R v Ulla - [2004] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.223 of 2003

THE QUEEN
	v.
ANTHONY ULLA

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2004
DATE OF JUDGMENT:	5 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 130

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Criminal law – Sentencing - Armed robbery – Handling stolen goods – Attempt to obtain property by deception - Procedural fairness – Sentencing judge referring in sentencing remarks to earlier remarks of sentencing judges and to evidence from three previous appearances – Parties not aware of content of that material or of judge’s intention to refer to it – Sentences quashed – Re-sentencing – Youthful offender – Intellectual disability – Large number of prior convictions for relevant offences – Appellant on parole at time of offences – Appellant in protective custody – Crimes Act 1958, ss. 75A(1), 88(1), 321M - Sentencing Act 1991, s.16(3B).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. D. Dann	Michael Gleeson & Co.

BATT, J.A.:

I agree that, for the reasons given by Eames, J.A., this appeal must be allowed and the appellant re-sentenced. When allowance is made for the operation of s.16(3B) of the Sentencing Act 1991 in the light of the now known cancellation of the appellant’s parole order as well as for the other considerations discussed by Eames, J.A., I also agree that the appellant should be re-sentenced as proposed by his Honour.

VINCENT, J.A.:

I agree that this appeal should be allowed and that the appellant be re-sentenced as proposed by Eames, J.A. I do so for the reasons advanced by Eames, J.A. in his judgment.

EAMES, J.A.:

This is an appeal against sentence brought pursuant to leave granted by a judge of the Court on 16 April 2004. On 30 July 2003 the appellant pleaded guilty in the County Court and was sentenced as follows:

Count 1:Handling stolen goods, contrary to s.88(1) of the Crimes Act 1958, which carried a maximum sentence of 15 years’ imprisonment. The appellant was sentenced to two years’ imprisonment;
Counts 2 & 3: Armed robbery, contrary to s.75A(1), which carried a maximum penalty of 25 years’ imprisonment. The appellant was sentenced to four years’ imprisonment on each count;
Count 4:Attempt to obtain property by deception contrary to s.321M, which carried a maximum of five years’ imprisonment. The appellant was sentenced to one year’s imprisonment.

The learned sentencing judge ordered that one year of the sentence on count 1, two years of the sentence on count 3 and three months of the sentence on count 4 were to be served cumulatively upon the sentence imposed on count 2. That produced a total effective sentence of seven years and three months. His Honour fixed a non-parole period of five years and declared that the appellant had spent 260 days in custody. His Honour further ordered that the period of imprisonment was to be served cumulatively upon any period of imprisonment…

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 Ulla

Details

AGLC: R v Ulla [2004] VSCA 130
Case: [2004] VSCA 130
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the case of R v Ulla, the appellant was convicted of armed robbery, handling stolen goods, and attempting to obtain property by deception. The appellant, who had a significant history of criminal activity and intellectual disability, was sentenced in the Supreme Court of Victoria. The appellant's legal team contested the sentencing on the basis of procedural fairness, arguing that the sentencing judge had referred to material from previous hearings without providing the parties with prior notice, which was not in line with the principles of procedural fairness.

The legal issues before the court were whether the sentencing judge's references to material from previous hearings and evidence from three prior appearances constituted a breach of procedural fairness, and if so, whether this warranted the quashing of the sentences and a re-sentencing hearing. The court had to consider the appellant's intellectual disability, the number of prior convictions, and the fact that the appellant was on parole at the time of the offences. The court also needed to determine whether the appellant's placement in protective custody during sentencing should be considered in the re-sentencing process.

The court found that the sentencing judge's references to material from previous hearings and evidence from prior appearances did indeed constitute a breach of procedural fairness. The court emphasised that it is critical for both parties to be aware of the content of such material and the judge's intention to refer to it to ensure a fair sentencing process. Consequently, the sentences were quashed, and a re-sentencing hearing was ordered. In reaching this decision, the court took into account the appellant's intellectual disability, the large number of prior convictions for similar offences, and the appellant's status as a parolee at the time of the offences. The court also considered the appellant's placement in protective custody during sentencing, which was to be factored into the re-sentencing.

Orders