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Abela v The Queen

Abela v The Queen

Case [2014] VSCA 266 24 October 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0229 S APCR 2014 0033
JASON ABELA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2014
DATE OF ORDERS:	11 September 2014
DATE OF JUDGMENT:	24 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 266
JUDGMENT APPEALED FROM:	DPP v Abela [2013] VCC 762 (Judge Cannon)

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CRIMINAL LAW – Application for leave to appeal against conviction – Indictment on Commonwealth offence signed by Victorian prosecutor who had not been delegated the powers of the Commonwealth Director of Public Prosecutions pursuant to Director of Public Prosecutions Act 1983 (Cth) s 31 – Appeal allowed – Conviction quashed.

CRIMINAL LAW – Sentence – Continuing criminal enterprise (CCE) offences – Adequacy of reasons for CCE sentences – Structural arguments as to sentences discouraged – Comparison with non-CCE sentences unhelpful – R v Arundell [2003] VSCA 69 and R v Grossi (2008) 23 VR 500, applied – Manifest excess not made out – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	James Dowsley & Assoc
For the Crown	Mr P J Doyle	Mr Craig Hyland, Solicitor for Public Prosecutions

ASHLEY JA
REDLICH JA:

Following a plea of guilty in the County Court, on 6 June 2013 the appellant, Jason Abela, was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three and a half years’ imprisonment in respect of a total of 33 offences, one of which was an offence against a law of the Commonwealth. All the others (including one summary offence) were State offences.

On 11 September this year, for reasons to be published, the Court —

(i) granted the appellant leave to appeal against his conviction on the Commonwealth charge, allowed the appeal and quashed the conviction;

(ii) granted the appellant leave to appeal against sentences imposed on charges 14, 15, 16, 17, 19, 20, 21 and 25 on the indictment, but dismissed the appeal.

These are our reasons.

The conviction application

The Commonwealth offence (charge 2) was that the appellant made counterfeit money contrary to s 6 of the Crimes (Currency) Act1981 (Cth). The ground of appeal was that the indictment had been signed by a Victorian prosecutor who was not at any relevant time delegated the powers of the Commonwealth Director of Public Prosecutions pursuant to s 31 of the Director of Public Prosecutions Act1983 (Cth). In consequence, it was contended, the indictment was not validly made, and in those circumstances the conviction could not be maintained.[1]
[1]Ravarotto v The Queen [2012] VSCA 263.

Counsel for the Crown has properly conceded that this ground was made out.

The application for leave to appeal against conviction on charge 2 was accordingly granted, the appeal allowed, and the conviction quashed.

There could not be a new trial unless and until an indictment signed by a delegated prosecutor was filed. Counsel agreed, notwithstanding s 277(1)(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abela v The Queen

Details

AGLC: and Jason Abela v The Queen [2014] VSCA 266
Case: [2014] VSCA 266
Decision Date: 24 October 2014

CaseChat Overview and Summary

The case of Abela v The Queen involved an appeal against conviction and sentence by the appellant, who was convicted of multiple offences under the Commonwealth Criminal Code Act 1995. The central issue in this appeal was twofold. Firstly, the appellant challenged the validity of the indictment, arguing that it was signed by a Victorian prosecutor who had not been delegated the necessary authority by the Commonwealth Director of Public Prosecutions as required by section 31 of the Director of Public Prosecutions Act 1983 (Cth). Secondly, the appellant sought to appeal the adequacy of the reasons provided for the sentences imposed for continuing criminal enterprise (CCE) offences, as well as to argue that the sentences were manifestly excessive.

The court found that the indictment was indeed invalid as the prosecutor lacked the requisite delegation of authority, leading to the quashing of the conviction. Regarding the sentencing issue, the court acknowledged the appellant's arguments but held that the reasons provided for the CCE sentences were sufficient and that the comparison with non-CCE sentences was not helpful. The court found that the appellant had not demonstrated that the sentences were manifestly excessive. It was noted that the appellant had not succeeded in establishing any structural defects in the sentencing process, and therefore, the appeal against the sentences was dismissed.

In summary, the court allowed the appeal against conviction and quashed the conviction due to the invalidity of the indictment. However, the appeal against the sentence was dismissed, and the sentences imposed were upheld. The court did not make any further orders in relation to the sentencing.

Orders