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

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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)

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

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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:

1. I will ask Whelan AJA to read the first judgment.

WHELAN AJA:

1. 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.

1. 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.

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

1. 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.

1. 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. 

1. 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. 

1. 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. 

1. 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 given.

1. The appellant was 38 years old at the time of the offences and was 39 years old at the time of sentence.  He has an extensive criminal history.  He had 105 convictions from 28 court appearances prior to these offences.  He has many convictions for theft, stealing motor vehicles, assault and driving offences.  He has a prior conviction in the District Court of New South Wales for robbery whilst armed.  He has been sentenced to terms of imprisonment many times.  Most recently he was sentenced in the County Court at Bendigo on 25 February 2008 to a term of 18 months’ imprisonment with a non‑parole period of seven months for handling stolen goods.  On 16 September 2008 an appeal in relation to that sentence was allowed and he was re‑sentenced to a term of imprisonment of 13 months with a non‑parole period of seven months. Those somewhat unusual sentences were the result of particular circumstances which applied to the appellant in relation to his remand and the need to ensure parity with a co‑offender. 

1. On this hearing we were told that the appellant was paroled in September 2008.  He completed that parole in March 2009.  These offences were committed in June and July 2009. 

1. In the circumstances, the total effective sentence was, in my view, a merciful one.  In particular, his Honour’s conclusion that all of the relevant factors which are the subject of the decision in R v Verdins[1] applied in this case took a very generous view of the position so far as the appellant is concerned.

   [1][2007] VSCA 102.

1. A non‑parole period which represents 80 per cent of a sentence of this length and which is unexplained by the sentencing judge invites appellant scrutiny.[2]  That is particularly so in this case where the sentencing judge suggested in the course of the plea hearing that a long period on parole would seem appropriate.

   [2]R v Merritt [2008] VSCA 238, [16]–[23]; R v Detenamo [2007] VSCA 160, [24]-[26].

1. Having scrutinised the matter, however, my conclusion is that the non‑parole period in this case was appropriate. 

1. I have reviewed the offender’s criminal history in detail.  Even a year on parole will be a challenge for him.  Such prospects as there are for his rehabilitation and for assisting him to integrate into society can be addressed in that time. 

1. The non‑parole period needs to represent the minimum time that justice requires to be served having regard to all the circumstances of the offences.[3]  It is necessary to balance the various interests of the community so as to determine in the particular circumstances the degree of mitigation that mercy may claim without injustice.[4]

   [3]Power v The Queen (1974) 131 CLR 623, 628.

   [4]R v Krasnov; R v Shlakht (1995) 82 A Crim R 92, 99.

1. In my view a minimum term of less than four years cannot be provided for without injustice in this case, given the circumstances of the offending and given my conclusion that a potential parole period of one year is appropriate having regard to the appellant’s criminal history and his prospects of rehabilitation.

1. Accordingly, in my view, the appeal should be dismissed.

BONGIORNO JA:

1. I agree.

1. The order of the Court is that the appeal is dismissed.

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