Seiler v The King

Case [2023] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0045
ZAINE SEILER Applicant
v
THE KING Respondent

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JUDGES: NIALL and WALKER JJA
WHERE HELD: Melbourne
DATE OF HEARING: 19 July 2023 
DATE OF JUDGMENT: 31 July 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 171
JUDGMENT APPEALED FROM: [2023] VCC 207 (Judge Gucciardo)

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CRIMINAL LAW – Leave to appeal – Sentence – Sentencing judge erred in determining pre-sentence detention – Sentencing judge failed to accord applicant procedural fairness – Sentencing judge failed to apply principle of totality – Appeal allowed – Applicant resentenced.

Sentencing Act 1991, ss 16, 17, 18, 48CA.

R v Renzella [1997] 2 VR 88 considered. R v Broad [1999] 3 VR 31, Nov v The Queen [2020] VSCA 11, Kenyeres v The King [2023] VSCA 25 applied.

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Counsel
Applicant: Ms J McColl (solicitor)
Respondent: Mr NA Hutton
Solicitors
Applicant: Victoria Legal Aid
Respondent: Solicitor for Public Prosecutions

p

NIALL JA
WALKER JA:

  1. The applicant pleaded guilty to a single offence of armed robbery in the County Court. On 16 February 2023 he was sentenced by that Court as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation
1 Armed Robbery 25 years 10 months’ imprisonment in combination with a Community Correction Order for a period of 2 years N/A
Total Effective Sentence: 10 months’ imprisonment in combination with a Community Correction Order for a period of 2 years
Non-Parole Period: N/A
Pre-sentence Detention Declared: 103 days
Section 6AAA Statement:

Total Effective Sentence: 15 months

Non Parole-Period: N/A

Other Relevant Orders:

1.         To complete 200 hours of unpaid community work and other rehabilitative conditions

  1. The applicant now seeks leave to appeal his sentence, on two grounds:

    (a)first, that the sentence imposed was manifestly excessive; and

    (b)secondly, that the sentencing judge erred in considering the impact of a sentence served by the applicant for unrelated offending, whilst on remand for the present offending, should have on the sentence imposed by the judge, by:

    (i)failing adequately to apply the principle of totality; and

    (ii)failing to accord procedural fairness to the applicant.

  2. The sentence for the unrelated offending had been imposed by the Magistrates’ Court on 10 January 2023 and was for a period of 3 months’ imprisonment.

  3. The applicant also seeks an extension of time of seven days within which to bring his appeal; that application is not opposed, and we consider it appropriate in the circumstances to grant that extension.

  4. At the hearing of the application for leave to appeal the respondent quite properly conceded that the trial judge had erred in relation to the sentence he imposed, by reason of a combination of two matters: that the judge had acted on a misapprehension as to the effect of the Magistrates’ Court sentence and by reason of the process adopted in relation to the effect of that sentence. Given that concession, which we consider to be correct, at the hearing of the appeal we made orders granting leave to appeal, allowing the appeal…

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Seiler v The King [2023] VSCA 171
Case
[2023] VSCA 171
Decision Date

CaseChat Overview and Summary

Seiler v The King involved an appeal by the applicant against his sentence, arguing that the sentencing judge had erred in determining the amount of pre-sentence detention, failed to afford him procedural fairness, and did not apply the principle of totality. The Court of Appeal had to determine whether the sentencing judge’s approach was appropriate under the Sentencing Act 1991 and whether the applicant's rights were upheld. The appeal hinged on the interpretation and application of sections 16, 17, 18, and 48CA of the Sentencing Act, and the case law cited, including R v Renzella, R v Broad, Nov v The Queen, and Kenyeres v The King.

The Court of Appeal found that the sentencing judge had erred in calculating the pre-sentence detention. The judge had not accorded the applicant procedural fairness by not being fully informed of the overlap in sentencing matters, which could have affected the calculation of pre-sentence detention. Additionally, the Court found that the sentencing judge did not properly apply the principle of totality, which requires consideration of all sentences imposed on an offender for related offences to avoid excessive punishment. The Court held that the sentencing judge's failure to consider the totality principle and to ensure procedural fairness meant that the sentence was not just. Consequently, the Court allowed the appeal and remitted the matter for resentencing.

The Court ordered that the applicant be resentenced, taking into account the procedural fairness issues and the principle of totality. The Court also directed that the sentencing judge’s reasons should reflect the correct approach to pre-sentence detention and the application of the principle of totality. The Court's decision underscored the importance of adhering to statutory requirements and ensuring that sentencing processes are fair and just.

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

At this point of the hearing it became apparent that the applicant’s instructor was present in the court room, and the following exchanges occurred:HIS HONOUR: I will have my associate contact the instructor to see whether during the course of the day - you are not - are you here? You are the instructor. MR MITRA: I am. HIS HONOUR: I beg your pardon, I did not realise. You followed the discussion. I am sorry, I do not have your name. MR MITRA: It is Mitra, Your Honour. HIS HONOUR: Yes, Mr Mitra. You have followed the discussion. MR MITRA: Yes, Your Honour. HIS HONOUR: Perhaps the best thing right now would be, and I do not know whether Mr Seiler is still in the cells, he probably is because he would not have been already been transported back to wherever he needs to go. Perhaps the officer in the dock might be able to confirm that. Sorry, do you know whether Mr Seiler has already been taken back or is he still - - - SECURITY OFFICER: No, he is not in the cell. He is waiting for the paperwork. So if the paperwork has not been delivered to him in custody he is still here. HIS HONOUR: Good, all right. All right, thank you. I think it is important that he should be told that as a result of this overlap - first of all, do you agree with my conclusion about this? MR MITRA: Yes, Your Honour. HIS HONOUR: Yes. I do not intend to vary my sentence because he has done 90 days of the charges that Mr Saines dealt with in the Magistrates’ Court. It just means that he has 90 days, that is three months less on the pre-sentence detention that I have declared, back to 103 days, and that is something that he needs to know. MR MITRA: Yes, Your Honour. MS CARUSO: Yes, and just for clarity, Your Honour, I think the operation of the Act will mean that your sentence is concurrent with the sentence he is currently serving, so that will - no, he used 90 days. Sorry, it will be done. HIS HONOUR: I think that the day starts today. MS CARUSO: Yes. HIS HONOUR: He has done 90 days. MS CARUSO: It does. Sorry, I - - - HIS HONOUR: And he has continued to serve some time so the continuation of that time from August last year until now picks up at the end of the 90 days and runs into this sentence, which is probably about four months or so, or a bit less, yes. Sometimes these things happen in this way but I do not think even taking into account totality - yes, I do not think that that would impact on the sentence and it does not at all because it seems to me that the measure of the sentence in the Magistrates’ Court is of a weight which indicates the kind of offending which it was and which does not impact on my sentence, which I think is appropriate. Did you represent him at the Magistrates’ Court? MR MITRA: I was instructing on that matter, Your Honour, so I was present. Mr Hunter of counsel appeared on that day. HIS HONOUR: I am not being critical. These overlaps happen quite often. It would have been preferable if I had been told about it before today in terms of the - do you remember, in essence, in the summary form, what the intentionally cause injury and affray was like? Was it a fight or something or - - - MR MITRA: It occurred, Your Honour, at a bust stop in Ballarat where Mr Seiler attended and in response to something that he perceived the victim had said, he punched him several times. HIS HONOUR: Was he on his own or was he with others? MR MITRA: He was on his own, Your Honour. HIS HONOUR: Right. Why was he charged with affray? MR MITRA: There were a number of people I think - apologies, Your Honour, I believe that somebody had attended with him but was some way distant from the actual offence and Mr Seiler left the scene alone. HIS HONOUR: In any event, do you recall the nature of the injuries? Was it - - - MR MITRA: There was nothing substantial, Your Honour. There was a cut lip and there was no requirement for any medical attention. HIS HONOUR: Yes. MR MITRA: With respect, Your Honour, I must apologise that this was not shared with Your Honour. As I understand it from counsel who appeared before Your Honour at the plea, Your Honour wished to adjourn sentence until the matter had been finalised. At somewhere along the line, it has not been shared with Your Honour what the disposition was. HIS HONOUR: I was told, I recall, that in November - sorry, that in December there was going to be something like the first or something like that, there was going to be a mention and that the resolution was still being discussed. So I expected some resolution perhaps to have been achieved but - and I repeat, I am not being critical. I know that these overlaps happen from time to time but it would have been helpful to me to know what the outcome of 10 January disposition had been and I would have been able then to consider it, but having looked at the order and having now been told what the matter was about, it seems to me that even then applying the matters of totality to the sentence, given the time assigned by the magistrate to that particular series of offences, that that would not have made a difference to my sentence. It is just important that Mr Seiler is told that the time that he has spent from August 90 days forward really dealt with that matter and that the sentence which he is now undertaking begins thereafter, leaving him 103 days by way of pre-sentence detention. I will instruct the transcribers to transcribe this particular discussion that I have had with the learned prosecutor and with yourself, Mr Mitra, so that the sentence reflects these comments that have been made and are part of the sentencing disposition. I think it is important to record how the pre-sentence detention has been arrived at. MR MITRA: Thank you, Your Honour. HIS HONOUR: Thank you for your attendance.[13] [13]Reasons, [69]–[101] (emphasis added).

Ratio Decidendi

Legal Principle Established

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