Samuel Bass (a pseudonym) v The Queen (No. 2) - [2015] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0132

SAMUEL BASS (a pseudonym)	Applicant
V
THE QUEEN (No. 2)	Respondent

---

JUDGES:	MAXWELL P, BEACH AND KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 252
JUDGMENT APPEALED FROM:	DPP v [Bass] [2014] (Unreported, County Court of Victoria, Judge Smallwood, 18 July 2014)

---

CRIMINAL LAW – Sentence – Appeal – Drug offences – Applicant already serving sentence for other offences (‘the first offence’) – Applicant sentenced on basis of further term of 2 years 6 months’ imprisonment cumulated on first sentence – Less single non-parole period set pursuant to s 14(1) of Sentencing Act 1991 (‘the second sentence’) – Appeal against first sentence allowed and first sentence reduced – Applications for leave to appeal out of time against second sentence – Leave granted – Single non-parole period reduced.

---

APPEARANCES:	Counsel	Solicitors
No oral hearing. By consent the matter was decided having regard to the written materials filed by the parties.

MAXWELL P
BEACH JA
KAYE JA:

The applicant applies for leave to appeal out of time in respect of a sentence imposed upon him by his Honour Judge Smallwood of the County Court on 18 July 2014. As we will explain, the application arises out of a decision of this Court, involving the applicant, in another case, since the date of that sentence. The prosecution accepts that leave to appeal should be granted, and that the appeal should be allowed. It is also common ground that an adjustment ought to be made to the non-parole period fixed by Judge Smallwood. Accordingly, we have dealt with the matter ‘on the papers’, with the assistance of written submissions by each side.

The circumstances

On 9 June 2013, after a trial in the County Court, the applicant was sentenced by his Honour Judge Maidment for offences of trafficking in a commercial quantity of a drug of dependence (methylamphetamine) and possession of a drug of dependence (methylamphetamine) to a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years and 8 months’ imprisonment. Three hundred days pre-sentence detention were reckoned as served. (We shall refer to that sentence as ‘the Judge Maidment sentence’). At that stage, the applicant’s earliest eligible date for release (‘EED’) was approximately 9 May 2019.

On 18 July 2014, at the County Court, the applicant was arraigned and pleaded guilty on the one indictment to two charges of possession of a drug of dependence, one charge of being a prohibited person in possession of a firearm, and two charges of trafficking in a drug of dependence (‘the State indictment’). The applicant was also arraigned, before the same judge, and pleaded guilty to one charge of conspiring to make counterfeit money on a separate indictment (‘the Commonwealth indictment’). In addition, the applicant admitted to having breached a suspended sentence of imprisonment imposed on him on 19 September 2011, for one…

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.

Keep reading for free

Create a free CaseChat account to read Samuel Bass (a pseudonym) v The Queen (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSCA 252
Decision Date: 15 September 2015

CaseChat Overview and Summary

The case involved Samuel Bass, who was appealing a sentence handed down by the Supreme Court of Victoria. The appeal was against a sentence of 2 years and 6 months imprisonment, imposed after Bass had already been serving time for another offence. This second sentence was meant to be cumulated with his existing sentence, but with a single non-parole period set according to a specific section of the Sentencing Act 1991. Bass had previously appealed against his first sentence and succeeded in having it reduced. He then applied for leave to appeal out of time against the second sentence, which was granted, leading to a reduction in the single non-parole period.

The primary legal issues the court had to address were the appropriateness of the second sentence, its cumulation with the first sentence, and the setting of a single non-parole period. The court also needed to consider whether the applicant's right to appeal out of time was justified under the circumstances. The court had to balance the need to ensure that the sentence was just and appropriate with the procedural rules governing appeals.

In its decision, the court found that the second sentence was indeed excessive given the reduced first sentence. The court acknowledged that the sentences were supposed to be cumulated but noted that the non-parole period should reflect the reduced first sentence. The court granted leave to appeal out of time, recognising the significant change in the first sentence and its impact on the second. Consequently, the single non-parole period was reduced to better align with the new sentencing circumstances.

The final orders of the court involved a reduction in the single non-parole period for the second sentence, reflecting the changes made to the first sentence. The court ensured that the total sentence remained proportionate to the offences committed, while also adhering to the legal principles governing sentencing and appeals.

Orders