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Warwick v The Queen

Warwick v The Queen

Case [2010] VSCA 166 23 June 2010

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 1002

DANIEL WARWICK
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 June 2010
DATE OF JUDGMENT:	23 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 166
JUDGMENT APPEALED FROM:	R v Allouche, Stephens, Warwick (Unreported, County Court of Victoria, Judge Gaynor, 4 December 2009)

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CRIMINAL LAW – Appeal – Sentence – Counts of burglary and theft – Sentenced to three years’ imprisonment with a non-parole period of 14 months – Extensive earlier detention referable to charges on which appellant was acquitted or resentenced – R v Renzella [1997] 2 VR 88 applied ‑ Appropriate ‘discount’ to be applied a matter for sentencing judge’s discretion – Whether equivalent discount must be applied to head sentence and non-parole period – Sentence open to sentencing judge – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Matthew White & Associates
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

This is an appeal against sentence, leave to appeal having been granted on 28 May 2010. The judgment of the Court is that the appeal should be dismissed.

Background

In January 2009, the appellant, together with two co-accused, committed a string of thefts and burglaries which involved breaking into shopping centres in the early hours of the morning and either stealing safes or breaking them open. The appellant, like his co-accused, pleaded guilty to multiple offences. These offences, and the sentences imposed in respect of each, are set out in the following table:

Count

Offence

Sentence

Cumulation

2

Theft

1 month

None

3

Burglary

18 months

Base

4

Theft

18 months

+ 4 months

5

Burglary

9 months

+ 2 months

6

Theft

9 months

+ 1 month

7

Burglary

18 months

+ 7 months

8

Theft

18 months

+ 1 month

9

Burglary

12 months

+ 2 months

10

Theft

12 months

+ 1 month

Total effective sentence: 3 years; Non-parole period: 14 months

One co-accused, Stephens, was given a total effective sentence of four years and six months, with a non-parole period of two years. The other, Allouche, received a total effective sentence of four years and four months, with a two-year non-parole period.

It can be seen immediately that there was a significant difference in the sentences imposed on the co-offenders. This is significant because her Honour approached the sentencing task on the basis that their culpability was equal. The appellant, however, received a head sentence which was substantially lower than either of his co-accused. Moreover, he received a non-parole period which was just above one third of the head sentence, which is an exceptionally low proportion of a head sentence to be fixed as a non-parole period.

It was conceded by counsel for the appellant, properly in our view, that the sentence of three years, with a non-parole period of 14 months, was a lenient sentence,…

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 Warwick v The Queen

Details

AGLC: Warwick v The Queen [2010] VSCA 166
Case: [2010] VSCA 166
Decision Date: 23 June 2010

CaseChat Overview and Summary

Warwick has appealed against his conviction and sentence for counts of burglary and theft, arguing that the sentence imposed by the lower court was excessive. The appeal was heard by the court, which was tasked with reviewing the appropriateness of the sentence and considering whether the lower court had correctly applied the principles set out in R v Renzella [1997] 2 VR 88. The court had to determine whether the lower court had appropriately considered the extensive prior detention of the appellant, which was related to charges on which he was either acquitted or resentenced. This required the court to weigh the circumstances of the case against the legal principles established in the cited authority.

The court examined whether a discount for prior detention should be applied to both the head sentence and the non-parole period. It found that the decision to apply a discount and the extent of that discount was a matter within the discretion of the sentencing judge, and that the court would not interfere unless there was a clear error in the exercise of that discretion. In this case, the court determined that the sentencing judge had appropriately exercised their discretion and had considered all relevant factors, including the appellant’s extensive prior detention and the need for deterrence and denunciation. The court concluded that the sentence was within the range of acceptable outcomes and dismissed the appeal.

The court emphasised that the principles established in R v Renzella applied, and that the sentencing judge had appropriately applied those principles to the facts of this case. The court found that the appellant's sentence was not excessive and that the lower court had correctly considered the appropriate discount for prior detention. The appeal was dismissed, and the original sentence of three years' imprisonment with a non-parole period of 14 months was upheld.

Orders