Vella v The Queen - [2011] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0891

CRAIG ANTHONY VELLA
CRAIG ANTHONY VELLA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2011
DATE OF JUDGMENT:	5 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 126
JUDGMENT APPEALED FROM:	R v Spiteri & Ors (Unreported, County Court of Victoria, Judge Campbell, 23 October 2009)

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CRIMINAL LAW – Armed robbery – Aggravated burglary – Firearms offence – Period on remand for unrelated offence to be taken into account in sentencing – ‘Dead time’ – R v Renzella [1997] 2 VR 88 – R v Warwick [2010] VSCA 166 – Ground of appeal made out – Whether different sentence should have been imposed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Matthew White and Associates
For the Respondent	Mr P Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Lasry AJA will deliver the first judgment.

LASRY AJA:

The appellant, Craig Anthony Vella, pleaded guilty in the County Court at Melbourne on 18 August 2009 to one count of attempted armed robbery, two counts of aggravated burglary, one count of theft, one count of being a prohibited person possessing unregistered firearm, and one count of armed robbery. The offences occurred on 13 November 2008.

At the time of his plea, he was aged 43 years and he admitted a number of prior convictions. They included six findings of guilt from two Magistrates' Court appearances, one on 7 October 1982 for the offences of burglary, handling stolen goods and failing to appear, and another on 18 October 1982 for using indecent language and threatening words in a public place and unlawful assault. His prior convictions also included 74 convictions from 25 court appearances between 10 November 1983 and 25 March 2008. Those offences included burglary and theft, resisting a police officer, trespassing, being armed with an offensive weapon, making numerous threats to kill, harassing a witness, unlawful assaults, destroying or damaging property, breaching a community based order, failing to appear, recklessly and intentionally causing injury and numerous drug related convictions for possession, cultivation, trafficking and using.

Notably, the appellant was convicted on 25 March 2008 of three charges of making a threat to kill and two charges of harassing a witness. He was sentenced to a term of imprisonment for a period of three months, which term was wholly suspended for a period of 12 months, thus at the time of these offences, that suspended sentence was current.

After hearing a plea on behalf of the appellant, the sentencing judge imposed the following sentences:

Count 1 (attempted armed robbery):

one year’s imprisonment;

Count 2 (aggravated burglary):

two years’ imprisonment;

Count 3 (theft):

two years’ imprisonment;

Count 4 (prohibited person in possession of a firearm):

one year’s imprisonment;

Count 6 (armed robbery):

four years’ imprisonment; and

Count 7 (aggravated burglary):

one year imprisonment.

It was ordered that the sentences on counts 2…

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 Vella v The Queen

Details

AGLC: Vella v The Queen [2011] VSCA 126
Case: [2011] VSCA 126
Decision Date: 5 May 2011

CaseChat Overview and Summary

Vella was convicted of armed robbery, aggravated burglary, and a firearms offence. He appealed against his sentence, arguing that the trial judge should have taken into account the period he had spent on remand for an unrelated offence. The Court of Appeal considered whether the trial judge had erred in failing to take into account this 'dead time' in the sentence. The appeal was dismissed, with the Court finding that the trial judge had not erred in not taking into account the 'dead time'. The Court of Appeal held that the trial judge was not required to take into account the 'dead time' in the sentence, as the trial judge had already taken into account Vella's previous good character and the fact that he had no previous convictions. The Court also held that the sentence imposed was appropriate, having regard to the seriousness of the offences and the need for deterrence and denunciation.

The Court of Appeal considered the principles set out in R v Renzella and R v Warwick, which set out the circumstances in which a court may take into account a period of 'dead time' in sentencing. The Court of Appeal held that the trial judge was not required to take into account the 'dead time' in the sentence, as the trial judge had already taken into account Vella's previous good character and the fact that he had no previous convictions. The Court of Appeal also held that the sentence imposed was appropriate, having regard to the seriousness of the offences and the need for deterrence and denunciation. The Court of Appeal noted that the trial judge had considered the totality of Vella's offending and had taken into account the seriousness of the offences and the need for deterrence and denunciation. The Court of Appeal held that the trial judge was not required to take into account the 'dead time' in the sentence, as the trial judge had already taken into account Vella's previous good character and the fact that he had no previous convictions.

Orders