R v Vellinos - [2001] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 398 of 2000

THE QUEEN
	v.
CHRISTOS VELLINOS

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JUDGES:	WINNEKE, P., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	BENDIGO
DATE OF HEARING:	15 August 2001
DATE OF JUDGMENT:	15 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 131

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Criminal law - Sentencing - Appellant engaging in purchase and sale of tobacco products in fraud of the revenue - Orders for forfeiture and pecuniary penalties made against appellant - Whether sentence of 3 years with release after 21 months excessive - Whether judge in error in failing to regard charges under the Excise Act (Cth) as appropriate method of proceeding against appellant -
R. v. Liang & Li (1995) 82 A.Crim.R.39 referred to - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Barry	Solicitor to Commonwealth DPP
For the Appellant	Mr G.J. Lyon	C. & H. Lawyers

WINNEKE, P.:

On 30 November 2000, the appellant pleaded guilty in the County Court to an indictment alleging that between 1 June 1998 and 8 June 1999 he defrauded the Commonwealth, contrary to s.29D of the Crimes Act 1914 (Cth) by manufacturing and distributing tobacco so as to preclude payment of excise duty otherwise due. The maximum penalty at the relevant time was fixed at 10 years' imprisonment. Following a plea in mitigation of penalty, his Honour, on 8 December 2000, sentenced the appellant to three years' imprisonment and ordered that the appellant be released on a recognisance release order after serving 21 months of that term. His Honour also made, with the consent of the appellant, forfeiture of property orders and pecuniary penalty orders under the Proceeds of Crimes Act 1987 (Cth). Pursuant to leave, the appellant has appealed against his Honour's sentence upon a number of grounds, to which I shall return.

The appellant, who was 48 years old at the time of sentence and who had no previous convictions, was alleged to have engaged in the systematic defrauding of the revenue over a 12-month period by purchasing tobacco from growers and either on-selling it in bulk to customers in various States or cutting and processing it and selling it in its processed form. The manufacture and sale of tobacco is strictly regulated by Commonwealth legislation and is subject to payment of an excise duty under the Excise Act (Cth). For the purpose of sentencing, it was agreed that the duty evaded as a result of the appellant's fraud exceeded the sum of half a million dollars. Although his Honour was sceptical that this amount adequately reflected the gravity or extent of the fraud perpetrated by the appellant, he nevertheless stressed that for the purpose of imposing penalty he was bound by that agreed sum.

The appellant had first come under the notice of the revenue authorities in July 1998 when a vehicle which he was driving had been intercepted fortuitously on a country road with some amounts of tobacco in the boot. Thus commenced a protracted surveillance of…

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 Vellinos

Details

AGLC: R v Vellinos [2001] VSCA 131
Case: [2001] VSCA 131
Decision Date: 15 August 2001

CaseChat Overview and Summary

In the case of R v Vellinos, the appellant was found guilty of engaging in the purchase and sale of tobacco products in a manner that defrauded the revenue. The matter was brought before the court for a determination of the appropriate sentence and the legality of the orders made for forfeiture and pecuniary penalties against the appellant. The central legal issues revolved around whether the sentence imposed by the court was excessively harsh and whether the judge erred in choosing the Excise Act as the method of proceeding against the appellant.

The court considered the principle established in R. v. Liang & Li (1995) 82 A.Crim.R.39, which provides a framework for assessing the proportionality of sentences in criminal cases. The judge carefully examined the facts and circumstances of the appellant's criminal conduct, including the extent of the fraud and the appellant's criminal history. The court found that the sentence of three years, with release after 21 months, was not manifestly excessive when considering the severity of the offence and the need for deterrence and retribution. The court also rejected the argument that the judge erred in choosing the Excise Act as the method of proceeding against the appellant, stating that the Act provided an appropriate and effective means of addressing the appellant's criminal conduct.

After thorough deliberation, the court determined that the sentence imposed was not manifestly excessive and that the judge had not erred in choosing the Excise Act as the method of proceeding against the appellant. The court upheld the orders for forfeiture and pecuniary penalties, finding them to be appropriate and proportionate to the appellant's criminal conduct. The appeal was subsequently dismissed, and the original sentence and orders remained in place.

Orders