R v Nunno & Lunt
[2008] VSCA 31
•29 February 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 296 of 2006 |
| v | |
| VITO NUNNO | |
| THE QUEEN | No. 83 of 2007 |
| v | |
| VITO NUNNO | |
| THE QUEEN | No. 30 of 2007 |
| 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 v Guthrie and Nuttal [2006] VSCA 192, [87].
In respect of the inter-related counts, the factual picture presented to the County Court by the Crown during Nunno’s hearing (which was accepted by Nunno) was in substance put forward again by the Crown during Lunt’s hearing. However Lunt challenged it in certain respects, which will be mentioned in due course. Nevertheless, as I will explain, I consider it appropriate, in fixing a sentence in each case, that this Court have regard to the sentence to be imposed in the other case.
R v Nunno
The following table summarises the 13 counts against Nunno and the sentence passed on each count.[2]
[2]In relation to the property counts, the value of the goods in question has been included where it is ascertainable from the material before the Court.
Count No
Particulars
Sentence
1
Traffick drug of dependence-cannabis-L
2 years
2
Dishonestly handle stolen goods (Hallmark caravan – value $32,000)
2 years (1 year cumulative on count 1)
3
Dishonestly assist in the retention of stolen goods (Future Systems Mascot caravan – value $40,000)
1 year (6 months cumulative on count 1)
4
Cultivate narcotic plant - cannabis-L
1 year 6 months
5
Dishonestly assist in the retention of stolen goods (SS Holden Commodore parts – value of car as a whole $27,000)
9 months
6
Dishonestly assist in the retention of stolen goods (tandem trailer - value $3,800)
9 months
7
Dishonestly assist in the retention of stolen goods (Samsung laptop computer – value $2,898)
9 months
8
Dishonestly assist in the retention of stolen goods (plastic container with tow bar, saw, rope and axe)
3 months
9
Possess drug of dependence – cannabis-L
9 months
10
Dishonestly handle stolen goods (Izumi Power Wrench)
3 months
11
Possess drug of dependence – cannabis-L
9 months
12
Dishonestly handle stolen goods (5 golf clubs)
3 months
13
Dishonestly handle stolen goods (“Kango” jack hammer valued at $1,450 to $1,500 new)
3 months
As the table above indicates, the total effective head sentence was 3 years and six months. The judge set a minimum term of 1 year and 9 months. Seven days were counted as served.
Before this Court, Nunno did not dispute any of the findings of primary fact made by the judge in his case.
Nunno: Appeal against conviction on counts 4 and 11
Count 1 on the presentment alleged that Nunno ‘at Fawkner in the said State between the 20th day of March 2006 and the 10th day of April 2006 trafficked in a drug of dependence namely Cannabis L’. This charge was brought under s 71AC of the Drugs Poisons and Controlled Substances Act 1981. The maximum penalty was 15 years’ imprisonment.
Count 4 alleged that Nunno ‘at Fawkner in the said State on the 10th day of April 2006 cultivated a narcotic plant namely Cannabis L’. This charge was brought under s 72B of the same Act. It also carried a maximum penalty of 15 years.
Count 11 alleged that Nunno ‘at Fawkner in the said State on the 11th day of April 2006 possessed a drug of dependence namely Cannabis L’. The charge in this case was brought under s 73 of the same Act and it carried a maximum penalty of 5 years.
The appellant appeals against his convictions on counts 4 and 11.
The Crown does not suggest that the appellant’s pleas of guilty below stand in his way on this appeal.[3]
[3]See R v Langdon (2004) 11 VR 18, 25 [40].
The evidence established that on 11 April 2006 the police found a ‘growing room’ in the appellant’s premises in Fawkner. It contained signs of a harvested crop of cannabis. Police also found harvested cannabis head weighing approximately 300 grams in a polystyrene box. In a room in the backyard a further amount of cannabis was found ‘hanging’, presumably in the process of drying. The applicant admitted that he had cultivated 3 cannabis plants from which, about a fortnight prior to 11 April 2006, he had harvested about 15 ounces of cannabis. He also admitted that he had exchanged amounts of some of this cannabis with friends in return for quantities of alcohol, taking into account their respective dollar values.
Of the cannabis that remained on 11 April 2006, the appellant intended to use some himself and exchange some with friends as before.
There is an obvious error in the pleading of count 4. The cultivation did not occur ‘on 10 April 2006’. Rather, the cultivation had occurred over a period prior to the harvesting which in turn had taken place about a fortnight before 11 April 2006. However, the respondent told this Court, without challenge from the appellant, that the appropriate factual basis for the cultivation count had been opened to the County Court by the Crown; that the accused had not, and could not have, demurred to it during the plea; and that in those circumstances the date was a mere particular.[4] I would proceed on that basis.
[4]R v Dossi (1918) 13 Cr App Rep 158, 159.
In the appellant’s written outline, it was submitted that the three counts involved ‘overlapping behaviour’ and that ‘the count of trafficking would have covered the entirety of the criminality alleged’.
I do not accept the appellant’s argument. Whether or not the three counts involved ‘overlapping’ behaviour, I do not agree that the count of trafficking would have covered the entirety of the criminality alleged. The elements of the offences were different in each case. There was no count the elements of which were wholly included in any other count. Accordingly, the plea of autrefois convict was not available to bar the conviction on count 4 or the conviction on count 11.[5]
[5]R v Ngo [2007] VSCA 240, [4]. See also Pearce v R (1998) 194 CLR 610, 618; R v Langdon (2004) 11 VR 18, 27; R v Mason [2006] VSCA 55; R v Sessions [1998] 2 VR 304.
Sub-section 51(1) of the Interpretation of Legislation Act 1984 provides:
51. Provisions as to offences under two or more laws
(1)Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
In my view it cannot be said that ‘the same act or omission’ is the foundation of more than one of the counts. As the respondent submitted, looking at the appellant’s offending chronologically, he cultivated cannabis until two weeks prior to 11 April 2006 (count 4); he then trafficked part of the harvested material during the two weeks prior to 11 April 2006 (count 1); and he then possessed the remainder on 11 April 2006 (count 11). The acts the subject of count 4 preceded the acts the subject of count 1. Hence they cannot be the same acts. The possession the subject of count 11 occurred later again.
It is true that the judge proceeded on the basis that some of the cannabis had been cultivated for the purpose of trafficking, and also on the basis that some of the cannabis remaining on 11 April 2006 was in the appellant’s possession for the purpose of trafficking. Higher maximum penalties were found to be applicable accordingly. But, in contrast to the situation in R v Langdon[6] on which the appellant relied, the elevation of the penalties applicable to the cultivation and possession counts was not due to mere statutory deeming as to the appellant’s purpose but rather was due to the appellant’s admissions as to his actual behaviour and intentions.[7] As the appellant admitted to the police, he had engaged in actual cultivation (for the purpose, in part, of trafficking) and then, later, in actual trafficking (as to part of the harvested crop), and then, later again, in actual possession (partly for the purpose of further trafficking and partly for his own use). The appellant’s possession of the remaining cannabis cannot be equated with the possession by the Langdons (in R v Langdon[8]) of the ‘leftovers’ of the stock trafficked by them. Given the appellant’s admissions, the Crown would not have needed to rely on the appellant’s possession of the remaining cannabis to establish his prior trafficking. The appellant’s counsel conceded in argument that he could not point to a case factually on all fours with the present case in which it had been held that a conviction had been inappropriately recorded.
[6](2004) 11 VR 18.
[7]See R v Nor [2005] 11 VR 390, 396 [15]. Compare R v Filipovic; R v Gelevski [2008] VSCA 14, [12]-[15].
[8](2004) 11 VR 18. See 35 [96].
To the extent that the three counts involved what I would call ‘linked’ rather than ‘overlapping’ behaviour, I consider that the same should be reflected in the sentences imposed, rather than in the convictions recorded. I recognise that the very recording of a conviction amounts to punishment[9], but in my view, as a matter of substance and common sense[10], the offending in each case was distinct. I say so notwithstanding that the respondent’s counsel acknowledged that the presentment would probably have been drawn differently for the purposes of a negotiated plea.
[9]Sentencing Act 1991, s 7; R v Sessions [1998] 2 VR 304, 313.
[10]See R v Nor [2005] 11 VR 390, 396 [15], 400 [22].
Consequently I would dismiss the application for leave to appeal against conviction on counts 4 and 11.
Nunno: Appeal against sentence
The County Court judge treated the sentence on count 1 (trafficking) as the base sentence. I agree with the appellant’s counsel that it is apparent from the judge’s reasons and from the sentences imposed that the judge made no attempt to discount the sentences on counts 4 and 11 on account of what I would call the links between the offending in question. I accept also that it is no answer to say that the sentences on counts 4 and 11 were directed to be served concurrently because, for one thing, such an approach may simply mask error. The sentencing discretion may have been exercised differently had proper principle been applied.[11]
[11]Pearce v R (1998) 194 CLR 610, 623-624 [43]-[49].
Further, I agree with the appellant’s submission that the sentence on count 1 should not have been the base sentence. Instead, that role should have been given to the sentence on count 2 (dishonestly handling the Hallmark caravan) which was said by both the prosecutor and defence counsel below to be the most serious offence. I accept that the judge’s use of count 1 (trafficking cannabis) as the base sentence created a distortion ‘whereby the less serious offence takes [or appears to take] an undeserved primacy, whilst the most serious offence … [is or appears to be] diminished’.[12] The ‘Future Systems Mascot’ caravan which was the subject of count 3 was more valuable than the Hallmark caravan, but in Nunno’s case the County Court was told that Lunt alone had taken the active role in the acquisition of that caravan and that Nunno had done no more than acquiesce, after the event, in its remaining at the Heathcote property, albeit that Nunno’s prior conduct had given Lunt every reason to believe that Nunno would so acquiesce. Lunt now says that Nunno was in fact involved in the acquisition, but in Nunno’s case this Court is bound to proceed on the same factual basis as the County Court did.
[12]R v MDB [2003] VSCA 181, [14]; R v JG [2005] VSCA 74, [22].
The respondent expressly conceded that the sentences imposed on counts 1, 4 and 11 were all excessive; and implicitly conceded that the sentence of 9 months’ imprisonment on count 9 (for the possession of the 120 grams of cannabis found in a cupboard in the Hallmark caravan at Heathcote) was also excessive. These concessions were rightly made.[13]
[13]Compare the sentences in R v Garlick (No 2) (2007) 15 VR 388.
In the appellant’s written outline, it is submitted that the sentence on count 2 (the most serious handling offence), the total effective sentence and the non-parole period were all manifestly excessive. Given my finding of other sentencing error, I need not determine whether that submission would have been made out. However I do take into account the matters urged by counsel in this regard in his written submission as well as the matters he relied on in his oral argument generally. Counsel placed particular reliance on an undertaking given by Nunno to give evidence against Lunt.
I note that counsel did not submit either in writing or orally that any of the individual sentences other than for counts 1, 2, 4, 9 and 11 was, in itself, excessive, much less manifestly excessive, save that in his oral submissions he did call for reductions to the sentences on counts 5 and 7 (and 2) on parity grounds.
I have considered the appellant’s prior convictions, the Crown summary, the appellant’s record of interview, the submissions made on the plea below, the judge’s sentencing remarks and the comparison to be made with Lunt’s case. I have concluded that the sentences imposed on Nunno on the cannabis counts should be substantially reduced, as was common ground. However, even those counts are not entirely without significance for sentencing purposes, especially given the appellant’s several prior convictions for cultivation, possession and use of cannabis. Moreover, I consider both counts 2 and 3 to be serious examples of serious offences. The value of the property dishonestly dealt with in each case was high. Further, the nine property counts as a whole indicate a preparedness on the part of the appellant to engage in repeated dishonesty of a seriously anti-social kind. Although the appellant’s prior convictions for dishonesty offences are old and relatively minor, he has shown a repeated disregard for the law generally. He has committed numerous serious driving offences. I note also a conviction for assault with a weapon and another for breach of an intervention order, both said to be offences against his former wife.
The appellant is a man of mature years who had, prior to these events, been sentenced twice to imprisonment by way of intensive correction in the community, and three times to actual imprisonment, as well as to suspended periods of imprisonment. In these circumstances both specific and general deterrence should be given significant weight, in my view.
On the other hand, I accept that the appellant’s undertaking counts strongly in his favour. Lunt had given a ‘no comment’ record of interview and it seems likely that the prospect that Nunno would give evidence for the Crown had much to do with Lunt’s agreement to plead guilty. I accept that the County Court judge undervalued this aspect of the matter a little, although he did refer to it in detail in his sentencing remarks and I think it was reflected to a substantial extent in the total effective head sentence (particularly in the relatively lenient use of cumulation in respect of the stolen property counts) and also in the shorter than usual non-parole period.[14]
[14]Compare Fox and Frieberg, Sentencing, 2nd edition, [3.806]-[3.807].
I accept that Nunno pleaded guilty at an early stage. It is true, also, that without Nunno’s admissions as to the exchange of cannabis for alcohol the Crown would not have had a case of trafficking. Otherwise, however, Nunno was hardly frank or candid in his record of interview, and I can detect little or no sign of true remorse. Although I accept that the appellant has a long established (though now declining) business involving metal polishing and that he is in a relationship with a woman and is on good terms with his four adult children, I consider that the appellant’s prospects of rehabilitation are fair at best.
As to parity, I consider that there were significant differences between Nunno’s case and Lunt’s case (including in relation to their respective roles in the property matters as described to the judges below, their prior convictions, their ages and personal circumstances and the number of offences) such that strict parity principles were and are not applicable. On the other hand, as I will explain further in dealing with Lunt’s case, it seems to me that the respective aggravating and mitigating factors tend to balance each other out such that, as it happens, justice is properly served by imposing equal sentences with equal cumulation on the corresponding[15] stolen goods counts. For similar reasons, I would equalise the proportions in the two cases as between the total effective head sentence and the non-parole period. The unusually low proportion of 50% fixed by the judge in Nunno’s case was presumably due mainly to his undertaking and I think it should be maintained. I would set the same proportion in Lunt’s case by reference to certain considerations relating to him (as I will explain in due course).
[15]As to which of the counts relating to the caravans should be regarded as ‘corresponding’, see below.
Applying the sentencing principles set out in ss 5 and 6 of the Sentencing Act 1991, I would allow the appeal against sentence in Nunno’s case and would re-sentence Nunno as follows:
| Count Number | Particulars | Sentence |
| 1 | Traffick drug of dependence-cannabis-L | 3 months (1 month cumulative on count 2) |
| 2 | Dishonestly handle stolen goods (Hallmark caravan – value $32,000) | 1 year 10 months |
| 3 | Dishonestly assist in the retention of stolen goods (Future Systems Mascot caravan – value $40,000) | 1 year (6 months cumulative on count 2) |
| 4 | Cultivate narcotic plant - cannabis-L | 1 month |
| 5 | Dishonestly assist in the retention of stolen goods (SS Holden Commodore parts – value of car as a whole $27,000) | 4 months |
| 6 | Dishonestly assist in the retention of stolen goods (tandem trailer - value $3,800) | 9 months (3 months cumulative on count 2) |
| 7 | Dishonestly assist in the retention of stolen goods (Samsung laptop computer – value $2,898) | 6 months (1 month cumulative on count 2) |
| 8 | Dishonestly assist in the retention of stolen goods (plastic container with tow bar, saw, rope and axe) | 3 months |
| 9 | Possess drug of dependence – cannabis-L | 1 month |
| 10 | Dishonestly handle stolen goods (Izumi Power Wrench) | 3 months (1 month cumulative on count 2) |
| 11 | Possess drug of dependence – cannabis-L | 1 month |
| 12 | Dishonestly handle stolen goods (5 golf clubs) | 3 months (1 month cumulative on count 2) |
| 13 | Dishonestly handle stolen goods (“Kango” jack hammer valued at $1,450-$1,500 new) | 3 months (1 month cumulative on count 2) |
As indicated in the table above, I would order that 1 month on count 1, 6 months on count 3, 3 months on count 6 and 1 month on each of counts 7, 10, 12 and 13 be served cumulatively on the sentence for count 2. This would produce a total effective sentence of 3 years. I would order that the appellant serve 18 months before becoming eligible for parole. A declaration as to time already served would be required. Otherwise I would confirm the orders made below in Nunno’s case.
Lunt: application for leave to appeal against sentence
As already indicated, I consider that Lunt’s application for leave to appeal against sentence should be granted and the appeal allowed because of my view that the sentence imposed on Nunno should be restructured and reduced.
This makes it unnecessary for me to deal with all of the grounds and submissions advanced by Mr Boyce of counsel on behalf of Lunt. Some of those submissions, however, still need to be addressed.
The table below summarises the 7 counts to which Lunt pleaded guilty and on which he was convicted before the County Court (including the two summary matters numbered as counts 9 and 10) and the sentences imposed respectively.
Count No
Particulars
Sentence
1
Dishonestly handling stolen goods (being a Future Systems Mascot caravan valued at $40,000)
2 years
2
Dishonestly handling stolen goods (being a car manual and number plate surround for a Land Rover Discovery vehicle)
3 months
3
Dishonestly handling stolen goods (being a tandem trailer valued at $3,800)
1 year (3 months cumulative on count 1)
4
Dishonestly handling stolen goods (being Holden SS Commodore components, the value of the car as a whole being $27,000)
6 months (1 month cumulative on count 1)
5
Dishonestly handling stolen goods (being a Samsung laptop computer valued at $2,898)
6 months (1 month cumulative on count 1)
9
Dealing with property reasonably suspected of being the proceeds of crime (being a Honda CR 500 trail bike)
6 months (1 month cumulative on count 1)
10
Dealing with property reasonably suspected of being the proceeds of crime (being a Kawasaki KX 250 trail bike)
6 months (1 month cumulative on count 1)
As the table indicates, the result was a total effective sentence of 2 years and 7 months (ie 31 months) imprisonment. His Honour directed that Lunt serve a minimum of 18 months before being eligible for parole.
Circumstances of the offences
The details of Lunt’s offending are, in some respects, unclear. He was originally charged with a greater number of offences than the seven referred to above. There was no committal in his case. There was a case conference at which Lunt’s representatives indicated that, on certain conditions, he would plead guilty to certain of the original charges but not others. There were subsequent negotiations with the Crown. The negotiations were only concluded very shortly before the matter came before the judge below. Presumably for those reasons, the prosecutor opened the matter in very brief, sketchy terms. A copy of the sentencing remarks in Nunno’s case was provided to the judge without objection. There was no written Crown summary.
The most serious charge against Lunt was count 1, dishonestly handling the Future Systems Mascot caravan. It was not in dispute that the police had located this caravan at the Heathcote property on 10 April 2006; that it had been stolen overnight between 4 and 5 April 2006 from an address in Parkville; that it was valued at $40,000; that it had been attached to a 1996 Land Rover Discovery which was also stolen but never recovered[16]; and that the car manual and number plate surrounds[17] for the Land Rover Discovery were found at the Heathcote property.
[16]Neither the theft nor the handling of the Land Rover itself was the subject of any charge against either Nunno or Lunt.
[17]See count 2 against Lunt.
Consistently with Lunt’s plea of guilty, counsel acting for him below, Mr Guggenheimer, acknowledged that Lunt was involved in the dishonest handling of the caravan. However Mr Guggenheimer emphasised in his plea that Lunt did not accept Nunno’s version of events as summarised and apparently adopted in the judge’s sentencing remarks in Nunno’s case.[18] Nunno had claimed that, although he had previously allowed various stolen items to be sent or taken by Lunt to the Heathcote property and stored there, he had no foreknowledge or forewarning about the caravan in question (the Future Systems Mascot caravan). Indeed in his police statement Nunno claimed that he was annoyed that Lunt had ‘used’ him by causing the caravan to arrive at the property. Thus Nunno had sought to deflect to Lunt most of the moral culpability for the dishonest handling of that caravan.
[18]See paragraph 4 thereof. As already mentioned, the Crown had provided the sentencing remarks in Nunno’s case to the judge hearing Lunt’s plea. Nunno’s version was also included in his record of interview and in his witness statement. These were referred to in part, but not tendered, before the judge hearing Lunt’s plea.
In this regard, by way of background, Mr Guggenheimer told the judge[19] that despite their age differences Nunno and Lunt had had a long and genuine friendship; that the two had genuinely intended to start a legitimate rabbit farming business in partnership at the Heathcote property; that Lunt’s father had been a very bad role model as a result of drug addiction and criminal behaviour whereas Nunno had been somewhat better in that regard in that he was a person with some good qualities who had been a hard worker, albeit that he had been drinking far too much in recent years; that the relationship was a bit like that of Arthur Daley and Terry McCann in the television series ‘Minder’ with Nunno being the ‘driver’ and Lunt the ‘offsider’; and that the acquisition of stolen goods had been a ‘joint enterprise’ between them. Consistently with this background, said Mr Guggenheimer, Lunt had always maintained that the caravan in question had been acquired because Nunno wanted another caravan to add to the two he already had at the property and that Lunt came to know of the caravan’s existence and that he ‘connected the two together and some money was paid and the van arrived and that was his [Lunt’s] function and role in the matter’.[20] Mr Guggenheimer made the reasonable point that Nunno’s protestations of surprise and annoyance were gainsaid by the text message he had sent to his girlfriend: ‘There’s a new caravan on the block. Come around and we’ll break it in.’
[19]Plea transcript, 27.
[20]Plea transcript, 36. See also 26-27.
Before this Court, Mr Boyce complained that the judge below had denied procedural fairness to his client in several respects, including that the judge had rejected or given little or no weight to what Mr Boyce described as Lunt’s ‘explanation’ for the offending in relation to the caravan without indicating to counsel before pronouncing sentence that he was minded to proceed in such a way.
There is some merit in Mr Boyce’s complaint in this regard, but in the end I do not see great significance in it. Lunt’s ‘explanation’ is short on specifics. Moreover, it does not contain any substantial element of excuse or amelioration in relation to the relevant offending. If accepted, it would merely establish that Lunt did not act spontaneously or with a view to enriching himself alone. Rather, his actions would be seen to be part of the ‘joint enterprise’ to which Mr Guggenheimer had referred. Moreover, Lunt’s version of events contains an inherent acknowledgement that Lunt himself took active steps to bring about the acquisition of the caravan. On the other hand, it is true that the judge below did not specifically raise with counsel any doubts about what was put to him in relation to Lunt’s relationship with Nunno or in relation to the acquisition of the caravan (as distinct from the acquisition of some of the other goods in question – see below). Nor did counsel for the Crown below challenge any of Mr Guggenheimer’s assertions. Those assertions were by no means inherently unlikely. Indeed they had the ring of truth. In those circumstances, in Lunt’s case (but not, of course, in Nunno’s case) I consider that this Court should proceed on the basis that the relationship between Nunno and Lunt and the circumstances of the acquisition of the caravan were as described by Mr Guggenheimer.[21]
[21]See R v Storey [1998] 1 VR 359, 371; R v Duong [1998] 4 VR 68, 77-78.
However, Lunt’s dishonest handling of the caravan remains a serious matter. It is still appropriate to regard count 1 as the most serious count, as the judge below did. So far as the comparison with Nunno’s case is concerned, count 2 against Nunno should be regarded as the closest corresponding count, notwithstanding that that count related to a different caravan, being the Hallmark caravan as to which Lunt ultimately faced no charge. Each of count 1 against Lunt and count 2 against Nunno involved a charge under the same statutory provision[22], and each proceeded on the basis that the relevant accused had been actively involved in the acquisition of the relevant caravan. The value of each caravan was high. By contrast, count 3 against Nunno, although specifically related to the Future Systems Mascot caravan, involved a differently worded charge, namely dishonestly assisting in the retention of stolen goods[23], and proceeded on the basis that Nunno had merely been a passive recipient of the caravan.
[22]Section 88 of the Crimes Act 1958 (handling stolen goods).
[23]Albeit brought under the same provision, namely s 88 of the Crimes Act 1958 and, of course, carrying the same penalty.
Count 2 against Lunt related to the dishonest handling of the car manual and number plate surrounds from the Land Rover Discovery, which were located in the Hallmark caravan. Those items themselves were of minimal value. Apart from Lunt’s ‘explanation’ to which I have already referred, nothing in particular was said below or before this Court by either party as to how they came to be at the property (and in the Hallmark caravan).
As to Count 3, the prosecutor below told the judge that there had been found in some bush at the rear of the property a tandem trailer which belonged to a trailer hire company and which had been stolen from a service station in High Street, Preston on 4 March 2006. The registration label plate and serial number had been removed from the trailer. The trailer was valued at $3,800[24]. The sentencing remarks in Nunno’s case had included the observations that Nunno was ‘aware’ that the trailer was on the property and that Nunno had claimed that it had been ‘stolen by Lunt’. However Mr Guggenheimer told the judge below that Lunt ‘became aware of the existence of a stolen trailer and it was brought [sic] and it was delivered up there and dumped on the block’.[25] Again, this ‘explanation’ was short on specifics. Although Mr Guggenheimer had referred to this count as a ‘non‑contentious’ count, on appeal Mr Boyce complained, once again, that the judge below had unfairly discounted Lunt’s ‘explanation’ without warning. It is true that his Honour did say in his sentencing remarks[26]:
I must say, I have considerable reservations about the explanations that have been provided.
However, having regard to the relevant context, I am not at all sure that his Honour intended to include count 3 in this observation. Nevertheless, for reasons equivalent to those expressed above in relation to Count 1, I am prepared to proceed on the basis (in Lunt’s case) that the circumstances were as Mr Guggenheimer described them, and, in particular, on the basis that the trailer was acquired by Lunt with Nunno’s assent for the joint purposes of Nunno and Lunt, ie as part of their ‘joint enterprise’.
[24]This was evident from the sentencing remarks in Nunno’s case in relation to Count 6 against Nunno.
[25]Plea transcript, 24.
[26]Para 4.
I turn to count 4, the handling of the stolen Commodore components. The prosecutor told the judge below that a boot lid, four doors and a large number of interior components were located in a shed at the property. These car parts were from a Commodore stolen on 5 September 2005 from Lalor. No valuation was available for the car parts as such. However the sentencing remarks in Nunno’s case indicated that the original value of the car stolen was $27,000 and that Nunno had claimed that Lunt had brought the stolen parts to the property for storage purposes, which Nunno had knowingly allowed.
Once again, Mr Guggenheimer described this as a ‘non-contentious’ count. He acknowledged that Lunt had taken the parts to the property for his own purposes. Lunt was driving a Holden Commodore at the time and believed that he might use the parts for that car in the future.
Mr Guggenheimer went on to say that Lunt’s instructions were that the parts had been dumped outside the gates of a scrap metal yard next door to Lunt’s flat after hours; that such dumping was a regular occurrence; that Lunt knew that the car parts, having been dumped, were probably stolen; but that, normally, dumped items were simply taken inside the yard the next morning and trashed with all the other equipment there. Mr Guggenheimer was not pulled up by the judge or by the prosecutor in relation to this version of events. However, in his sentencing remarks[27], the judge said:
You have provided an explanation which I do not accept in respect of those components.
[27]At para 4.
Again, I consider that this Court should proceed on the basis that Lunt’s version of events in relation to the car parts is true. It remains the case, however, that Lunt dishonestly handled the car parts. If the proprietors of the scrap metal yard were in the habit of appropriating to themselves dumped stolen car parts, they themselves would have been guilty of offences to the extent that they shared Lunt’s knowledge or belief that such parts were stolen. Lunt’s moral culpability is only marginally reduced by the acceptance of his ‘explanation’ in relation to the car parts.
There is no dispute about count 5. Mr Guggenheimer told the judge below that Lunt took full responsibility for acquiring the laptop, worth $2,898, for his own use, knowing (from the price he paid for it) that it was stolen.
Counts 9 and 10 involved summary matters under s 195 of the Crimes Act 1958 that were included in the plea before the County Court by consent. Section 195 provides:
A person who deals with property if there are reasonable grounds to suspect that the property is the proceeds of crime is guilty of an offence and liable to level 7 imprisonment (2 years maximum).
In both cases, the property in question was a motor bike. There is no material about their value.
Mr Guggenheimer said that Lunt had pleaded guilty to counts 9 and 10 as part of a global settlement, in the following circumstances. The motor bikes had been found on the property, where much stolen property was located. So the police had a reasonable suspicion that the bikes were stolen. Mr Lunt claimed to have acquired the bikes two or three years earlier from a Turkish man who, Lunt knew, was going back overseas. As far as Lunt knew, the bikes ‘were bought through the Trading Post’ but he had no receipts nor anything else to rebut the reasonable suspicion. So, as part of the settlement, he had pleaded guilty to these charges.
At that point in the plea, the following exchange occurred:
His Honour: He’s got his own evidence, but he has pleaded guilty to these offences.
Mr Guggenheimer: Well, on that basis, Your Honour. On that basis. There’s been a global –––
His Honour: What you assert would amount to a defence arguably anyway.
Mr Guggenheimer: Those are my instructions and the matter has been settled globally in terms of the circumstances. That’s all I can really say about that, Your Honour, but what I can say, and my friend will contradict me if I am wrong, but there doesn’t seem to be any evidence [to indicate that the motor bikes were stolen property].
In my view, his Honour’s intervention at this point gave ample warning to counsel that his Honour might not accept the explanation about the motor bikes without evidence from Lunt. There was no breach of procedural fairness in this regard. At least in relation to the motor bikes, his Honour was entitled to say in his sentencing remarks, as he did, that he had ‘considerable reservations’ about the explanations provided. I would disregard counsel’s ‘explanation’ in relation to the motor bikes and simply proceed on the basis that Lunt was guilty of two offences under s 195 of the Crimes Act 1958, with no more detail than that he was in possession of two motor bikes as to which there were reasonable grounds to suspect that they were the proceeds of crime.[28]
[28]The test of ‘reasonable grounds to suspect’ is wholly objective: see Director of Public Prosecutions v Pastras (2005) 11 VR 449, [1] (footnote 1) and [23]; Director of Public Prosecutions v Marell (2005) 12 VR 581, [35]-[38].
Lunt: other relevant matters
The maximum penalty for each count of dishonestly handling stolen goods is 15 years’ imprisonment.[29] The maximum for dealing with property as to which there are reasonable grounds to suspect that the property is the proceeds of crime is 2 years’ imprisonment.[30]
[29]Crimes Act 1958 s 88.
[30]Crimes Act 1958 s 195.
Mr Boyce mainly relied on the plea made below. Most of factual material to which I will refer comes from that source.
Lunt was born on 15 March 1980. So he was 26 years old at the time of the offences. His relative youth counts in his favour.
So also does the fact that he had a very disturbed and difficult upbringing. Lunt’s parents both suffered from severe long standing heroin addictions and both received multiple prison sentences over the years. When Lunt was 13 years of age, both his father and his mother were sent to prison for periods in excess of 2 years. Lunt escaped being made a ward of the State only because he was able to live with his older sister, Chelsea (who was then 18 years old), until his parents were released. Unfortunately Chelsea suffers from a degenerative illness, Prader-Willi syndrome, as a result of which she was going blind at the time of the plea. Lunt’s father, Tony, gave evidence before the judge below confirming that he and Lunt’s mother, Julie, had largely been absent in Lunt’s life as he was growing up, due to their drug addiction and problems with the law. Lunt’s relationship with his father is now improved, but his mother still has serious drug problems.
As a teenager, Lunt lived in the family home in Northcote. He obtained a special dispensation to leave school after completing Form 1 at the age of 13 when his parents went to gaol. On the other hand he is literate and reads quite well, due mainly to the fact that a friend of the family who was a school teacher put considerable effort into teaching Lunt to read and write. He has quite a good capacity for electronic and mechanical knowledge and skill.
In about 1993, while still only 13 years old, Lunt began a relationship with a young woman named Kathleen Pearce. That relationship continued until late 2005. There is a child of the relationship, Jamie, who was 3 years old in February 2007 at the time of the plea. At that time Jamie was living with Kathleen, but Lunt was seeing him 4 or 5 times per week.
No medical or psychological evidence was called on Lunt’s behalf, either below or before this Court. His counsel told the judge below that from a young age Lunt had smoked cannabis on a regular basis, but that, having observed his parents’ problems with heroin, he had always kept away from intravenous drugs. However, in 2005 Lunt began to smoke methylamphetamine (or ‘ice’). As a result, counsel said, Lunt had become paranoid, angry, distrustful and, in Lunt’s own reported words, had started to suffer ‘some form of psychosis’.[31] This had led to very erratic behaviour whereby his partner Kathleen Pearce had rejected him and the relationship. In about March 2006 they were evicted from the housing they had previously occupied. Lunt then organised for a shipping container to be sent to the Heathcote property to store goods in.
[31]Plea transcript, 17.
Mr Guggenheimer asked the judge below to accept that Lunt’s judgment was significantly disturbed by the amphetamine use and that this explained in large part the offending in question, which was more serious than his prior offending. Counsel submitted that, given Lunt’s background, his prior offending was not as bad as it might have been. Counsel went through the further presentment giving various explanations for the matters listed, which included convictions for trafficking cannabis and handling stolen goods, possession of a controlled weapon, driving while disqualified, aggravated cruelty to animals, using an unregistered vehicle, possession of property or money suspected of being the proceeds of crime and possession of ammunition without a licence.
Mr Guggenheimer pointed out that Lunt had never breached any rehabilitation order or failed to appear in court. He also pointed out that, despite Lunt’s difficult circumstances, he had not engaged in offending that had led to a period of actual incarceration up until that time.
However I agree with the judge below that Lunt’s prior criminal history counts against him significantly for present purposes. He has 6 prior convictions for handling stolen goods and 3 for possession of property or money suspected to be the proceeds of crime. All of these convictions were incurred at a time prior to the applicant commencing to use methylamphetamine. There is no real suggestion, much less any expert evidence, that the applicant is, or was at the relevant time, seriously addicted to ‘ice’ (or even to cannabis).[32] Mr Guggenheimer conveyed to the judge below the applicant’s instructions that he had not used ‘ice’ for 8-10 months, but then counsel frankly disclosed that the applicant had been picked up in June 2006 driving a car in which amphetamines and a pistol were located; and that he had been charged with possession of both. Before this Court, Mr Boyce indicated that the applicant had been screened for drugs while in prison in June and October 2007 and been cleared. Apart from the applicant’s reported self-description, there was no real indication that he was suffering from any kind of mental disorder. No reliance was placed on the line of authority culminating in R v Verdins.[33] The suggestion that the use of ‘ice’ played a part in the relevant offending is not supported by any expert evidence. Even if it were, the present might well be a case where the taking of drugs would be regarded as an aggravating factor, not a mitigating factor.[34]
[32]As the judge below noted, the applicant, like many others of his age, had had a cannabis ‘habit’ over ‘most’ of the years, but had apparently coped with it reasonably well. (Reasons [12]).
[33](2007) 16 VR 269.
[34]R v Hay [2007] VSCA 147, [33]; Director of Public Prosecutions v Smeaton [2007] VSCA 256, [14].
The applicant has not demonstrated significant remorse for his offending. He made a ‘no comment’ record of interview. On the other hand, he pleaded guilty relatively early, to a negotiated presentment, thereby saving the cost and trouble of a committal and sparing Nunno the ordeal of giving evidence.
Before the judge below, counsel emphasised that the applicant was at a crossroads in his life. He was only 26 years old and was an intelligent young man with capacities and skills. However, he faced the very real prospect of going down the same path as his parents, whereby he would become an absent or distant figure in the life of his own young son, Jamie. Kathleen Pearce had a new partner, Ricky. Jamie had started to call him ‘Daddy Ricky’. The applicant was at real risk of being replaced in Jamie’s life, and he found that extremely distressing, much more so than the prospect of the gaol experience itself. Further, Mr Boyce told this Court that the plight of the applicant’s sister, Chelsea, is now significantly worse and that she will soon be totally blind; and that the applicant’s concern for his sister’s welfare was impacting on the applicant in prison. Mr Boyce also said that the applicant has a new partner who has a child of her own; that the three of them were effectively a family unit; and that she was suffering from a hernia as well as other pains and headaches and was finding it difficult to get by without the applicant’s assistance.
I accept those matters. However, as Mr Boyce conceded, they do not, either individually or cumulatively, amount to ‘exceptional circumstances’ sufficient in themselves to require that the applicant be absolved from incarceration.[35] On the other hand, I would accept that, in combination, they do call for a certain degree of mercy.[36]
[35]See R v Panuccio, unreported, Court of Appeal, 4 May 1998, BC9801713.
[36]Compare R v Nagul [2007] VSCA 8, [44]; R v Jaross [2007] VSCA 68, [14]-[18]; R v Lane [2007] VSCA 222, [19].
I would also accept that, taking into account the applicant’s extremely difficult background, his relative youth, his talents and his present familial attachments, there is reason to hope that he may prove to be a good candidate for the rehabilitative objectives of the parole system. Mainly for that reason, I would be prepared to set a shorter than usual non-parole period.[37]
[37]Compare R v Detenamo [2007] VSCA 160, [23]-[28].
Future executive action
It is appropriate to say something about ground 5 of the grounds of the application for leave to appeal. That ground was as follows:
The learned sentencing judge erred by having regard to the possibility of future executive action, namely, future action carried out by the parole board.
It had been expressly acknowledged by Mr Guggenheimer below that a period of actual incarceration for these offences was a ‘high probability’ if not ‘inevitable’.[38] Mr Guggenheimer went on to submit that his Honour might impose ‘a significant suspended sentence with some part to serve or otherwise some part suspended which in a useful sense would keep him under the supervision of the court’.[39] His Honour’s response in his sentencing remarks was as follows[40]:
I believe that in the circumstances a period of parole is likely to be more beneficial to you than a period with a suspended sentence hanging over your head.
[38]Plea transcript, 78.
[39]Plea transcript, 41.
[40]Para [19].
Mr Boyce submitted that this reasoning infringed s 5(2AA)(a) of the Sentencing Act 1991 which enjoins a sentencing judge from having regard to
any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.
In this regard, Mr Boyce relied on R v Piacentino; R v Ahmad.[41]
[41][2007] VSCA 49.
Mr Boyce submitted that, while the judge’s approach was readily understandable and might well be thought more advantageous to the applicant than the alternative of a partially suspended sentence, it was precluded by s 5(2AA)(a). According to Mr Boyce’s written submissions, in order to adjudge that a period of parole would be more conducive to the applicant’s rehabilitation than a suspended sentence, ‘one must first countenance the virtual certainty that the applicant would be placed under the auspices of the Parole Board in the first place. Yet for this circumstance to arise, the Parole Board must first have determined to release the applicant on parole. However the judge is precluded from even considering the possibility of such release’.
Mr Boyce appeared to submit that this Court, in re-exercising the sentencing discretion in this case, would likewise be prevented from reasoning as the judge below had done.
In my opinion, this submission misconceives the effect of s 5(2AA)(a) and of Piacentino. Relevantly, the provision merely requires the sentencing judge to proceed on the basis that the prisoner may be required to serve every day of the head sentence in actual confinement in prison.[42] However it does not preclude the judge from adopting and acting on the view that imposing a head sentence of imprisonment with a specified non-parole period would be a more appropriate disposition than imposing a suspended sentence in a particular case, as long as the court sets a head sentence that would remain appropriate whether or not the prisoner is ultimately released on parole: see R v PJB[43]. Otherwise the statutory provisions imposing an obligation on the courts to consider setting, or to set, a non-parole period would be sterilised. The extensive judicial learning on the principles applicable to that exercise would all be in vain.[44] Nothing in R v Piacentino requires such a result. Piacentino merely confirms that, for the purposes of the totality principle, a sentencing court may not speculate about the decision which may in the future be made by the Parole Board in respect of an offender whose offence constitutes a breach of parole conditions. Piacentino does not impact on a sentencing court’s capacity to consider the extent to which an offender might be a suitable candidate for the parole system (having regard to his or her antecedents and prospects for rehabilitation or other relevant matters)[45] as compared with an alternative disposition such as a suspended sentence.
[42]R v Yates [1985] VR 41, 46; Fox and Frieberg, Sentencing, 2nd edition, 1999 [9.908].
[43][2007] VSCA 242, [12]-[14].
[44]See, eg, Power v R (1974) 131 CLR 623, 629; R v VZ (1998) 7 VR 693, 696-699; R v Detenamo [2007] VSCA 160, [23]-[28].
[45]See R v Bruce [1971] VR 656, 657. See also the cases cited in the previous footnote.
Comparison with co-offender
Mr Boyce submitted that in various respects the sentence imposed by the judge below was too severe in comparison with the sentence imposed on Nunno. There is no need for me to go into the details of that submission. As mentioned above, I consider that the differences between the circumstances of Lunt and Nunno tend to cancel each other out so far as the corresponding counts are concerned. I would equalise their penalties on those counts and I would set a non-parole period of 50% of the total effective head sentence in each case.
Lunt: disposition
This is a case in which just punishment, denunciation, general and specific deterrence, community protection and rehabilitation all have a part to play. In all the circumstances I would grant the application for leave to appeal by Lunt, allow his appeal and re-sentence him as follows:
Count No
Particulars
Sentence
1
Dishonestly handling stolen goods (being a Future Systems Mascot caravan valued at $40,000)
1 year 10 months
2
Dishonestly handling stolen goods (being a car manual and number plate surround for a Land Rover Discovery vehicle)
1 month
3
Dishonestly handling stolen goods (being a tandem trailer valued at $3,800)
9 months (3 months cumulative on count 1)
4
Dishonestly handling stolen goods (being Holden SS Commodore components, the value of the car as a whole being $27,000)
4 months
5
Dishonestly handling stolen goods (being a Samsung laptop computer valued at $2,898)
6 months (1 month cumulative on count 1)
9
Dealing with property reasonably suspected of being the proceeds of crime (being a Honda CR 500 trail bike)
4 months (1 month cumulative on count 1)
10
Dealing with property reasonably suspected of being the proceeds of crime (being a Kawasaki KX 250 trail bike)
4 months (1 month cumulative on count 1)
The result would be a total effective sentence of 2 years and 4 months (ie 28 months’) imprisonment. I would direct that Lunt serve a minimum of 14 months before being eligible for parole. A declaration as to time served would be required. I would confirm the disposal orders made below.
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