R v Wenitong [2001] VSCA 162

Court of Appeal (Vic)|2001-09-18|Before: WINNEKE, P., ORMISTON and BUCHANAN, JJ.A.

Criminal law - Application for leave to appeal against sentence - Sentences of nine years imposed for armed robbery - Judge ordering five years of sentence to be served cumulatively with sentence of 18 years already being served for murder - Judge fixing 18 years as "new" non-parole period - murder conviction subsequently quashed by Court of Appeal and nolle prosequi entered - Application for leave to appeal against sentences imposed for armed robbery - Whether appropriate for Court to re-sentence applicant; or to remit matter to trial judge pursuant to s.568(5) of Crimes Act 1958 - Court deciding to re-sentence.

The applicant, who is now 29 years of age, has a lengthy criminal history. He admitted 41 previous convictions, including two for armed robbery and nine for car thefts. He was taken into custody on the day of the robbery and has remained there ever since. This has been due to a variety of factors which have a bearing on this Court's function today. The plea in respect of these matters did not take place until April of last year. The proceedings had been adjourned upon the application of the applicant because he had been charged with a murder alleged to have occurred shortly before the armed robbery. In the fullness of time the applicant was tried and convicted of murder and sentenced on 4 November 1999 by Coldrey, J. to 18 years' imprisonment with a non-parole period of 14 years.

The robbery and theft counts were brought before a County Court judge, as I have said, in April 2000, when the applicant pleaded guilty. By that time the same judge had already dealt with the co-offenders, namely, Brennan on 19 November 1997 and Synan on 27 August 1998. Brennan, who was aged 30 at the date of sentence and who admitted 19 prior convictions, was sentenced to 6½ years' imprisonment on the armed robbery count and 12 months on the theft of the car, and, with cumulation orders, was given a total effective sentence of 7 years' imprisonment. A non-parole period in his case of 3 years and 6 months was fixed. Synan, who was 34 at the time of sentence and who admitted 78 prior convictions, including robbery and aggravated burglary, and who had been the driver of the car in the robbery, was sentenced to 7½ years for the robbery and 12 months for the theft. Cumulation orders in his case led to a total effective sentence of 8 years, and her Honour fixed a non-parole period of 4½ years.

It was in these circumstances that her Honour dealt with the applicant for the robbery and the theft in April 2000. She referred to material received on the plea from a psychologist, who gave evidence about the difficulties which the applicant had experienced during his childhood, many of which stemmed from the applicant's Aboriginality. She nevertheless regarded the applicant's criminal conduct in the robbery as of "high magnitude", it being he who entered the premises armed with the pistol and wantonly discharged it, to the terror of those present. Her Honour found, and his counsel conceded, that the applicant had played the principal role in the crimes. In her view the applicant's offending was at the high end of the range of offences of armed robbery. None the less, she took account of the evidence of the psychologist, the applicant's complete admissions and his remorse, all of which gave, in her Honour's words, "some measure of hope for rehabilitation". Her Honour was concerned to impose a sentence which would not offend the parity principle in relation to the co-offenders. She sentenced the applicant to 12 months for the theft and 8½ years for the armed robbery. She ordered that six months of the sentence on the count of theft be served cumulatively with the sentence on Count 2, the armed robbery. The total effective sentence was therefore one of 9 years. She directed that 5 years of the sentence be served cumulatively with the sentence of 18 years on the murder count, which sentence the applicant was then undergoing. She fixed a new non-parole period, as she was bound to do, of 18 years.

No application for leave to appeal against these sentences was made until August of this year. Leave to apply out of time should be granted because of the peculiar circumstances that have arisen. No contest on that account is raised by the respondent.

On 13 March 2001 this Court allowed the applicant's appeal against his murder conviction, and on 5 June 2001 the Crown entered a nolle prosequi in respect of that charge. The consequence is that the applicant is still to serve the balance of his sentence of 9 years for the robbery and theft, but still has a non-parole period fixed at 18 years. Thus the matter comes before this Court pursuant to the application for leave to appeal against the sentence imposed.

Mr Lewis on behalf of the applicant submits that the Court should remit the matter back to the sentencing judge pursuant to s.568(5) of the Crimes Act 1958. He submits that the sentencing judge made no error in the manner in which she carried out her task. Although he suggested that there might be a basis for lowering the head sentence, I cannot see, for myself, that that is a realistic possibility, because of the very careful way in which her Honour had regard to the sentencing principles, in particular parity principles, in fixing that sentence. Mr Lewis submitted, however, that fairness required the matter to be remitted to her Honour because she had never had to apply her mind to the fixing of the minimum term.

It seems to me, if I may say so, to be both unnecessary and a waste of time to remit the matter to her Honour pursuant to s.568(5). It cannot properly be said to be unfair to the applicant for this Court to fix the proper minimum term when it has before it all the necessary material which was before her Honour. Nor does it seem to me to be open to complain that, if this Court is to fix the minimum, the applicant will be deprived of the prospect of an appeal. This Court is perfectly able, on the material before it, which is said to be all the material which was before her Honour, to fix an appropriate minimum sentence. In my view there is no basis for disturbing the head sentences fixed by her Honour, nor the order for cumulation, and, therefore, the total effective sentence. The reasons for setting those sentences were fully set out by her Honour and I can see no basis for suggesting that they were imposed in error. Indeed, it is conceded that no error was made.

9 I would order, on the basis of the material before the sentencing judge and the submissions made to this Court by Mr Lewis, that the applicant serve a non-parole period of six years before becoming eligible for parole. He has now served 1,676 days in custody pursuant to that sentence, and that time will have to be declared.

The formal order of the Court is that the application for leave to appeal against sentence is allowed. The appeal is allowed solely to set aside the non-parole period fixed by her Honour. The non-parole period of 18 years is quashed. In lieu thereof we order that the applicant serve a period of 6 years before becoming eligible for parole.

The Court declares that a period of 1,676 days has already been served by the applicant pursuant to the sentence. We order that the declaration and its details be noted in the records of the Court.

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