Calimbas and VERGILLA v The Queen - [2010] NSWCCA 245

New South Wales
Court of Criminal Appeal

CITATION: CALIMBAS & VERGILLA v R [2010] NSWCCA 245

HEARING DATE(S): 16 September 2010

JUDGMENT DATE:
16 September 2010

JUDGMENT OF: McColl JA at 27; Hulme J at 1; Latham J at 28

EX TEMPORE JUDGMENT DATE: 16 September 2010

DECISION: Leave to appeal granted. Appeal dismissed.

PARTIES: CALIMBAS, Curt
VERGILLA Oscar
REGINA

FILE NUMBER(S): CCA 2008/8842; 2008/8843/9982

COUNSEL: Crown: P Ingram
Applicants: T Gartelmann

SOLICITORS: Crown: S Kavanagh
Applicants: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 9 December 2008

- 7 -

2008/8842
2008/8843/9982

MCCOLL JA
RS HULME J
LATHAM J

Thursday, 16 September 2010

Oscar VEGILLA v R

Curt CALIMBAS v R

Judgment

1 RS HULME J: On 23 November 2007 four persons robbed the Rhodes Branch of the Bank of Queensland. Two were armed with crowbars and two with shotguns. During the course of the robbery police were notified and attended while the robbery was still in progress. As an incident of the events, a number of offences were committed.

2 The offenders were Oscar Vegilla, Curt Calimbas, Toka Makira and Terry Taniela. With the exception of Vegilla who was charged with the seventh offence listed below, the charges against each offender were identical. The offences, the relevant statutory provisions, and the maximum period of imprisonment prescribed for the offences are as follows:-

No	Offence	Section/Act	Maximum
1	Carried in conveyance without consent of owner	154A Crimes Act	5 years
2	Robbery armed with a dangerous weapon	97(2) Crimes Act	25 years
3	Discharge loaded firearm with intent to prevent lawful apprehension	33A(2) Crimes Act	20 years
4	Fire firearm near public place	93G(1)(b) Crimes Act	10 years
5	Possess shortened firearm without authorisation	62(1)(b) Firearms Act	10 years
6	Possess prohibited firearm without authorisation	7(1) Firearms Act	14 years
7	Attempt take motor vehicle without consent when person in vehicle and recklessly inflict actual bodily harm	154C(2) & 344A Crimes Act	14 years

3 Pursuant to s54A et seq of the Crimes Sentencing Procedure Act, a standard non-parole period of 3 years has been prescribed for the offence I have numbered 6.

4 Briefly summarised, the circumstances of the offending were as follows. In a vehicle stolen some days beforehand, the four offenders drove to the bank. All four left the vehicle, Taniela and Calimbas armed with shotguns and the other two each with a crowbar. A security guard was pushed into the bank and forced to the ground. Calimbas and Taniela approached the service counter and Calimbas levelled a shotgun at staff. The security screen was activated but Vegilla with the assistance of others was pushed towards the ceiling, removed ceiling tiles and then via the roof cavity entered the area behind the security screen.

5 Vegilla opened the security door from inside and he, Calimbas and Makira then commenced to ransack teller drawers. At least one member of staff was manhandled.

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 Calimbas and VERGILLA v The Queen

Details

AGLC: Calimbas and VERGILLA v The Queen [2010] NSWCCA 245
Case: [2010] NSWCCA 245
Decision Date: 16 September 2010

CaseChat Overview and Summary

The case of Calimbas and Vergilla v The Queen involves the appeals of Curt Calimbas and Oscar Vergilla against their respective sentences imposed by the District Court. The legal issues that the Court of Criminal Appeal had to decide included whether the sentences imposed on Calimbas and Vergilla were justified in disparity to the sentences imposed on their co-offenders, Toka Makira and Terry Taniela. The applicants argued that the disparity in their sentences was unjust and led to a justified sense of grievance.

The Court of Criminal Appeal found that the reason for the difference in the extent of accumulation in the sentences was a mistake. However, the Court held that a sense of grievance is not justified or justifiable if a lower sentence imposed on a co-offender is unduly lenient. The Court further stated that the sentences imposed on Makira and Taniela were not only manifestly inadequate but grossly inadequate, given the offenders' records and the description of the offending. The Court held that leave to appeal should be granted but the appeal dismissed.

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal of Calimbas and Vergilla against their respective sentences imposed by the District Court. The Court found that the sentences imposed on the co-offenders, Makira and Taniela, were grossly inadequate, and that the reason for the difference in the extent of accumulation in the sentences was a mistake. However, the Court held that a sense of grievance is not justified or justifiable if a lower sentence imposed on a co-offender is unduly lenient.

Orders