The Court of Appeal today granted leave to appeal against sentence, and allowed the appeal, by an offender who pleaded guilty to one charge of aggravated burglary, one charge of conspiracy to commit aggravated burglary and two charges of theft.
In July 2013, a home invasion was committed by three armed men against the parents of the offender's ex-partner. It was not alleged that the offender was one of those men, but it was alleged that he was a part of a joint criminal enterprise to enter the house and to steal from the victims (aggravated burglary). Telephone intercepts obtained also recorded the offender arranging to commit another aggravated burglary (conspiracy). It was further alleged that the offender stole a campervan and an outboard boat and trailer (theft).
The offender pleaded guilty to each charge and was sentenced to a total effective sentence of 2 years' imprisonment and a 3 year community correction order ('CCO') with conditions. No non-parole period was fixed.
Before the Court of Appeal, the offender contended that the sentence was in error because of the failure to fix a non-parole period. The Crown accepted that this was so. The Court agreed, concluding that s 11(1) of the Sentencing Act 1991 required a non-parole period to be fixed where a sentence of 2 or more years is imposed, subject to exceptions which did not arise in the case. It followed that the sentence was to be set aside and the offender resentenced.
The Court observed, repeating what it had said in Deng-Mabior v The Queen [2015] VSCA 179, that when imposing a 2 year sentence, ss 11 and 44 of the Sentencing Act led to anomalous and unintended results. Section 44 of the Act enables a sentencing judge to impose a CCO along with a sentence of imprisonment up to 2 years, but s 11 requires the fixing of a non-parole period for a 2 year sentence. The Court said: 'it was plainly not the intention that when a Court imposes a CCO along with a sentence of 2 years' imprisonment, but not any lesser period, it must also provide for eligibility for parole. Such a result would be arbitrary and anomalous.'
The Court re-sentenced the offender to 22 months' imprisonment and a 3 year CCO with conditions.