Ulutui v The Queen - [2012] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0208

VENA ULUTUI
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and TATE JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2012
DATE OF JUDGMENT:	12 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 301
JUDGMENT APPEALED FROM:	DPP v Ulutui (Unreported, County Court of Victoria, Judge Gullaci, 11 May 2011)

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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary (persons present), attempted robbery, robbery – Home invasion – Co-offenders sentenced on basis of applicant’s alleged primary role and use of weapons – Applicant sentenced on different factual basis of his subsidiary role and co-offenders’ use of weapons – Co-offenders significantly younger than applicant – Applicant with intellectual deficits – Co-offenders sentenced for additional and some different offences – Differences appropriately reflected in sentences imposed – No breach of parity principle – Application refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

I have had the benefit of reading in draft the reasons of Williams AJA and agree for those reasons that the application for leave to appeal against sentence should be dismissed.

TATE JA:

I agree with Williams AJA.

WILLIAMS AJA:

The applicant seeks leave to appeal from the following sentence imposed upon him in the County Court on 11 May 2011:

Charge

Offence

Sentence

Cumulation

1

Aggravated burglary

2 years’ imprisonment

Base sentence

2

Attempted robbery

12 months’ imprisonment

6 months

3

Robbery

18 months’ imprisonment

9 months

Total effective sentence:      3 years and 3 months’ imprisonment

Non-parole period:             2 years

Pre-sentence detention:      20 days

S 6AAA declaration:          4 years, 6 months’ imprisonment with a non-parole period of 3 years.

Circumstances of the offences

At approximately 4.45am on Wednesday 18 February 2009, Margaret Shimmins, her nine year old son, Timothy Shimmins, and David O’Shea (aged 44) were all asleep in Ms Shimmins’ home in Chadstone. At the rear of the

house in an attached unit were Toula Derkos, Leigh Swan and Dec Chu who were all also asleep.

Ms Shimmins woke to a knock at the door. She answered the door, but could not see anyone. She returned to her bedroom for a torch. She went again to the front door and looked out. She was confronted by two men saying that they wanted to come in. She asked if they were looking for ‘Toula’ and gave them directions to the rear unit. The two men insisted on entering the house and there was a short struggle at the front door. Ms Shimmins called out to Mr O’Shea who tried to stop the men from coming in. The men pushed into the house and one punched Mr O’Shea in the face whilst the other demanded drugs and money. Ms Shimmins told them that she did not have anything to give them.

The applicant and another man then also…

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 Ulutui v The Queen

Details

AGLC: Ulutui v The Queen [2012] VSCA 301
Case: [2012] VSCA 301
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case of Ulutui v The Queen involved the applicant, who was convicted of aggravated burglary, attempted robbery, and robbery during a home invasion. The applicant's co-offenders were also sentenced based on their roles in the crime. The applicant, who was alleged to have played a primary role and used weapons, was sentenced differently, with the court finding him to have played a subsidiary role and that the co-offenders had used weapons. The applicant appealed against his sentence, claiming that the differences in their sentences breached the parity principle. The court was required to decide whether the sentences imposed were consistent with the principles of parity and whether the applicant's role and the use of weapons by co-offenders were correctly assessed.

The court carefully examined the roles of the applicant and his co-offenders in the crime. It noted that the applicant had intellectual deficits and was significantly older than his co-offenders. The court also considered that the co-offenders were sentenced for additional and some different offences. The court concluded that the differences in the sentences appropriately reflected the roles and the specific circumstances of each offender, including the use of weapons and the age and intellectual capacity of the applicant. The court found that there was no breach of the parity principle as the sentences imposed were consistent with the respective roles and culpability of the offenders.

In light of the above, the court dismissed the application for leave to appeal against the sentence. The court found that the differences in the sentences were justified and appropriately reflected the roles of the offenders, including the use of weapons by co-offenders, and the specific circumstances of each offender. The court confirmed that there was no breach of the parity principle, and the applicant's sentence was consistent with the principles of sentencing in such cases. No orders were made beyond the refusal of the application for leave to appeal.

Orders