Spiteri v The Queen - [2018] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0198

STEPHEN SPITERI	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0080

STEPHEN SPITERI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2018
DATE OF JUDGMENT:	8 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 254
JUDGMENT APPEALED FROM:	DPP v Spiteri [2017] VCC 1019 (Judge Davis); DPP v Spiteri [2017] VCC 1914 (Judge Grant)

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CRIMINAL LAW – Aggravated burglary – Sentence of 4 years, 6 months’ imprisonment – Assault police officer in due execution of duty – Sentence of 3 years with 1 year, 6 months cumulation on sentence for aggravated burglary – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years – Facts on which applicant pleaded guilty could not constitute offence of assaulting police officer in due execution of duty under s 31(1)(b) of Crimes Act 1958 but could constitute offence of intentionally obstructing police officer under that section – Parties agree that indictment be amended under s 165 Criminal Procedure Act 2009 to substitute correct charge – Crown concession that sentencing discretion reopened in respect of substituted charge – Resentenced to 2 years’ imprisonment with cumulation of 1 year on substituted charge – Total effective sentence of 5 years, 6 months’ imprisonment.

CRIMINAL LAW – Separate aggravated burglary – Sentenced by different judge to 4 years, 6 months’ imprisonment – Possessing a firearm while a prohibited person – Sentence of 2 years, 3 months with 6 months’ cumulation on sentence for aggravated burglary – Total effective sentence of 5 years – Judge ordered 2 years and 6 months of this sentence be served cumulatively on earlier sentence by different judge – Combined total effective sentence of 8 years, 6 months, with new single non-parole period of 6 years, 6 months – Judge intended pre-sentence detention for both sets of offences be reckoned as already served in respect of combined total effective sentence but failed to make declaration to that effect – Judge did not specify commencement date for new single non-parole period – Correctional authorities treated non-parole period as commencing on date of later sentence with effect that applicant would become eligible for parole approximately 1 year before end of combined total effective sentence rather than 2 years as intended by judge – No complaint about individual sentences or order for cumulation – Parties agree applicant should be resentenced solely for purpose of correcting pre-sentence detention declaration and end date for non-parole period – Orders accordingly.

CRIMINAL LAW – Sentence – Offender serving prior sentence when new sentence imposed – Fixing of new single non-parole period – Commencement date for that non-parole period – Sentencing Act 1991 s 14 – R v Rich (No 2) (2002) 4 VR 155 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Balmer & Associates
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

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 Spiteri v The Queen

Details

AGLC: Spiteri v The Queen [2018] VSCA 254
Case: [2018] VSCA 254
Decision Date: 8 October 2018

CaseChat Overview and Summary

In the case of Spiteri v The Queen, the High Court of Australia was tasked with addressing sentencing discrepancies and errors in the imposition of sentences on the applicant. The applicant was convicted of multiple offences, including aggravated burglary, assault on a police officer, and possessing a firearm while being a prohibited person. The primary issue before the court was whether the sentences imposed were accurate and fair, taking into account the need for consistency in the application of the law and the proper calculation of non-parole periods.

The court first examined the sentence for the assault on a police officer, determining that the original charge under the Crimes Act 1958 was incorrect. The court held that the facts on which the applicant pleaded guilty did not constitute the offence of assaulting a police officer in the due execution of duty, but could constitute the offence of intentionally obstructing a police officer. Consequently, the parties agreed to amend the indictment, and the court reopened the sentencing discretion. The applicant was resentenced to 2 years’ imprisonment with a 1-year cumulation on the substituted charge, resulting in a total effective sentence of 5 years and 6 months' imprisonment.

The court also reviewed the sentences for separate aggravated burglary and firearm possession. The applicant had already been sentenced to 4 years and 6 months for the aggravated burglary, and an additional 2 years and 3 months for firearm possession, with a cumulation of 6 months on the earlier sentence. However, the judge failed to declare that the pre-sentence detention was to be reckoned as already served in respect of the combined total effective sentence, and did not specify the commencement date for the new single non-parole period. The error resulted in the applicant becoming eligible for parole approximately 1 year before the end of the combined total effective sentence, rather than 2 years as intended by the judge. The parties agreed that the applicant should be resentenced to correct these errors. The court accordingly ordered that the pre-sentence detention be declared as already served and set the correct commencement date for the non-parole period.

Orders