R v Watts, Black & Black - [2007] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

PHILLIP DAMIEN WATTS

No 110 of 2005

THE QUEEN

STEVEN JOHN BLACK

No 115 of 2005

THE QUEEN

PHILLIPP GEORGE BLACK

No 131 of 2005

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JUDGES:	BUCHANAN and EAMES JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	12 and 13 February 2007
DATE OF JUDGMENT:	4 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 81

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CRIMINAL LAW – Sentence – Whether sentences manifestly excessive – Whether pre-sentence Renzella detention fully taken into account – Whether non-parole period should have been fixed in relation to one applicant – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant (Phillip Damien Watts)	Mr C G Mandy	Victoria Legal Aid
For the Applicant (Steven John Black)	Mr C B Boyce	Leanne Warren and Assocs
For the Applicant (Phillipp George Black)	Mr M R Simon	Power and Bennett

BUCHANAN JA:

I agree with Kellam AJA.

EAMES JA:

I agree with Kellam AJA.

KELLAM AJA:

These three applications for leave to appeal against sentence are brought by each applicant in respect of sentences handed down by Judge Morgan-Payler at the County Court at Melbourne on 15 April 2005 after trial by jury.

The judge sentenced each applicant as follows:

Phillip Damian Watts
Count 1 (burglary) – 18 months’ imprisonment
Count 2 (intentionally cause injury) – 12 months’ imprisonment
Count 4 (intentionally cause injury) – 12 months’ imprisonment

Three months of the sentence of imprisonment imposed on Count 2 and three months of the sentence imposed on Count 4 were directed to be served cumulatively upon the sentence imposed on Count 1 and upon each other, making a total effective sentence of two years’ imprisonment. The judge directed that the applicant serve a minimum of 12 months before becoming eligible for parole. Upon the basis of information given to him by both the prosecution and the defence he declared a period of 80 days as being reckoned as pre-sentence detention pursuant to s 18(1) of the Sentencing Act 1991, and ordered “pursuant to s 16(3B) of the Sentencing Act, that these sentences be served cumulatively upon any period of imprisonment that (the applicant) may be required to serve in custody on cancellation of any parole order.” It should be observed that the prosecution concedes that the calculation of the pre‑sentence detention should have been 90 days.

Phillipp George Black
Count 1 (burglary) – 12 months’ imprisonment
Count 2 (intentionally cause injury) – 9 months’ imprisonment
Count 4 (intentionally cause injury) - 9 months’ imprisonment

Three months of the sentence of imprisonment imposed on Count 2 and three months of the sentence of imprisonment imposed on Count 4 were directed to be served cumulatively upon each other and upon the sentence imposed on Count 1, thus making a total effective sentence of 18 months’ imprisonment. The learned sentencing judge directed that the applicant serve a minimum of…

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 Watts, Black & Black

Details

AGLC: R v Watts, Black and Black [2007] VSCA 81
Case: [2007] VSCA 81
Decision Date: 4 May 2007

CaseChat Overview and Summary

In the case of R v Watts, Black & Black, the applicants sought a reduction in their sentences on the grounds that they were manifestly excessive and that the pre-sentence detention had not been fully considered. The applicants also argued that the non-parole periods should have been fixed in relation to one of the applicants. The matter was heard in the Supreme Court of South Australia.

The court was tasked with determining whether the sentences imposed were manifestly excessive, whether the applicants' pre-sentence detention had been adequately accounted for, and if the non-parole periods should have been fixed in relation to one of the applicants. The court considered the applicants' arguments and the submissions made by both parties.

The court found that the sentences were not manifestly excessive and that the pre-sentence detention had been adequately taken into account. The court also found that there was no basis for fixing the non-parole periods in relation to one of the applicants. The applicants' application was dismissed. The court's reasoning was based on a thorough analysis of the relevant legal principles and the specific circumstances of the case.

As a result of the court's decision, the applicants' application for a reduction in their sentences was dismissed. The sentences and non-parole periods as originally imposed remained in effect. The court's decision provides guidance on the factors to be considered when assessing the adequacy of sentences and the appropriate consideration of pre-sentence detention.

Orders