R v Vella - [2001] VSCA 174

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 248 of 2000

THE QUEEN
	v.
NAZARENO VELLA

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2001
DATE OF JUDGMENT:	11 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 174

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Criminal law – Sentencing – Sexual offences – Verdicts of guilty on alternative counts – Sentences imposed for original counts or variant thereof – Sentences as pronounced incorrectly recorded on presentment and quadruplicate – Relevance of conviction on all counts in additional presentment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Ms F.V. McNiff	Sica & Co.

CALLAWAY, J.A.:

I agree with Buchanan, J.A.

BUCHANAN, J.A.:

The appellant is now 71 years of age. He was born in Malta and migrated to Australia in 1950. The appellant left school at the age of 13 years. He is illiterate. The appellant worked on the Melbourne waterfront for 18 years until 1970 when he suffered spinal injuries as a result of an accident at work. He has not worked since the accident. The only activities in which he appears to have engaged in the last thirty years have been fishing and gardening. The appellant married and has four children.

Between October 1974 and March 1983 the appellant indecently assaulted or committed acts of gross indecency with two girls and a boy. None of the children had reached their teens when the offences occurred. The victims were all children of friends of the appellant and his wife, part of a community of Maltese migrants. The friends trusted the appellant with their children. For their part the children treated the appellant as a family friend. They called him “Uncle Jerry”.

The appellant underwent two trials, one concerned with the offences against one of the girls, the other with the offences against the boy. At the conclusion of the second trial the appellant pleaded guilty to a third presentment containing ten counts relating to the second girl.

In the first trial the presentment contained four counts of gross indecency with a girl under the age of 16 years (counts 1, 4, 6 and 7), three counts of indecent assault (counts 2, 3 and 8), one count of taking part in an act of sexual penetration with a child under the age of ten years (count 5) and one count of attempting to take part in an act of sexual penetration with a child under the age of ten years (count 9). The girl was nine years old when the offences occurred.

The evidence led in respect of these counts was as to events that took place in Sunshine where the victim’s family and the appellant were neighbours. According to the girl’s evidence, on an occasion when she was alone with the appellant in his house he touched his penis over his clothing, put his hand under her dress and moved it up to her genital area,…

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 Vella

Details

AGLC: R v Vella [2001] VSCA 174
Case: [2001] VSCA 174
Decision Date: 11 October 2001

CaseChat Overview and Summary

The case of R v Vella involved the defendant, Vella, who was convicted on alternative counts of sexual offences. Vella was brought before the court for sentencing following his convictions. The issue at hand was the correctness of the sentences recorded on the presentment and quadruplicate, as well as the relevance of Vella's convictions on all counts in an additional presentment. The court was tasked with determining whether the sentences as pronounced were accurately reflected in the records and whether the conviction on all counts in the additional presentment held any significance.

The legal issues the court had to address included the accuracy of the sentences recorded on the presentment and quadruplicate, and the impact of Vella's convictions on all counts in the additional presentment. The court needed to consider whether any errors in recording the sentences were material and whether the additional presentment with all counts convicted affected the overall sentencing outcome.

The court examined the sentences as pronounced and found that there were discrepancies between the sentences recorded on the presentment and quadruplicate and those actually pronounced. The court determined that the sentences recorded were incorrect and that the sentences as pronounced should be the definitive records. Regarding the additional presentment, the court concluded that the relevance of Vella's convictions on all counts did not alter the sentencing outcome as long as the sentences pronounced were correctly recorded.

In conclusion, the court ordered that the sentences recorded on the presentment and quadruplicate be amended to reflect the sentences as pronounced. The court held that the additional presentment with all counts convicted did not affect the sentencing as long as the correctly pronounced sentences were accurately recorded. The final orders ensured that the sentencing records were accurate and reflected the court's actual pronouncements.

Orders