  Having regard to the unusual circumstances of this case, the individual sentences and total effective sentence imposed on the applicant should not be taken as indicative of the sentences that would normally be imposed for offences of this kind.

VINCENT JA:

1. I agree.  The orders of the Court are:

   The application for leave to appeal against sentence is allowed.

   The appeal is treated as instituted and heard instanter and is allowed.

   The sentences imposed in the Court below are set aside and in lieu thereof the appellant is sentenced as follows:

   count 1 - two months' imprisonment;
              count 2 - 123 days' imprisonment; and
              count 3 - one month's imprisonment.
   The sentences are ordered to be served concurrently.
   It is declared that the period of 932 days which the appellant has already undergone as pre-sentence detention pursuant to s 18 of the Sentencing Act1991 be reckoned as having been served under the sentence hereby imposed and it is directed that this declaration and its details be entered in the records of the Court.
   The compensation order and the forensic sample order made in the court below are confirmed.