R v Kalamaris [2002] VSCA 185

Court of Appeal (Vic)|2002-11-11|Before: WINNEKE, P., EAMES, J.A. and O'BRYAN, A.J.A.

WINNEKE, P. (Delivering the judgment of the Court):

This is an appeal by Anthony Kalamaris against the sentence imposed by her Honour Judge King in the County Court on 16 December 2001, by which her Honour imposed a total effective sentence upon the appellant of four years and ordered that two years of that sentence be served cumulatively upon the total effective sentence of three years which had been imposed upon the appellant on 23 August 2001 by Judge Crossley in the County Court. Judge Crossley ordered the appellant to serve a non-parole period of two years, which was to commence on the date of his sentence, namely, 23 August 2001. When Judge King imposed sentence on 16 December 2001, she was required to impose a new non-parole period, which she said would be one of "three years from this day", that is, 16 December 2001. However, she also said that it was her intention that the appellant serve "an additional one year minimum term" to that which had been ordered by Judge Crossley.

Because there appears to have been a discrepancy between the orders made by her Honour and her intentions, particularly having regard to the credits for pre-sentence detention, I granted leave to appeal in this matter on 20 September last. It has been agreed that the sentence imposed by Judge King should be amended to conform with her stated intentions. The appellant does not claim that the sentences actually imposed by her Honour were manifestly excessive.

We are satisfied that the appeal should therefore be allowed and that the sentence imposed in the terms which her Honour did impose should be quashed. In lieu thereof we will order that the appellant be re-sentenced as follows:

The total effective sentence is therefore one of four years. Two years of that sentence are to be served cumulatively upon the sentence imposed by Judge Crossley on 23 August 2001, producing a total effective sentence of five years to be served from 23 August 2001.

We further order that the appellant serve a period of three years from 23 August 2001 before becoming eligible for parole.

We further direct pursuant to s.18 of the Sentencing Act that a period of 200 days' pre-sentence detention should be declared as having been served pursuant to this sentence as at 23 August 2001. The earliest release date of the appellant should therefore be 2 February 2004.

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