Yost v The Queen - [2012] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0001

DION YOST	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NEAVE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 August 2012
DATE OF ORDERS	2 August 2012
DATE OF JUDGMENT	10 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 181
JUDGMENT APPEALED FROM	R v Yost (Unreported, County Court of Victoria, Judge Chettle, 28 October 2011)

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CRIMINAL LAW − Appeal − Sentence – Non-parole period – Appellant serving sentence of life imprisonment − Released on parole − Subsequent offence − Carrying firearm as prohibited person − Breach of parole − Parole cancelled − Sentence of three years’ imprisonment − No non-parole period fixed − Whether trial judge erred in declining to fix non-parole period – Crown concession − Appeal allowed − Appellant resentenced to three years’ imprisonment, with a non-parole period of two years − R v Chamberlain [2001] VSCA 159 applied – Sentencing Act1991, ss 11, 13, 15, 16.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Haines & Polites
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NEAVE JA
OSBORN JA:

Summary

Section 11(1) of the Sentencing Act 1991 (the ‘Act’) requires that a non-parole period be fixed whenever a sentence of two years’ imprisonment or more is imposed, except where the sentencing judge considers that either:

(a) the nature of the offence; or

(b) the past history of the offender,

makes the fixing of such a period ‘inappropriate’. The language of s 11(1) is exhaustive. Unless one or other of the specified matters makes it ‘inappropriate’ to fix a non-parole period, the judge is bound to fix one.

In the present case, the judge concluded that it was inappropriate to fix a non-parole period. As will appear, however, that decision was based on the fact that the appellant (‘DY’) was serving a life sentence, having had his parole cancelled. As the Crown properly conceded on the appeal, that was an irrelevant consideration. DY’s imprisonment status was not a matter which the judge was authorised to consider under s 11(1).

There had been debate on the plea about ss 15 and 16 of the Act, which respectively deal with the order of service of sentences and the question whether sentences are to be served concurrently or cumulatively. Those issues are likewise irrelevant to the limited discretion conferred by s 11(1) to decline to fix a non-parole period.

Understandably, no application was made for the Court of Appeal to fix a non-parole period under s 13(1). In a case such as the present, where a sentencing judge exercises the s 11(1) discretion unfavourably to the person being sentenced, there is no ‘failure’ to fix a non-parole period within the meaning of s 13(1).[1]
[1]Section 13(1) provides that the ‘failure’ of a sentencing court to fix a non-parole period under s 11 does not invalidate the sentence, but that the Court of…

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 Yost v The Queen

Details

AGLC: Yost v The Queen [2012] VSCA 181
Case: [2012] VSCA 181
Decision Date: 10 August 2012

CaseChat Overview and Summary

The appellant in this case, Yost, was appealing against a sentence imposed by the trial judge, arguing that the trial judge had erred in not fixing a non-parole period for his sentence. Yost was serving a life sentence for a previous crime and was released on parole. He subsequently committed a further offence by carrying a firearm as a prohibited person, leading to a breach of his parole conditions. As a result, his parole was cancelled, and he was sentenced to three years’ imprisonment with no non-parole period fixed. The Crown conceded that the trial judge had indeed erred in not fixing a non-parole period.

The key legal issue before the court was whether the trial judge had erred in declining to fix a non-parole period for the appellant's sentence. The court needed to consider the relevant statutory provisions, namely sections 11, 13, 15, and 16 of the Sentencing Act 1991, and the precedent set by R v Chamberlain [2001] VSCA 159. The Crown conceded that the trial judge had indeed erred in not fixing a non-parole period, and the court accepted this concession.

The court found that the trial judge had indeed erred in not fixing a non-parole period for the appellant's sentence. The court accepted the Crown's concession and applied the precedent set by R v Chamberlain [2001] VSCA 159, which held that a non-parole period should be fixed for sentences of imprisonment. The court found that the appropriate non-parole period for the appellant's sentence was two years. The appeal was allowed, and the appellant was resentenced to three years’ imprisonment with a non-parole period of two years.

Orders