SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0183
| STACEY PATRICK ROUGE |
| Appellant |
| V |
| THE QUEEN |
| Respondent |
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| JUDGES | REDLICH, WEINBERG AND COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 March 2013 |
| DATE OF JUDGMENT | 25 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 160 |
| JUDGMENT APPEALED FROM | DPP v Rouge (Unreported, County Court of Victoria, Judge Gamble, 24-25 July 2012) |
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CRIMINAL LAW — Appeal against sentence — Appellant robbed prostitute whose services he had engaged of $470 — Sentenced in July 2012 to three years’ imprisonment with non-parole period of 17 months in respect of robbery — Sentence ordered to be served cumulatively upon sentence of 13 months’ imprisonment with non-parole period of seven months imposed in April 2012 in respect of charges of recklessly causing serious injury and careless driving — Sentencing judge stated that his intention was that appellant serve total of four years and one month’s imprisonment with non-parole period of 25 months (commencing upon appellant’s initial remand in November 2011) in respect of all matters dealt with in April and July 2012 — Whether sentencing judge erred in ordering cumulation — Whether sentencing judge, by making orders for cumulation, impermissibly revisited July 2012 sentence — Consideration of valid approaches to application of totality — Appeal dismissed — Azzopardi & Ors v The Queen [2011] VSCA 372 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For The Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For The Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor For Public Prosecutions |
REDLICH JA
WEINBERG JA
COGHLAN JA
Introduction
After pleading guilty to one charge of robbery[1] the appellant was sentenced, in the County Court at Melbourne, to three years’ imprisonment with a non-parole period of 17 months. The judge ordered that this sentence be cumulative upon a sentence that the appellant was already serving.[2]
[1]Contrary to Crimes Act 1958 s 75.
[2]It was declared, pursuant to s 6AAA of the Sentencing Act 1991, that, but for his plea of guilty, the appellant would have been sentenced to four years’ imprisonment with a non-parole period of two years, cumulative upon the sentence currently being served.
By leave granted on 23 November 2012 by Tate JA, the appellant challenges his sentence on a single ground:
Ground 1 - The learned sentencing judge made an order for cumulation resulting in the total effective head sentence and non-parole period offending the totality principle.
Background
The appellant’s offending behaviour occurred in St Kilda in the early hours of 8 October 2010. The appellant had sought to procure the services of the complainant, who was working as a prostitute. At approximately 12:15am, the appellant and the complainant made a verbal agreement that she would perform sexual services for an hour for which the appellant would pay $200. He had previously been a client of the complainant’s and they were familiar to the point that each had the other’s mobile number.[3]
[3]DPP v Rouge (Unreported, County Court of Victoria, Judge Gamble, 24-25 July 2012)…
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- AGLC
- Rouge v The Queen [2013] VSCA 160
- Case
- [2013] VSCA 160
- Decision Date
CaseChat Overview and Summary
The legal issues in the appeal were whether the trial judge erred in ordering the sentences to be served cumulatively and whether the judge, by making orders for cumulation, had impermissibly revisited the July 2012 sentence. The court considered the principles of totality and the valid approaches to applying them. The court found that the judge had not erred in ordering the sentences to be served cumulatively and that he had not impermissibly revisited the July 2012 sentence. The court held that the judge had considered the totality of Rouge's offending and had made a global assessment of the appropriate sentence for all of the offences. The judge had not revisited the July 2012 sentence, but had instead made a fresh assessment of the appropriate sentence for all of the offences.
The court held that the judge had applied the correct principles of totality and had not erred in ordering the sentences to be served cumulatively. The judge had considered the totality of Rouge's offending and had made a global assessment of the appropriate sentence for all of the offences. The judge had not revisited the July 2012 sentence, but had instead made a fresh assessment of the appropriate sentence for all of the offences. The court applied the principles set out in Azzopardi & Ors v The Queen [2011] VSCA 372 and held that the judge had not erred in his approach to the application of totality.
The appeal was dismissed, and the orders of the trial judge were upheld. The sentences were to be served cumulatively, with a total of four years and one month imprisonment, with a non-parole period of 25 months.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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