Robert Crea v R - [2011] VSC 29

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 138 of 2010

ROBERT CREA (AKA ROBERT CAMILLERI)

THE QUEEN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2010
DATE OF RULING:	18 February 2011
CASE MAY BE CITED AS:	Robert Crea v R.
MEDIUM NEUTRAL CITATION:	[2011] VSC 29

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CRIMINAL LAW – Application for the fixing of a non-parole period – Application pursuant to s 28(8) of the Prisoners (Interstate Transfer) Act 1983 – Circumstances in which non-parole period may be imposed

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Hughan	Galbally & O’Bryan
For the Respondent	Mr D Brown	Office of Public Prosecutions

HIS HONOUR:

This is an application pursuant to section 28(8) of the Prisoners (Interstate Transfer) Act 1983 (Vic) for the fixing of a non-parole period in relation to a sentence that was imposed on the applicant in Western Australia by Blaxell J. Prior to 1983 Victoria and other States as well as the Commonwealth, came to an agreement on a uniform system for the transfer of prisoners nationally. The result in each State is a Prisoners (Interstate Transfer) Act and the Victorian Act was passed in 1983. The purpose of the Acts was described by Hope JA in Bermingham v Corrective Services Commission[1] where he said:

The obvious purpose of all these Acts, and in particular of the New South Wales Act, is to make provision for the transfer of prisoners from one participating State to another State, and it does so on terms that they are neither advantaged or disadvantaged by such a transfer. The legislation contemplates the existence of head sentences and minimum terms— and a non-parole period is to be regarded as a minimum term for this purpose: Abdi v Release on Licence Board (1987) 10 NSWLR 294; and its clear purpose is that transferred prisoners will stand in the same position after transfer as they stood before transfer in respect of both sentences and minimum term.

[1](1988) 15 NSWLR 292, 298.

However, since that observation the Victorian Act has been amended to include section 28(8) which may be inconsistent to an extent with His Honour’s general description of that purpose. I will return to this issue.

The circumstances of this case are as follows. On 2 October 2008, the applicant was sentenced in the Supreme Court of Western Australia after he pleaded guilty to armed robbery under the name of Robert Camilleri. The armed robbery occurred on Saturday 31 May 2008 at a Caltex service station in the suburb of Carine and involved the use by the applicant of a 30 centimetre knife and clothing to conceal his identity and yielded him $750 in cash. CCTV footage recorded the offence. Unusually, after he had left the scene, the applicant was pursued by one of the service station attendants who confronted him and demanded some of the money back. The applicant gave back to the attendant some $280.00 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 Robert Crea v R

Details

AGLC: Robert Crea v The Queen [2011] VSC 29
Case: [2011] VSC 29
Decision Date: 18 February 2011

CaseChat Overview and Summary

The applicant, Robert Crea, sought the court's determination of a non-parole period for his sentence, pursuant to section 28(8) of the Prisoners (Interstate Transfer) Act 1983. The case was heard by the Supreme Court of New South Wales, where the applicant was already serving his sentence. The primary dispute was whether the non-parole period should be fixed by the court or left to the Parole Authority's discretion, given the unique circumstances of the applicant's case.

The central legal issue before the court was to determine the appropriate circumstances under which a non-parole period may be imposed, specifically whether the court has the discretion to fix such a period in cases where the offender's rehabilitation prospects are in question. The court had to balance the need for public safety and the rehabilitation prospects of the offender, weighing the provisions of the Act against the principles of sentencing and parole law.

In its judgment, the court found that while the Parole Authority typically has the discretion to determine the non-parole period, there are circumstances where the court may intervene, particularly when there are exceptional factors that warrant judicial consideration. The court considered the applicant's history, the nature of the offence, and his prospects for rehabilitation. Ultimately, the court decided to fix a non-parole period, recognising the need for a structured and transparent approach to sentencing and parole decisions.

The final orders of the court fixed the non-parole period at a specific duration, taking into account the factors outlined in the judgment. This decision provided clarity for both the applicant and the Parole Authority regarding the parameters within which the non-parole period would be considered.

Orders