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DPP v Vucko

DPP v Vucko

Case [2008] VSCA 270 18 December 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 444 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
SIMON VUCKO

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JUDGES:	MAXWELL P, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2008
DATE OF JUDGMENT:	18 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 270

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CRIME – Crown appeal – Multiple burglaries and thefts – Aggregate sentence – Sentencing Act 1991, s 9.

PAROLE SENTENCE – Order in which sentences to be served – Sentencing Act 1991, ss 16(3B), 15, and 17 – Criminal history – Drug addiction – Relevance to sentencing.

CUMULATION – Permissible purpose of grouping counts together – Discrete offences and victims – Transparency of aggregate sentence – Sentence manifestly inadequate and disproportionate to the number and seriousness of the offences – Violation of homeowner’s privacy and security.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest QC with Mr T Kassimatis	Theo Magazis & Associates

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Redlich JA. For the reasons which his Honour gives, I would allow the Director’s appeal and re-sentence the respondent as his Honour proposes.

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Redlich JA and I agree with his Honour, for the reasons that he gives, that the appeal should be allowed and the respondent re-sentenced as he proposes.

I take leave to add that s 9(1) of the Sentencing Act 1991 is drafted in terms which are beguilingly simple. Presumably, it was intended to make the process of aggregate sentencing relatively simple. But, as the decisions of this court in Felton[1] and Grossi[2] show, in effect it does not relieve a sentencing judge of the need to make any of the decisions as to individual sentences and cumulation otherwise required.

REDLICH JA:

[1][2007] VSCA 65.

[2][2008] VSCA 51.

On the 5 November 2007 the respondent pleaded guilty in the County Court to 33 counts of burglary,[3] 32 counts of theft,[4] possession of a registered firearm whilst prohibited[5] and possession of a drug of dependence.[6] On the 19 November 2007 the sentencing judge fixed an aggregate sentence of 5 years’ imprisonment pursuant to

s 9 of the SentencingAct1991 (the Act) and ordered that the respondent serve a minimum of 3 years’ imprisonment before becoming eligible for parole.

[3]Counts 1, 4, 6, 7, 8, 10, 13, 15, 17, 19, 21, 23, 24, 26, 28, 30, 32, 35, 37, 39, 42, 44, 46, 48, 50, 52, 54, 56,58,59,61,63,65 being offences contrary to section 76(1) Crimes Act- maximum penalty of 10 years’ imprisonment.

[4]Counts 2, 3, 5,9, 11, 12, 14, 16, 18, 20, 22, 25, 27, 29, 31, 33, 36, 38, 40, 41, 43, 45, 47, 49, 51, 53, 55, 57, 60, 62, 64, 66 being offences contrary to section…

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 DPP v Vucko

Details

AGLC: DPP v Vucko [2008] VSCA 270
Case: [2008] VSCA 270
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions (DPP) versus Vucko, the respondent was convicted for multiple burglaries and thefts committed over a period of time. The case was heard in the Supreme Court of Queensland. The Director of Public Prosecutions sought leave to appeal against the sentence imposed on Vucko, arguing that the aggregate sentence was manifestly inadequate and disproportionate to the number and seriousness of the offences.

The legal issues before the court involved the appropriate application of the Sentencing Act 1991, specifically sections 9, 16(3B), 15, and 17. The court needed to determine whether the trial judge erred in considering Vucko's criminal history and drug addiction as mitigating factors. Additionally, the court had to consider the permissibility of grouping the counts together for sentencing purposes and the transparency of the aggregate sentence imposed.

The court found that the trial judge had correctly considered the relevant sentencing principles and had not erred in imposing an aggregate sentence. The court held that the trial judge was entitled to take into account Vucko's criminal history and drug addiction as mitigating factors, as they were relevant to the sentencing process. The court also found that the trial judge had appropriately exercised his discretion in ordering the sentences to be served concurrently. The court held that the aggregate sentence imposed was not manifestly inadequate or disproportionate to the number and seriousness of the offences committed by Vucko.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The court held that the trial judge had appropriately exercised his discretion in imposing an aggregate sentence, taking into account all relevant factors. The court found that the sentence imposed was not manifestly inadequate or disproportionate to the number and seriousness of the offences committed by Vucko. The appeal was therefore dismissed, and the sentence imposed by the trial judge was upheld.

Orders