Underwood v The Queen - [2011] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0192

BRIAN LESLIE UNDERWOOD
	Appellant
V
THE QUEEN
	Respondent

---

JUDGES	BONGIORNO JA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 August 2011
DATE OF JUDGMENT	17 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 270
JUDGMENT APPEALED FROM	DPP v Underwood (Unreported, County Court of Victoria, Judge Parsons, 26 May 2010)

---

CRIMINAL LAW – Appeal against sentence – Unusually high non-parole period – In the circumstances non-parole period appropriate – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Tait Lawyers
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I will ask Whelan AJA to read the first judgment.

WHELAN AJA:

On 26 May 2010 the appellant was sentenced in the County Court to a total effective sentence of five years’ imprisonment with a non‑parole period of four years. On 29 October 2010 he was given leave to appeal that sentence pursuant to s 315 of the Criminal Procedure Act 2009.

The grounds of appeal set out in the full statement of grounds are that the total effective sentence, the individual sentences and the non‑parole period are manifestly excessive; that the sentencing judge erred in fixing the non‑parole period; that the sentencing judge failed to properly have regard to totality; and that the sentencing judge failed to have proper regard to the appellant’s mental condition.

As matters transpired, the only ground argued was ground 2, that the sentencing judge erred in fixing the non‑parole period.

The argument put was that the head sentence was appropriate but that a non‑parole period of four years, representing 80 per cent of the head sentence, was unusually high. Further, far from there being an explanation given by the trial judge for the unusually high non‑parole period, the sentencing judge had in fact indicated in the course of the plea the following:

A long parole period does seem appropriate given his successful last parole period.

Reliance was also placed on the sentencing judge’s statement in the course of his reasons for sentence that in fixing an appropriate sentence he had sought to maximise the offender’s chances of rehabilitation.

The appellant pleaded guilty to ten counts. The most serious count was a count of inciting armed robbery. In substance, the appellant, with others, one of whom was a covert police operative, discussed and planned an armed robbery of a

bank in Geelong. In furtherance of that proposed armed robbery, the appellant burgled a car dealership twice on the one night stealing two vehicles as well as tools, a mobile phone and other equipment.

Unrelated to those offences, the appellant also pleaded guilty to a charge of stealing a motor vehicle from the car park of the Geelong Hospital and of theft of a registration plate.

Given the way the appeal was conducted, it is unnecessary to set out the various individual sentences imposed and the directions as to cumulation which were…

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 Underwood v The Queen

Details

AGLC: Underwood v The Queen [2011] VSCA 270
Case: [2011] VSCA 270
Decision Date: 17 August 2011

CaseChat Overview and Summary

Underwood was convicted of a serious criminal offence and was subsequently sentenced to a term of imprisonment with a non-parole period that was deemed unusually high by the defence. The appellant brought the matter to the court of appeal, arguing that the non-parole period was excessive and should be reduced. The primary focus of the appeal was the appropriateness of the non-parole period imposed by the sentencing judge.

The court examined whether the non-parole period was excessive and whether the sentencing judge had erred in the application of the relevant principles. In particular, the court considered the gravity of the offence, the appellant's criminal history, and the need to deter and protect the community. The court also considered the principle of parity, which required the sentence to be proportionate to sentences imposed for similar offences.

The court found that the non-parole period was appropriate in the circumstances of the case. The gravity of the offence and the appellant's criminal history warranted a significant custodial sentence. The court was satisfied that the sentencing judge had properly considered the relevant factors and had not erred in imposing the non-parole period. The appeal was dismissed, and the original sentence was upheld.

Orders