Rodden v The Queen

[2011] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0918

JASON MARK RODDEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 January 2011
DATE OF JUDGMENT	18 January 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 9
JUDGMENT APPEALED FROM	R v Rodden & Lekic [2008] VCC 1460 (Judge Howie)

CRIMINAL LAW – Sentence – Two presentments – Parole sentence part served – Whether total effective sentence offended principle of totality – Whether orders for cumulation in relation to sentences for possession and trafficking of drug of dependence excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	McNamaras
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. The appellant was convicted after a jury trial on one count of aggravated burglary, one count of common assault and one count of intentionally causing serious injury, all of which arose out of events on the morning of 12 March 2007.  The facts are not in dispute and may be shortly stated.  The appellant and his co-offender (who was armed with a meat cleaver) entered the apartment of Kylie Christopher, with the intention of assaulting Stephan Wilson.  The appellant grabbed Ms Christopher by the neck and pushed her into a cupboard, and then proceeded with his co-offender to the bedroom where the appellant punched Mr Wilson a number of time in the face and kneed him.  The co-offender struck him twice on the back of the head with the meat cleaver.  Mr Wilson suffered lacerations to the neck, two lacerations of the scalp in the occipital region which were treated with staples, a fracture of the right eye socket and a right periorbital haematoma.  He was hospitalised for two and a half days.

1. The appellant also pleaded guilty to three counts on a second presentment being one count of trafficking in a drug of dependence and two counts of possession of a drug of dependence. 

1. The individual sentences for imprisonment and orders for cumulation were as follows:

First Presentment	Offence	Sentence Imposed	Cumulation (% of sentence)
Count 1	Aggravated burglary	4 years	Base
Count 2	Common assault	6 months	3 months (50%)
Count 3	Intentionally causing serious injury	4 years	2 years (50%)
Second Presentment
Count 1	Trafficking	18 months	9 months (50%)
Count 2	Possession of heroin (personal use)	3 months

Count 3 Possession of amphetamine and methylamphetamine 9 months 6 months (67%)

1. The learned sentencing judge sentenced the appellant to a total effective period of seven years and six months' imprisonment and fixed a non-parole period of four years and eight months.

1. Mr Carr, who appeared for the appellant, rightly, in my view, abandoned ground one which alleged that there was a factual error infecting the setting of the non-parole period.  He also rightly abandoned the second ground which was that there was an error in assessing the gravity of the count of aggravated burglary.  His commendably brief submission focussed upon the argument that the total effective sentence offended the principle of totality.  He submitted that the error could, in large part, be identified by an examination of the orders for cumulation that were made in relation to the counts on the second presentment concerning the count of trafficking and two counts of possession of drugs of dependence.

1. Mr Carr sought to demonstrate that the order for cumulation on Count 1 of the second presentment was six months too high, and that the order for six months of cumulation on Count 3 on that presentment was three months higher than was appropriate.

1. Whilst there will be occasions where an examination of orders for cumulation may disclose error in the application of the principle of totality, I do not think in this case that his Honour's careful reasons disclose any error in the orders for cumulation made or in the ultimate sentences that were imposed.

1. As in the case of an argument as to manifest excess, an argument that the principle of totality has been infringed does not admit of substantial elaboration.  In my view, having regard to the parole sentence which the appellant had in part served and the balance of which remained to be served, the sentence of seven years and six months’ imprisonment by way of total effective sentence did not offend the principle of totality nor did the non-parole period that was fixed.

1. As we indicated to Mr Carr at the outset of the appeal, the sentences that were imposed in relation to the counts on the first presentment, particularly having regard to the fact that they were imposed following a trial, were very lenient. 

1. In those circumstances I would dismiss the appeal.

BONGIORNO JA:

1. I agree with Redlich JA.

REDLICH JA:

1. The order of the Court will be that the appeal is dismissed.

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