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[2003] VSCA 210
appellant. Court ordered: (1) leave to appeal against the 28 May 2003 sentence granted; (2) appeal allowed; (3) the sentence varied by ordering that the applicant serve a minimum of nine months from 28 May...
The Court of Appeal held that when a suspended sentence is restored for breach the restoration is 'sentencing' under the Sentencing Act, so the judge should have fixed a non-parole period; his failure to do so was an error requiring re-sentencing. The Court restored the suspended two year sentence but fixed a nine month non-parole period from 28 May 2003, otherwise confirming sentences (see [25], [29], [47]).
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1,649 words · generated 17/07/2026
Mark Ronald Fiddes was subject to a two year wholly suspended sentence imposed on 2 February 2000 for causing serious injury. Between 20 October and 20 November 2001 he cultivated opium. He pleaded guilty and on 7 November 2002 was sentenced in the County Court to two years' imprisonment, one year of which was suspended. On 28 May 2003 the County Court dealt with the breach of the 2000 suspended sentence, restored that two year sentence and directed that so much of the restored sentence be served concurrently with the November 2002 sentence up to 14 October 2003, with the remainder cumulative (resulting in approximately a further 19 months to complete the restored sentence). The sentencing judge did not fix a non-parole period in respect of the restored sentence, expressing the view he lacked power to do so (see [7], [13], [16], [19], [25]).
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Fiddes sought leave to appeal the sentences. The principal ground identified in the Court of Appeal was that the County Court judge erred in concluding he had no power to fix a non-parole period when restoring the suspended sentence. The Court of Appeal accepted that error, following R v Hatch and the statutory regime in the Sentencing Act 1991 (Vic), concluded the restoration constituted sentencing for the purposes of s.11(1), and that the judge was required to fix a non-parole period unless it was inappropriate. The Court therefore re-sentenced: it restored the suspended sentence (as from 28 May 2003) but fixed a non-parole period of nine months, otherwise confirming the sentences and recording time already served (see [25], [29], [47]).
The Court of Appeal's decision turned on statutory construction and precedent. Section 11(1) of the Sentencing Act requires a court to fix a non-parole period when it imposes a sentence of imprisonment unless it considers a non-parole period would be inappropriate. The Court relied on R v Hatch [1998] 3 VR 693, where Callaway J.A. explained that restoration of a suspended sentence amounts to "sentencing" for the purposes of the Act, and that the usual obstacles to combining a non-parole period and a suspended sentence at first instance do not apply where the court is dealing with breach and restoration because the court can change from the sentencing alternative of suspension to the alternative of parole and may therefore fix a new single non-parole period (see [25], quoting Hatch at 699).
Applying that principle, the Court held the County Court judge's stated belief that he lacked power to fix a non-parole period was legally incorrect. That error was not merely technical: because it led to a disposition that did not comply with the mandatory procedure in s.11(1), it vitiated the sentencing discretion. On that basis the Court concluded it was incumbent upon the Court of Appeal to re-sentence (see [29]). Having regard to the factual material, notably the applicant's engagement with a methadone program, other rehabilitative prospects, family support and the psychiatric report of Dr Bell (which the Crown did not object to being used), the Court determined that restoring the suspended sentence while fixing a nine month non-parole period appropriately balanced individual rehabilitation and community protection (see [13], [16], [29]).
Before this decision (and consistent with Hatch), there was an established line that restoration of a suspended sentence is itself a sentencing act for the purposes of the Sentencing Act and that the court dealing with breach can (and ordinarily should) fix a non-parole period when it restores the sentence. The County Court judge in Fiddes had proceeded on a contrary view, believing he lacked power to fix a non-parole period on restoration; the Court of Appeal corrected that approach.
After Fiddes the position is reinforced in Victorian appellate authority: on restoration of a suspended sentence the sentencing court must consider s.11(1) and, unless there are reasons rendering fixation inappropriate, must fix a non-parole period. The Fiddes decision applies Hatch and emphasises that failure to obey this statutory requirement is an error warranting appellate intervention and re-sentencing where appropriate (see [25], [29]).
Practically, sentencing judges dealing with breaches must expressly consider whether to fix a non-parole period when restoring a suspended sentence, articulate reasons if they decide not to fix one, and be aware that appellate courts will treat an omission to consider or apply s.11(1) as a reviewable error.
Passage (court): "it seems clear enough that in light of ss.11 and 31(5) of the Sentencing Act and R. v. Hatch, the learned sentencing judge did have the power to fix a non-parole period in respect of the restored sentence and was required to do so unless he considered that, for relevant reasons, such a course would be inappropriate." [25]
Passage (court): "I consider that His Honour's conclusion that he did not have power to fix a non-parole period ... amounted to sentencing errors which vitiated his sentencing discretion so that it is incumbent upon this Court to re-sentence the applicant." [29]
Passage (court): "I would ... restore the suspended sentence of two years ... but fix a non-parole period in respect of it of nine months." [29]
Operative order: "The sentence is varied by ordering that the applicant serve a minimum of nine months from 28 May 2003 before becoming eligible for parole." [47]
This authority is engaged when:
If any of those elements occur, Fiddes (following Hatch) requires the sentencing judge to treat restoration as sentencing and to either fix a non-parole period or record why fixation is inappropriate. An appellate court confronted with a failure to follow that process will consider whether the failure vitiated discretion and may re-sentence.
Fiddes itself follows and applies R v Hatch. It serves as a Victorian Court of Appeal confirmation that Hatch remains authoritative: restoration triggers the obligations under s.11(1). Lower courts in Victoria should treat Fiddes as binding appellate direction to address non-parole fixation on breach and to ensure sentencing remarks articulate compliance with s.11(1) or reasons for departing from it. The judgment also illustrates appellate willingness to re-sentence where statutory sentencing procedure has not been observed and the error is material to the outcome (see [29]).
(Practitioners should consult subsequent Victorian appellate decisions and statutory amendments for further developments; this deep dive is limited to the materials within the judgment and the authorities cited therein.)
What constitutes "relevant reasons" to decline to fix a non-parole period on restoration? Fiddes states the statutory obligation and that a court may decline fixation where inappropriate, but it does not catalogue comprehensive circumstances that justify non-fixation. That remains case-specific and would be developed by later decisions as courts delineate acceptable reasons for not fixing a non-parole period (see [25]).
Practical interaction with partial concurrency orders: The sentencing judge attempted to provide partial concurrency up to a specified date (14 October 2003) rather than fix a non-parole period. Fiddes treats such approaches as insufficient when s.11(1) applies. The precise permissible interplay between concurrency directions and a fixed non-parole period (for example, whether a court can achieve similar outcomes by carefully crafted concurrency orders without setting a formal non-parole period) may require further judicial consideration in future cases (see [16], [25]).
Weight to be given to rehabilitative evidence on re-sentencing: Fiddes refers to and uses material bearing on rehabilitation, including a psychiatric report which the Crown did not object to being referred to (see [29]). The case shows appellate courts will consider such material when determining the appropriate non-parole period, but it leaves open the limits to which fresh evidence will be received on appeal for re-sentencing and the standard governing its admissibility and weight.
Statutory interaction in other jurisdictions and legislative amendments: Fiddes grounded its holding in s.11(1) and s.31(5) of the Victorian Sentencing Act and Hatch. If the statute is amended, or different statutory language applies in other Australian jurisdictions, the reasoning may require adaptation. Practitioners should note the holding is anchored to the Victorian statutory text as construed at the time.
Conclusion
R v Fiddes is a clear appellate pronouncement that restoration of a suspended sentence amounts to sentencing for the purposes of the Sentencing Act, obliging courts to address non-parole period fixation. The decision corrects a common practical error by sentencing judges who may treat restoration as a purely administrative reinstatement without engaging the statutory duty under s.11(1). The Court's re-sentencing, fixing a nine month non-parole period and expressly noting time served, also provides a template for appellate correction where a sentencing error has materially affected the outcome.
[ 2003] VSCA 210
Criminal Law - Sentencing - Suspended sentence - Breach - Restored term of suspended sentence - No non-parole period fixed - Power of court to set non-parole period when suspended sentence restored - Non-parole period of nine months ordered - Sentencing Act 1999, ss.11(1), 31(5).
"The two principal obstacles to combining a non-parole period and a suspended sentence when the suspended sentence is [first] imposed do not apply on breach for the Court has the option of changing from the sentencing alternative of suspension to the sentencing alternative of parole ... It may accordingly fix a new single non-parole period in respect of all the sentences the offender is to serve or complete and is obliged to do so".
1. The application for leave to appeal against the sentence imposed by Judge Wodak on 28 May 2003 is granted.
2. The appeal is treated as instituted and heard instanter and is allowed.
3. The sentence then imposed is varied by ordering that the applicant serve a minimum of nine months from 28 May 2003 before becoming eligible for parole.
5. The Court declares that the applicant has at today's date served 195 days of such sentence of imprisonment and directs that this declaration be noted in the records of the Court.
6. The application for leave to appeal against the sentence imposed by Judge Duggan on 7 November 2002 is dismissed.
I certify that this and the preceding 4 pages are a true copy of the reasons for judgment of Charles and Chernov, JJ.A. and Ashley, A.J.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 8 December 2003.
[1] [1998] 3 V.R. 693 per Callaway, J.A. and 703 per Batt, J.A.
[3] At 699. At 703 Batt, J.A. expressed his agreement with Callaway, J.A. on that issue.
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Fiddes [2003] VSCA 210
Court ordered: (1) leave to appeal against the 28 May 2003 sentence granted; (2) appeal allowed; (3) the sentence varied by ordering that the applicant serve a minimum of nine months from 28 May 2003 before becoming eligible for parole; (4) sentence otherwise confirmed; (5) declaration applicant had served 195 days of that sentence to be noted; (6) application for leave to appeal the 7 November 2002 sentence dismissed (see [47]).