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Waugh v The Queen

Waugh v The Queen

Case [2013] VSCA 36 1 March 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0051

JASON WAUGH	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 September 2012
DATE OF JUDGMENT	1 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 36
JUDGMENT APPEALED FROM	DPP v Waugh (Unreported, County Court of Victoria, Geelong, 18 November 2011, Judge Sexton)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Handling stolen goods – Possession of drug of dependence – Offending breached parole – Parole cancelled – Appellant required to serve remaining portion of head sentence for previous offence – Totality required consideration of parole sentence – Parity – Sentencing judge used s 6AAA declaration in respect of co-offender as guide in sentencing appellant – Azzopardi v The Queen [2011] VSCA 372; DPP v Johnson [2011] VSCA 288; DPP v Dickson [2011] VSCA 222 applied – Total effective sentence breached principle of totality – Appellant re-sentenced – Sentencing Act 1991 (Vic) ss 6AAA, 16(3B).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Dann	C Marshall & Assocs
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

REDLICH JA:

After a trial in the County Court at Geelong, the appellant was convicted by a jury of one count of armed robbery, contrary to s 75A of the Crimes Act 1958 (Vic). The appellant also pleaded guilty to unlawfully possessing an unregistered firearm,[1] handling, receiving and disposing of stolen goods,[2] and possession of a drug of dependence,[3] namely 0.6 grams of amphetamine. He was sentenced as follows:
[1]Contrary to s 5(1A) of the Firearms Act 1996.
[2]Contrary to s 88(1) of the Crimes Act 1958 (Vic).
[3]Contrary to s 73(1) of the Drugs Poisons and Controlled Substances Act 1981.

Indictment C1107826.1 - First Indictment

Charge on Indictment Offence Maximum Sentence Cumulation

1. Armed robbery [Crimes Act 1958 (Vic) s 75A] 25 y 8 y 3 m Base

Indictment C1107826.3 – Second Indictment

Charge on Indictment Offence Maximum Sentence Cumulation

1. Prohibited person possess unregistered firearm [Firearms Act 1996 (Vic) s 5(1A)][4] 15 y 16 m 8 m

2. Handling, receiving, dispose of stolen goods [Crimes Act 1958 (Vic) s 88(1)] 15 y 16 m 3 m

3. Possession of a drug of dependence (amphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b)] [5] Penalty of not more than 30 penalty units or 1 y or both 5 m 1 m

Total Effective Sentence: 9 y 3 m

Non-Parole Period: 7 y

Pre-sentence Detention Declared: 15 days

6AAA Statement: 4 y with a minimum term of 2 y on the charges contained in Indictment C1107826.3 alone.

Other relevant orders: Compensation Order; Forfeiture Order and Disposal Order.
[4]Section 5(1A) of the Firearms Act1996 was repealed on 20 March 2012. The new maximum penalty is 10 years’ imprisonment.
[5]The court was satisfied on the balance of probabilities that the offence was…

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 Waugh v The Queen

Details

AGLC: Waugh v The Queen [2013] VSCA 36
Case: [2013] VSCA 36
Decision Date: 1 March 2013

CaseChat Overview and Summary

Waugh appealed against his sentence for multiple criminal offences, which included armed robbery, handling stolen goods, possession of a drug of dependence, and breaching parole. The case was heard in the Victorian Court of Appeal. The central legal issue before the court was whether the sentence imposed on the appellant breached the principle of totality, which mandates that the combined effect of a head sentence and a parole cancellation period must not be excessive.

The court examined whether the sentencing judge appropriately considered the totality principle when imposing the sentence. The court noted that the sentencing judge had used a declaration made in respect of a co-offender as a guide in sentencing the appellant. The court referred to previous cases such as Azzopardi v The Queen, DPP v Johnson, and DPP v Dickson to assess the appropriate application of the totality principle. It concluded that the total effective sentence did indeed breach this principle. The court subsequently re-sentenced the appellant, taking into account the need for parity and the requirements of the Sentencing Act 1991 (Vic).

In light of its findings, the Court of Appeal varied the sentence imposed by the trial judge. The appellant was re-sentenced in a manner that complied with the totality principle. The final orders ensured that the combined effect of the head sentence and the parole cancellation period was within acceptable limits.

Orders