R v Wise - [2000] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 151 of 2000

THE QUEEN
	v.
ALISON MARIE WISE

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JUDGES:	BROOKING, ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 September 2000
DATE OF JUDGMENT:	26 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 169

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CRIMINAL LAW – Sentence – Order on breach of community based order – Procedural fairness – Re-sentencing judge in possession of reasons for sentences of judge who made original order – Counsel not aware of those reasons – Re-sentencing judge informs counsel that reasons are “only available to judges” – Whether impression given that copies of reasons will not be provided to counsel – Re-sentencing judge incorporates by reference part of earlier reasons which were not provided to parties – Basis for re-sentencing.

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APPEARANCES:	Counsel	Solicitors
For the Crown	J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	R.J. Bourke	Galbally & O’Bryan

BROOKING, J.A.:

I agree with Ormiston, J.A.

ORMISTON, J.A.:

This was an application for leave to appeal against a sentence of imprisonment imposed by a County Court judge by way of order pursuant to s.47 of the Sentencing Act 1991 upon breach of a community based order in conventional terms which had been imposed by Judge Rendit on 13 October 1997. At the conclusion of the hearing of the application, this Court determined, for reasons which were to be published, that the application be granted, the appeal allowed and the sentence quashed, and in lieu it ordered that the applicant be placed on a community-based order for a further 12 months.

Judge Rendit had made the original community based order for a period of two years upon a plea of guilty by the applicant and one co-offender to a joint count of attempted armed robbery. That order imposed conditions, among others, to perform 100 hours of community work over a 12 months' period, an obligation to submit to testing for drug use as directed by the regional manager and a condition not to commit another offence for which the applicant could be imprisoned during the time of the order. The facts revealed that, within two months of the imposition of that order, the applicant failed on 10 December 1997 to attend for drug testing as directed, that she committed the offence of driving under the influence of a drug on 27 February 1998, for which she was fined $300 on 10 February 1999, and committed the offences of both using and trafficking heroin between 7 and 19 May 1999. For those latter offences she was convicted in the Heidelberg Magistrates' Court on 22 March 2000 to be imprisoned for seven days on the driving charge and for two months on the drugs charges, each to be served concurrently and wholly suspended for a period of 12 months. On 5 June 2000 the applicant was brought before a different County Court judge (“the re-sentencing judge”) in Melbourne by reason of the fact that by then Judge…

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 Wise

Details

AGLC: R v Wise [2000] VSCA 169
Case: [2000] VSCA 169
Decision Date: 26 September 2000

CaseChat Overview and Summary

The case of R v Wise involved a dispute over the sentencing of the accused, Wise, by the Court of Appeal. Wise had been sentenced by a sentencing judge who imposed a community based order. Subsequently, a re-sentencing was ordered by another judge who had access to the reasons given by the original sentencing judge. The primary dispute was whether the re-sentencing was conducted with due regard to procedural fairness, particularly whether the re-sentencing judge had breached the principle of fairness by not providing the reasons for the original sentencing to the parties involved.

The legal issues the court had to decide included whether the re-sentencing judge was required to provide the reasons for the original sentencing to the parties, and if not providing those reasons constituted a breach of procedural fairness. Additionally, the court had to consider whether incorporating parts of the earlier reasons by reference, without providing copies to the parties, was consistent with the principles of natural justice.

The court held that the re-sentencing judge should have ensured that the parties had access to the reasons for the original sentencing, as these reasons formed a crucial part of the basis for the re-sentencing. The court found that the re-sentencing judge had not acted fairly by stating that the reasons were "only available to judges" and by not providing the parties with copies of these reasons. Furthermore, the court concluded that by incorporating part of the earlier reasons by reference without providing them to the parties, the re-sentencing judge had not adhered to the principles of natural justice. The court ordered a new sentencing hearing to be conducted with full procedural fairness, ensuring that all relevant reasons were made available to the parties.

Orders