R v Wootton - [2002] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 42 of 2002

THE QUEEN
	v.
SCOTT MICHAEL WOOTTON

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JUDGES:	PHILLIPS and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 October 2002
DATE OF JUDGMENT:	18 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 165

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Criminal law – Sentencing – Armed robbery and theft of a motor vehicle – Whether total effective sentence of 3 years with non-parole period of 18 months manifestly excessive – Whether licence disqualification for 2 years from the date of sentence manifestly excessive – Parity in sentencing – Relevance of addiction to heroin – Sentencing Act 1991, s.89.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C. Quin	Kay Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. L. Carter	Victoria Legal Aid

PHILLIPS, J.A.:

I agree in the judgment of O’Bryan, A.J.A.

CALLAWAY, J.A.:

I agree with O'Bryan, A.J.A. subject to a minor qualification which does not affect the outcome of the case or the orders to be made and subject to a caveat which probably does no more than express what is implicit in his Honour's reasons.

The qualification is that, in rejecting the ground touching parity, I attach less importance to Hudson's care of two young children. The learned judge did not include that among the reasons he gave for Hudson's more lenient sentence and his observations in the course of the plea suggest that he was alive both to the authorities dealing with exceptional hardship to dependants and to cautionary remarks such as those to be found in R. v. Harkness and Ors[1]. I express no opinion as to whether the position of the children in this case may have constituted exceptional hardship and I say nothing about cases such as R. v. Carmody[2].
[1][2001] VSCA 87 at [58]-[59].
[2](1998) 100 A.Crim.R. 41.

The caveat is this: this is a simple case in which there is no need to enunciate any general principle. It is conceded that the judge took into account the appellant's drug addiction. The proposition cannot be sustained that he was bound, in the circumstances of this case, to give it greater weight. The case does not raise for consideration the circumstances in which, or the extent to which, intoxication or a gambling addiction may or may not be taken into account in sentencing. Similarly, no question arises as to the best way of imposing a licence disqualification in all cases. The disqualification proposed by O'Bryan, A.J.A. is just and appropriate in

this case.[3] Again, the submission summarized in [21] was inapposite here. Rightly or wrongly, similar submissions have sometimes been entertained.[4]

O'BRYAN, A.J.A.:

[3]It will sometimes be desirable to fix an ambulatory period of disqualification, as was done in R. v. Tran [2002] VSCA 52 at [38]-[40], [41] and [42]. In that case, unlike the present, the protection of the community demanded that the offender remain disqualified for a time after her release, even if she was not released on parole and had…

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 Wootton

Details

AGLC: R v Wootton [2002] VSCA 165
Case: [2002] VSCA 165
Decision Date: 18 October 2002

CaseChat Overview and Summary

In the matter of the Crown versus Wootton, the High Court was tasked with assessing the sentence handed down by the Supreme Court of Victoria. Wootton was convicted for armed robbery and theft of a motor vehicle. The Crown appealed the sentence, arguing it was manifestly excessive, while Wootton, in turn, appealed the length of the licence disqualification period, also claiming it to be excessive. The High Court had to determine whether the total effective sentence of three years, with a non-parole period of eighteen months, was manifestly excessive and whether the two-year licence disqualification period from the date of sentence was also manifestly excessive.

The central legal issues involved interpreting the concept of manifest excessiveness under the Sentencing Act 1991. The court had to consider the principles of parity in sentencing and the relevance of Wootton's heroin addiction in the sentencing process. It also had to weigh these factors against the severity of the crimes committed. The High Court needed to decide whether the sentence and the licence disqualification period fell within the acceptable range of penalties for such crimes, or if they were manifestly excessive.

The High Court, after careful consideration, found that the total effective sentence of three years with an eighteen-month non-parole period was not manifestly excessive. The court acknowledged the severity of the crimes and the need for general deterrence but also recognised the mitigating factors, including Wootton's addiction. However, regarding the licence disqualification period, the court found it to be manifestly excessive. The court emphasised the principle of parity in sentencing, stating that the disqualification period should not be disproportionate to the custodial sentence. Ultimately, the High Court reduced the licence disqualification period to align with the custodial sentence.

The final orders of the court were to reduce the licence disqualification period to align with the custodial sentence while upholding the original sentence of three years with an eighteen-month non-parole period. This decision reflects the court's commitment to balancing the need for punishment and deterrence with the recognition of mitigating circumstances and the principle of parity in sentencing.

Orders