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:

I will invite Neave JA to deliver the first judgment.

NEAVE JA:

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.

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

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.

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.

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;

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 Warwick

Details

AGLC: R v Warwick [2009] VSCA 163
Case: [2009] VSCA 163
Decision Date: 22 June 2009

CaseChat Overview and Summary

The case of R v Warwick involved an application for leave to appeal against the applicant's sentence. The applicant had pleaded guilty to two counts of theft and one count of burglary. The sentencing judge had taken into account the applicant's previous offending history, which was relevant at the time of sentencing. However, the applicant was later acquitted of those previous offences. This case raises the question of whether the sentencing discretion was miscarried due to the consideration of these acquitted offences. The Crown conceded that the sentencing was flawed and the case proceeded to re-sentencing.

The central legal issue before the court was whether the sentencing discretion had miscarried because the sentencing judge had considered the acquitted previous offences. The applicant argued that the consideration of these offences was inappropriate and that the sentence should be re-assessed in light of the acquittals. The Crown, however, conceded that the sentencing discretion had indeed miscarried and that the sentence should be reconsidered. This concession was pivotal in the court's decision, as it acknowledged the error and facilitated the re-sentencing process.

The court agreed with the Crown's concession that the sentencing discretion had miscarried due to the consideration of the acquitted offences. It was noted that the previous offences, which were no longer part of the applicant's criminal record, should not have influenced the sentence. The court emphasised the importance of parity in sentencing and recognised that the applicant's sentence should not have been affected by offences that were later found to be unfounded. As a result, the court granted the application for leave to appeal and ordered a re-sentencing of the applicant. This decision ensured that the applicant received a fair and appropriate sentence, free from the influence of the acquitted offences.

Orders