Rouge v The Queen - [2013] VSCA 160

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)…

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 Rouge v The Queen

Details

AGLC: Rouge v The Queen [2013] VSCA 160
Case: [2013] VSCA 160
Decision Date: 25 June 2013

CaseChat Overview and Summary

Rouge appealed against his sentence for robbing a prostitute of $470, and the cumulative sentencing order imposed by the trial judge. He was initially sentenced in April 2012 to 13 months imprisonment for recklessly causing serious injury and careless driving, with a non-parole period of seven months. In July 2012, he was sentenced to three years imprisonment for robbery, with a non-parole period of 17 months. The judge ordered that the sentences be served cumulatively, with the intention that Rouge serve a total of four years and one month imprisonment, with a non-parole period of 25 months. Rouge argued that the judge erred in ordering the sentences to be served cumulatively and that by doing so, he had impermissibly revisited the July 2012 sentence. The appeal was dismissed.

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