Director of Public Prosecutions v Ludwig

[2014] VCC 997

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02188 and CR-13-01088

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL LUDWIG

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2014, 5 and 9 May 2014
DATE OF SENTENCE:	12 May 2014
CASE MAY BE CITED AS:	DPP v Ludwig
MEDIUM NEUTRAL CITATION:	[2014] VCC 997

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G Schubert	CDPP
For the Offender	Mr R Devolle	Robert DeVolle Barristers and Solicitors

HIS HONOUR:

1Mr Ludwig, can you see and hear us?

2OFFENDER:  Yep.

3HIS HONOUR:  Thank you.  I'm sorry to have to bring you back this morning, Mr Ludwig, but there was some difficulties in the announcing of the sentence.  It's no different from that which I intended but I may have expressed myself incorrectly and made the wrong form of order.  No doubt Mr Devolle will be able to explain it all to you appropriately, I won't attempt to do so in case I say something that's misleading, but the sentence I intend to impose is the one I announced on the previous day.  Gentlemen, thank you for your attendance, I understand that in either the terms of the reconnaissance or in the terms of the cumulation and concurrency orders things might have gone a little awry?  Is that the case?

4MR SCHUBERT:  Yes Your Honour, we'd apologise for leading Your Honour astray with the previous materials handed up.

5HIS HONOUR:  Not at all, Mr Schubert.  So what happened and what do we need to do to correct it?

6MR SCHUBERT:  Yes Your Honour, so the commencement dates previously handed up were incorrect in order to give effect to the sentence that Your Honour intended.  I have had occasion to more thoroughly review the cumulation orders that would be required or the commencement orders that would be required to reach a total effective sentence of three years, 11 months.  I can hand up a table setting those out and also the commencement dates of each charge, Your Honour.

7HIS HONOUR:  Thank you, if you can hand that up, and I'll mark that as an exhibit on the sentence.  Mr Devolle you've seen that?

8MR DEVOLLE:  I've seen that, no issue with that Your Honour.

9HIS HONOUR:  Thank you very much.  I think what I'll simply do, as I say, I'll mark that as an exhibit on the plea.  That'll be the next sequential exhibit.

10#EXHIBIT E -    Amendments to cumulation orders and commencement dates.

11So with respect to the sentence I announce, the cumulation orders will be expressed in that way, that is - and the today that is there referred to is the Friday, as of Friday ‑ ‑ ‑

12MR SCHUBERT:  The 9th, Your Honour.

13HIS HONOUR:  The 9 May.  So I think I'll just mark the exhibit, commence from today, Friday - I presume that's the intent?

14MR SCHUBERT:  Yes Your Honour.

15HIS HONOUR:  Friday 9 May 2014.

16MR SCHUBERT:  Yes, this simply being a correction of the sentence Your Honour imposed on that day rather than a back dating.

17HIS HONOUR: Yes, it's a correction pursuant to the relevant provisions of the Criminal Procedure Act. The number of the section escapes me but in any event we do have that power and I think you for that and for that correction. Do I also need to revisit the recognisance order?

18MR SCHUBERT:  Yes Your Honour, that would need to be resigned, I have drafted - I drafted a pro forma reflecting the two years six months to be served with a recognisance of $500 and a head sentence of three years, 11 months.

19HIS HONOUR:  Excellent, thank you very much, if you hand that up I'll sign that and whilst we're doing that I've also signed the s.48 forfeiture orders that have been provided to me and I'll hand them to you.  I'll sign that order.  Mr Ludwig will be able to sign that.  I'll sign and date it today, the 12th of - should I sign it today or sign it 9 May?

20MR SCHUBERT:  Well it's entered in to as part of the sentence, Your Honour, so I would think 9 May was the effective date of entering the recognisance.

21HIS HONOUR:  Yes, I'll sign it 9 May 2014, because of course it's a correction of the order that was signed on that day so it is on an order that operates from that day.

22MR SCHUBERT:  Yes your Honour.

23HIS HONOUR:  All right, does that complete the matters today?

24MR SCHUBERT: Finally, Your Honour, there were two further ancillary orders that were sought, I've emailed a form of wording to your associate. Those two orders were just pursuant to the Firearms Act in relation to an air rifle and an order transferring the indictable charge that couldn't be resolved back to the Magistrates' Court.

25HIS HONOUR:  Do we have those Angela?  Can you print them out here?  We've got the forfeiture order, and I've signed that, it's just - indeed, have a seat Mr Schubert and we'll just get those orders and then I'll sign them.

26MR SCHUBERT:  If I can just indicate, Your Honour, I haven't drafted a formal order, I believe it's sufficient just to be ordered on the court record, if Your Honour is satisfied to do that.

27HIS HONOUR:  Yes, I thought that was something I - yes, thank you.  I understand Mr Devolle this is something in respect of which your client does not object, that is with respect to the forfeiture of that air rifle.

28MR DEVOLLE:  That's correct Your Honour.

29HIS HONOUR: Pursuant to s.151 of the Firearms Act, I understand I have the power to forfeit the Shanghai 61 Category A 177 calibre air rifle seized by the Victorian Police on 19 February 2013, which was in Mr Samuel Ryan Ludwig's possession. He was a prohibited person, being a person serving a term of imprisonment for an indictable offence and as a result the firearm is forfeit to the Crown pursuant to the provision s.151 of the Firearms Act 1996. I make a further order that the charge of - that is that Mr Samuel Ryan Ludwig at Ashburton on Tuesday 19 February 2013, being a non-prohibited person, did possess a Category A long arm air rifle firearm that was not registered contrary to the provisions of s.6A(1) of the Firearms Act 1996 and I order that that charge be remitted to the Magistrates' Court pursuant to s.168 of the Criminal Procedure Act 2009.  

30MR SCHUBERT:  As Your Honour pleases.

31HIS HONOUR:  All right, well thank you both for your attendance and again, Mr Ludwig, I'm sorry that I had to ask you to attend again today and thank you for your attendance.  Mr Devolle will explain all that to you in due course but essentially it puts in place the order that I made on Friday but just corrects some technical aspects but the sentence is as it was announced on Friday.  Thank you for your attendance, we can turn off Mr Ludwig's link.  Thank you again, gentlemen, for making yourselves available today, I thought it was best to correct all that before I went on leave, it's best to do all these things appropriately.

32MR SCHUBERT:  Thank Your Honour.

33MR DEVOLLE:  Thank Your Honour.

34HIS HONOUR:  Thank you again, we can now adjourn.

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