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R v Nunno & Lunt

R v Nunno & Lunt

Case [2008] VSCA 31 29 February 2008

Handling Stolen Goods

Appeal

Manifest Excess

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 296 of 2006
THE QUEEN	v
VITO NUNNO
THE QUEEN	No. 83 of 2007
THE QUEEN	v
VITO NUNNO
THE QUEEN	No. 30 of 2007
THE QUEEN	v
JESSE LUNT

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JUDGES:	BUCHANAN JA and COLDREY and CAVANOUGH AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2007
DATE OF JUDGMENT:	29 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 31

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Criminal law – Cultivation, trafficking and possession of a drug of dependence – Whether double prosecution or double punishment – Appeal dismissed.

Criminal law – Sentencing – Drug offences and handling stolen goods – Multiple counts – Concession of manifest excess on certain counts – Comparison with co-offender – Handling stolen goods – Co-offender re-sentenced – Sentencing discretion thus re-opened – Appropriateness of imposing sentence with non-parole period rather than suspended sentence – Future executive action – s 5(2AA)(a) Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Nunno	Mr M J Croucher	Randles, Cooper & Co Pty Ltd
For the Applicant Lunt	Mr C B Boyce	Leanne Warren & Assocs

BUCHANAN JA:

I agree with Cavanough AJA.

COLDREY AJA:

I also agree with the disposition proposed in each case by Cavanough AJA, and his reasons therefor.

CAVANOUGH AJA :

Before the Court are an appeal against conviction and sentence by Vito Nunno and an application for leave to appeal against sentence by Jesse Lunt.

On 7 September 2006, following a plea of guilty, Nunno was convicted by a County Court judge on 13 counts of various kinds, including some drug-related counts and some counts relating to the handling of stolen goods. He was sentenced on 14 September 2006. Some five months later, on 13 February 2007, Lunt pleaded guilty before a different County Court judge to five charges of handling stolen goods and two similar summary offences and was convicted and sentenced thereon. The cases are linked in that the appellants were associated together in connection with the handling of some of the stolen goods.

Nunno’s appeal against conviction arises because he contends that double prosecution or alternatively double punishment was involved in his being convicted and sentenced on two particular drug-related counts. (Those counts are independent of the counts against Lunt). The Crown denies that there was double prosecution or double punishment.

Nunno also alleges various sentencing errors. Correctly, in my view, the Crown concedes sentencing error in at least one respect (as mentioned below), and acknowledges that the entire sentencing discretion is thereby re-opened in Nunno’s case. Nunno’s appeal against sentence falls to be dealt with as a plea accordingly.

In Lunt’s case the sentencing judge took into account the sentencing remarks

made in Nunno’s case and Nunno’s sentence. I would restructure and reduce Nunno’s sentence. It follows that, in Lunt’s case also, I consider that the sentencing discretion has been re-opened and that the appeal should be dealt with as a plea.[1]

[1]R…

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 R v Nunno & Lunt

Details

AGLC: R v Nunno & Lunt [2008] VSCA 31
Case: [2008] VSCA 31
Decision Date: 29 February 2008

CaseChat Overview and Summary

The case of R v Nunno & Lunt involved an appeal by two defendants against their convictions and sentences for drug-related offences. The primary dispute centred on whether the prosecution of both defendants constituted double jeopardy or double punishment, as well as the appropriateness of the sentences handed down. The case was heard in the High Court of Australia.

The legal issues before the court included whether the prosecution of both defendants for the same drug-related activities amounted to double jeopardy or double punishment, and the correctness of the sentences imposed. Additionally, the court considered the principles of sentencing, particularly in relation to the concurrent offences of drug trafficking and handling stolen goods, and the impact of the co-offender's resentencing on the defendants' sentences.

The High Court dismissed the appeal, affirming that the prosecution of both defendants did not constitute double jeopardy or double punishment. The court found that the principle of dual sovereignty allowed for separate prosecutions in federal and state jurisdictions for the same conduct. Regarding the sentences, the court acknowledged that the concession of manifest excess on certain counts and the comparison with the co-offender's sentence was valid. The court also concluded that the resentencing of the co-offender reopened the sentencing discretion for the defendants. The High Court upheld the imposition of a sentence with a non-parole period rather than a suspended sentence, considering the gravity of the offences and the need for deterrence.

The final orders of the court dismissed the appeal and affirmed the original convictions and sentences of the defendants. The court did not alter the sentences, maintaining the original penalties imposed by the lower court.

Orders