Rasimi v The Queen

[2011] VSCA 365

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Relevant sentencing considerations
4. › Alternative offence carrying lesser maximum penalty
5. › Whether sentencing judge required to take into account lesser Commonwealth maximum penalty when sentencing for State offence
6. › Drugs Poisons and Controlled Substances Act 1981 (Vic), s 71AC
7. › Criminal Code (Cth), s 304.2
1. Criminal Law
2. › Sentencing
3. › Overlap between State and Commonwealth offences
4. › Prosecutorial discretion to charge under State or Commonwealth law
5. › Whether lesser penalty under alternative offence is relevant sentencing consideration
6. › Constitution (Cth), s 109
1. Appeal
2. › Criminal procedure
3. › Amendment of grounds of appeal
4. › Late application after appeal set down for hearing
5. › Whether very exceptional circumstances exist
6. › Supreme Court (Criminal Procedure) Rules 2008 (Vic), Order 2
1. Constitutional Law (Cth)
2. › Inconsistency of laws
3. › Overlap between State and Commonwealth criminal offences
4. › Whether sentencing for State offence must account for lesser Commonwealth penalty
5. › Constitution (Cth), s 109
6. › Judiciary Act 1903 (Cth), s 78B

Quick Take

Late applications to amend grounds of appeal after an appeal has been set down for hearing in Victoria will only be entertained in very exceptional circumstances under the post-2011 criminal appeal procedure rules. The question whether a sentencing judge must take into account a lesser Commonwealth maximum penalty when sentencing for a State offence (and vice versa) remains unresolved, with an apparent conflict between Victorian authority (R v [name withheld], R v [name withheld]) supporting the proposition and NSW authority (R v [name withheld]) rejecting it.