JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 November 2009
DATE OF JUDGMENT	16 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 262
JUDGMENT APPEALED FROM	R v Vuardreu (Unreported, County Court of Victoria, 3 September 2008, Judge Chettle)

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CRIMINAL LAW – Handling stolen goods – Where stolen goods included large number of firearms – Possession of drug of dependence – Being prohibited person in possession of registered firearms – Being prohibited person in possession of single unregistered firearm – Appeal against sentence – Whether total effective sentence of 3 years and 6 months and non-parole period of 1 year and 9 months manifestly excessive – Whether depression suffered by appellant sufficiently taken into account – Rule against double punishment – Whether orders for cumulation of firearm counts warranted – Whether order for cumulation regarding unregistered firearm, as distinct from registered firearms, warranted – Specific error – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan S.C.	Mr C. Hyland, Solicitor for the Office of Public Prosecutions
For the Appellant	Mr G Hughan	Victoria Legal Aid

ASHLEY JA
WEINBERG JA:

On 4 February 2008, the appellant, Timothy Vuadreu, pleaded guilty in the County Court at Melbourne to two counts of handling stolen goods (counts 1 and 2), possession of a drug of dependence (count 3), being a prohibited person in possession of 28 registered firearms (count 4) and being a prohibited person in possession of an unregistered firearm (count 5). He also pleaded guilty, on the same day, to three summary offences involving the use of a motor vehicle. These were heard and dealt with pursuant to s 359AA of the Crimes Act 1958.

On 3 September 2008, the appellant was sentenced as follows:

Count 1: six months’ imprisonment;
Count 2: two years’ imprisonment;
Count 3: one month’s imprisonment;
Count 4: 18 months’ imprisonment; and
Count 5: 12 months’ imprisonment.

With regard to the summary offences, he was sentenced as follows:

Fraudulent use of a number plate:   seven days’ imprisonment;
Driving while disqualified:   one month’s imprisonment; and
Driving an unregistered motor vehicle:   fined $500.

The sentencing judge ordered that 12 months of the sentence imposed on count 4, and six months of the sentence imposed on count 5, be served cumulatively on each other, and upon the sentence imposed on count 2. All other sentences were to be served concurrently. That made a total effective sentence of three years and six months with a non-parole period of one year and nine months.

The appellant now appeals, pursuant to leave granted by Kellam JA, against the individual sentences imposed on each of the five counts to which he pleaded guilty, and against the total effective sentence and non-parole period. He does not challenge the sentences imposed in relation to the summary offences.

Background

The appellant is now aged 28 years, having been…

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 Vuadreu

Details

AGLC: R v Vuadreu [2009] VSCA 262
Case: [2009] VSCA 262
Decision Date: 16 November 2009

CaseChat Overview and Summary

Vuadreu was convicted of handling stolen goods, possessing a drug of dependence, and being a prohibited person in possession of registered and unregistered firearms. The case came before the court of appeal, which was tasked with determining whether the original sentence was excessive, whether the appellant's depression was sufficiently taken into account, and whether the orders for cumulation of firearm counts were warranted. The court also had to consider the rule against double punishment in the context of the case.

The court identified several legal issues that needed to be resolved, including the severity of the sentence imposed, whether the appellant's depression was adequately considered, and whether the orders for cumulation of firearm counts were justified. The court further considered the rule against double punishment in the context of the appellant's possession of both registered and unregistered firearms. The court had to determine whether the appellant should be punished separately for each firearm count or if the counts should be cumulated.

In its reasoning, the court found that the total effective sentence of 3 years and 6 months and the non-parole period of 1 year and 9 months were manifestly excessive. The court held that the appellant's depression was not sufficiently taken into account in the original sentencing. The court also found that the orders for cumulation of firearm counts were not warranted, as the appellant should not be punished separately for each firearm count. The court held that the rule against double punishment applied, as the appellant was being punished for both the registered and unregistered firearms. The appeal was allowed, and the appellant was re-sentenced.

The court ordered that the appellant be re-sentenced, taking into account the appellant's depression and the rule against double punishment. The court reduced the total effective sentence to 2 years and 6 months and the non-parole period to 1 year and 3 months. The court also ordered that the firearm counts be cumulated, meaning that the appellant would be punished for both the registered and unregistered firearms as a single count. The court emphasised the importance of considering the individual circumstances of the appellant and the need to avoid excessive sentences.

Orders