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…
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- AGLC
- Waugh v The Queen [2013] VSCA 36
- Case
- [2013] VSCA 36
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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