Della-Vedova v R

Case [2009] NSWCCA 107

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Shane DELLA-VEDOVA v R [2009] NSWCCA 107
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/15984

HEARING DATE(S):
2 April 2009

JUDGMENT DATE:
21 April 2009

PARTIES:
Shane DELLA-VEDOVA (Appellant)
REGINA (Respondent)

JUDGMENT OF:
McClellan CJatCL Simpson J Buddin J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0904

LOWER COURT JUDICIAL OFFICER:
Williams DCJ

LOWER COURT DATE OF DECISION:
15 May 2008

COUNSEL:
P Strickland SC (Appellant)
W J Abraham QC & L K Crowley (Respondent)

SOLICITORS:
S Kavanagh (Legal Aid Commission of NSW) (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
particular offences
property offences
unauthorised possession of prohibited weapons
dishonest appropriation of Commonwealth property
CRIMINAL LAW
appeal against sentence
whether error in considering evidence of remorse
whether error in accumulation of sentences
whether error in applying discount for plea of guilty
whether sentence manifestly excessive

LEGISLATION CITED:
Weapons Prohibition Act 1998 (NSW)
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999
Listening Devices Act 1984

CATEGORY:
Principal judgment

CASES CITED:
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Lodhi [2006] NSWSC 691
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Dudko [2002] NSWCCA 336; 132 A Crim R 371
R v Shenton [2003] NSWCCA 346
Cameron v The Queen [2002] HCA 6; 209 CLR 339

TEXTS CITED:

DECISION:
Leave to appeal granted.  Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/15984

McCLELLAN CJ at CL
SIMPSON J
BUDDIN J

Tuesday 21 April 2009

Shane DELLA-VEDOVA v R

Judgment

  1. McCLELLAN CJ at CL:  I agree with Simpson J.

  2. SIMPSON J:  The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 15 May 2008 following his pleas of guilty to two charges on an indictment.

  3. The first charge was brought under s 7(1) of the Weapons Prohibition Act 1988 (NSW), and alleged unauthorised possession of prohibited weapons.  The prohibited weapons were specified as ten rocket launchers containing ten rockets.

  4. The second charge was brought under s 131.1(1) of the Criminal Code Act 1995 (Cth) and alleged dishonest appropriation of Commonwealth property. The Commonwealth property was specified as ten rocket launchers containing ten rockets.

  5. It was common ground that the same ten rocket launchers containing rockets were the subject of each count.

  6. S 7(1) of the Weapons Prohibition Act specifies a maximum penalty of imprisonment for 14 years on conviction for an offence against that section. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 3 years is prescribed.

  7. An offence against s 131.1(1) of the Criminal Code Act carries a maximum penalty of imprisonment for 10 years.

  8. Williams DCJ sentenced the applicant, on the Commonwealth offence (appropriation), to imprisonment for 6 years with a non-parole period of 4…

Continue reading Della-Vedova v R

Sign in free to access the full text

Details
AGLC
Della-Vedova v R [2009] NSWCCA 107
Case
[2009] NSWCCA 107
Decision Date

CaseChat Overview and Summary

The case of Della-Vedova v R involved the applicant appealing against his sentence on charges of unauthorised possession of prohibited weapons and dishonest appropriation of Commonwealth property. The appeal was heard in the Court of Criminal Appeal. The central legal issues were whether there was an error in the consideration of evidence of remorse, whether there was an error in the accumulation of sentences, and whether the discount applied for the plea of guilty was appropriate. Additionally, the court had to determine if the sentence was manifestly excessive.

In addressing these issues, the court examined the manner in which the statement of agreed facts was presented. The court found that the document was poorly framed, making it difficult to distinguish between assertions of fact and accepted facts. This lack of clarity was problematic, as it did not clearly identify the facts upon which the applicant was to be sentenced. The court also noted that the statement contained extensive references to statements from alleged co-offenders without clear demarcation of what was accepted as fact. This framing of the statement of facts undermined the reliability and clarity of the sentencing process.

The Court of Criminal Appeal held that the errors in the statement of facts and the manner of sentencing led to an unjust outcome. The court found that the sentence was manifestly excessive due to the accumulation of sentences and the lack of proper consideration of the evidence of remorse. The court concluded that the discount for the plea of guilty was also improperly applied. As a result, the court allowed the appeal, quashed the sentence, and remitted the matter to the sentencing court for re-sentencing.

The final orders included the quashing of the original sentence and the direction that the matter be re-sentenced by the sentencing court, taking into account the errors identified by the Court of Criminal Appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Williams DCJ sentenced the applicant, on the Commonwealth offence (appropriation), to imprisonment for 6 years with a non-parole period of 4 years, commencing on 5 April 2007; on the State charge (possession), he sentenced the applicant to imprisonment for 8 years, made up of a non-parole period of 5 years, and a balance of term of 3 years, which he partly accumulated upon the earlier imposed sentence, to commence on 5 April 2009. The total effective sentence was imprisonment for 10 years with a non-parole period of 7 years.The facts What purported to be a statement of agreed facts was put before the sentencing judge in a document bearing a combined letterhead, and the logos, of the Australian Federal Police, the NSW Police Force, and the NSW Crime Commission. It also contained the following:“Joint Counter Terrorism Team - SydneyNSW Police Force Terrorism Investigations SquadAustralian Federal Police Counter TerrorismNSW Crime Commission.”The document is signed by a Detective Senior Constable identified as the officer in charge of a named Strike Force. This document appears to be the work of the investigative team, for submission to the Director of Public Prosecutions (“the DPP”) for consideration of what, if any, prosecution ought result therefrom. However, this Court was told that it was, in fact, a document prepared for the purposes of the sentencing proceedings. The manner in which the statement of facts is framed makes it very difficult to discern what is agreed to be fact, and what is merely assertion. For example, it contains extensive reference to, and extracts from, two statements of a person (named only as “Harrington”) who was said to be a former prisoner and co-offender and, who had been convicted of and imprisoned for drug offences, but who had received, from the Commonwealth Attorney General, an indemnity against prosecution in respect of Commonwealth offences. (He has not received a corresponding indemnity from NSW authorities). The statement of facts also contains reference to a statement made by another alleged co-offender (Abdul-Rahman), who, (the statement recorded) at the time of the preparation of the statement of facts and of sentence, had been charged with offences against the Weapons Prohibition Act and against the Criminal Code (s 132.1, receiving stolen property), and whose trial was then pending. Some reference was also made to a statement of another person (Ahmad Hassan). Also before the court was a record of a conversation in which the applicant was a participant and which was recorded pursuant to a warrant issued under the Listening Devices Act 1984. The transcript of an interview in which the applicant participated was also before the court. What is entirely unsatisfactory about the manner in which the statement of facts is framed is that it does not distinguish between assertions of fact made by those individuals to whose statements reference is made, and facts accepted as true by both the prosecution and the applicant; it does not identify, nor make any attempt to identify, the facts upon which the applicant was to be sentenced.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.