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[2005] VSCA 80
Court of Appeal (Vic)
2005-04-07
CALLAWAY, BATT and BUCHANAN, JJ.A.
Original judgment source is linked above.
Criminal law - Sentencing - Co-offenders given identical, lenient sentences - Crown appeal against one co-offender's sentence dismissed because of double jeopardy - Other co-offender appealing against his sentence - Warning to counsel that double jeopardy does not apply to an offender's own appeal, because the offender chooses to stand for sentence twice - Application to abandon appeal - Whether application should be granted - Application granted only because of practical difficulties arising from dismissal of Crown appeal against co-offender's sentence - Crimes Act 1958, ss.567A(1), (1A), 568(4).
1 The appellant and his co-offender, Toby Fraser, were each convicted in the County Court on two counts of reckless conduct endangering a person (counts 1 and 3), two counts of armed robbery (counts 2 and 4), one count of common assault (count 5) and two counts of making a threat to inflict serious injury (counts 6 and 7). They were given identical sentences, including total effective sentences of three-and-a-half years' imprisonment with a non-parole period of 22 months. The Director of Public Prosecutions appealed against the sentence imposed on Fraser.[1] The appeal was reluctantly dismissed. Batt, J.A. considered that the total effective sentence was so manifestly inadequate as to show error in principle. Vincent, J.A. said that, had he been the sentencing judge, sentences of a significantly greater length would have been imposed. The appeal failed because of the constraints attending a Crown appeal, including the principle of double jeopardy, pursuant to which a somewhat lesser sentence than would be warranted is imposed if such an appeal succeeds.
2 Double jeopardy usually[2] applies to a Crown appeal pursuant to s.567A(1) of the Crimes Act 1958. It does not apply to a Crown appeal pursuant to sub-s. (1A).[3] There is no reason why it should apply to an appeal brought by an offender. The discount given when a Crown appeal succeeds is to reflect the fact that the offender, through no fault of his own, stands for sentence twice at the instance of the Crown. If the offender himself appeals, he stands for sentence twice by his own choice.[4] If the Court of Appeal considers that the sentence was manifestly inadequate, he cannot complain if a higher sentence is substituted and it would be contrary to the public interest for the Court not to do so. Accordingly, in the present appeal, it would be open to us to increase even the total effective sentence and the non-parole
period, notwithstanding the result of Director of Public Prosecutions v. Fraser, although that would require careful consideration for practical reasons. The Court might be reluctant to produce what would understandably be perceived as a further anomaly. Much would depend on the parity ground the appellant relies on. We have not heard argument and I express no view on that ground. Nevertheless, in the light of the observations in Director of Public Prosecutions v. Fraser, my own reading of the papers and my familiarity with the argument about to be presented, because of Mr Carter's very able outline, I have little doubt that at least some of the individual sentences would have been substantially increased.
3 When the case was called on this morning, I raised these matters with Mr Carter. With their Honours' concurrence, I invited him to reflect on them and to seek instructions. I acknowledged that there might be practical difficulties in increasing the total effective sentence, but I said to him that the best likely result for his client appeared to be that the appeal would be dismissed. One could not exclude other possibilities. We stood the case down and heard the next appeal. During that time Mr Carter discussed the matter with his client. He now seeks leave to abandon the appeal.
4 The only reason I would be willing to grant that application is the result in Director of Public Prosecutions v. Fraser. Had that not been a factor to consider, I would have insisted on the appeal proceeding. The matter would then have been reserved and the Court would have had to give careful consideration to what justice required in relation to these very serious crimes.
5 For the reason I have given, however, I propose that the application for leave to abandon be granted.
8 The order of the Court is that the appellant have leave to abandon his appeal and to file a notice of abandonment.
[1] Director of Public Prosecutions v. Fraser [2004] VSCA 145.
[2] For an example of an exceptional case, see Director of Public Prosecutions v. Burgess [2001] VSCA 135; (2001) 3 V.R. 363 at 386 [58].
[3] Director of Public Prosecutions v. Haunga [2001] VSCA 73; (2001) 4 V.R. 285 at 294 [20].
[4] Crimes Act 1958, s.568(4).
R
Underwood [2005] VSCA 80