R v Vuadreu [2009] VSCA 262

Mr C. Hyland, Solicitor for the Office of Public Prosecutions

1 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.

2 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.

3 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.

4 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.

5 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.

6 The appellant is now aged 28 years, having been born on 24 July 1981. He was intercepted by police in June 2007 while driving his white Mitsubishi Magna sedan in Kinnear Street, Footscray. Checks revealed that the number plates displayed on that vehicle were stolen. He was arrested and taken to the Footscray Police Station to be interviewed.

7 Once back at the station, the vehicle was searched. A bag containing a small quantity of amphetamine was located. That formed the subject of count 3.

8 A backpack, together with various war pins and memorabilia, all of which were stolen, were located in the vehicle. These items formed the basis of a 'rolled-up' count 1.

9 A search warrant was then executed at the appellant's home in Emerald. As a result, a large quantity of items, all believed to be stolen, were found. These included a number of firearms, a quantity of ammunition, various assorted electrical items, a plasma television set, jewellery, four digital cameras, clothing, laptop computers, a digital video recorder, two walkie talkies, and a portable DVD player. The goods located at the appellant's home were all subsequently linked to a number of burglaries that had been committed in the Dandenong Ranges area. The finding of these goods formed the subject of a 'rolled-up' count 2.

10 Counts 4 and 5 concerned the various firearms found at the appellant's home. Count 4 was expressed in terms of his having been a prohibited person in possession of 28 registered firearms. Count 5 referred to his having been a prohibited person in possession of an unregistered firearm, namely a Mannlicher Military Bolt Action Centrefire Rifle ('the Mannlicher'). The appellant was a prohibited person under the Firearms Act 1996 because of his extensive prior criminal history.

11 It seems that all but one of the 28 registered firearms referred to in count 4 were stolen from premises occupied by a Collin Wood, in The Patch. The firearms were valued at $30,000.

12 The total value of the stolen goods found at the appellant's home, including the 29 firearms, was approximately $120,000.

13 The appellant admitted a large number of prior convictions. Between December 1998 and May 2007 he had been convicted on 33 charges arising out of ten court appearances. He had a number of convictions for offences of dishonesty, including several for handling stolen goods. It is fair to say that the appellant had been treated leniently in the past, having been given Community Based Orders, and a number of wholly suspended sentences.

14 The appellant relies upon the following grounds of appeal:

1. In all the circumstances the sentences imposed on counts 1, 2, 4 & 5, the total effective sentence and the non-parole period are manifestly excessive.
2. The sentencing judge erred in his assessment of the relevance for sentencing purposes of the depression suffered by the appellant.
3. The learned sentencing judge erred by failing to order greater concurrency between the sentences imposed on counts 2, 4 & 5.
4. The sentencing judge erred by imposing sentences and in making orders for partial cumulation in respect of counts 2, 4 & 5 which effectively imposed double punishment upon the appellant having regard to the common factual basis of part of the allegations which constituted the offending on counts 2 & 4 and counts 2 & 5.
5. The sentencing judge erred by failing to take into consideration:
   1. the principles regarding the avoidance of double punishment; and
   2. s 51 of the Interpretation of Legislation Act 1984.

Grounds 3 to 5 - Double punishment/excessive cumulation

15 It was submitted before us, on behalf of the appellant, that the firearms which were included in the major count of handling (count 2) were the very same as those which were the subject of the counts of possession by a prohibited person of firearms (counts 4 and 5). That included the unregistered Mannlicher. It was scarcely surprising, given that that weapon was unregistered, that its owner had not come forward, and could not be identified.

16 It was further submitted, on behalf of the appellant, that there was a common factual basis between counts 2 and 4, and similarly between counts 2 and 5. That meant that the appellant should not have been sentenced without due regard being had to the rule against double punishment.[1] In other words, it was submitted that because these offences contained 'common elements', it was wrong to have punished the appellant twice for the commission of precisely those elements.

17 At the same time, it was sensibly conceded that the measure of any 'double punishment' in this case was limited. There were aspects of each of counts 4 and 5 which justified separate convictions on those counts, and, subject to a qualification to which we refer at para 18, some measure of cumulation in the sentences imposed for those offences with the sentence imposed on count 2. The argument is then reduced to whether the degree of cumulation was excessive.

18 A slight variant of this submission was directed towards the order for cumulation made regarding counts 4 and 5. It was submitted that there ought not to have been any cumulation between the sentences imposed on those counts because there was a single act of possession, involving all of the firearms, the vast majority of which had been acquired by the appellant as a 'job lot'. In that regard, there was nothing to distinguish between the registered weapons, the subject of count 4, and the unregistered Mannlicher, the subject of count 5. The appellant's moral culpability was the same in relation to both counts, there being nothing to suggest that he was aware that the Mannlicher was unregistered.

19 Counsel for the Crown sought to respond to that latter submission by reminding this Court that the appellant had pleaded guilty to each of counts 4 and 5, as separate offences. The offence of possession by a prohibited person of an unregistered firearm carried a maximum of 15 years' imprisonment at the time of its commission, whereas possession of a registered firearm carried only ten year maximum. It was submitted that this Court should assume that, by his plea of guilty, the appellant acknowledged that he had been aware, when he came into possession of the Mannlicher, that it was unregistered. For that reason some measure of cumulation was appropriate in relation to that count.

20 The evidence was that the property, which was the subject of the two counts of handling and count 4, had been sourced from 14 separate burglaries. As previously indicated, the Mannlicher, which was the subject of count 5, could not be sourced to anyone.

21 It was submitted on behalf of the Crown, that there was no measure of 'double punishment' in relation to counts 2, 4 and 5 because each of those offences was 'elementally different'. Each count was directed at a separate and distinct vice.[2] Each offence therefore called for separate punishment. It was submitted that, had the sentencing judge not cumulated at least part of the sentences imposed on each of counts 4 and 5 upon each other, and upon count 2, that of itself would have constituted error.

22 Despite the helpful submission presented by Senior Counsel for the Crown, we are not, in the end, persuaded by his argument. It was properly accepted that although possession by a prohibited person of an unregistered weapon (count 5) was a distinct, and aggravated, form of the offence the subject of count 4, there was nothing in the evidence to suggest that the appellant had any appreciation, at any relevant time, of the fact that the Mannlicher fell into a different legal category to the various registered firearms, the subject of count 4.

23 It is true that, by his plea, the appellant acknowledged each and every element of the aggravated offence. It is true that, in theory, that meant that he accepted that he had been aware, at the time he came into possession of the Mannlicher, that it was unregistered.[3] However, that is to elevate formalism above justice. As a matter of practicable reality, what seems to have occurred was that he received, perhaps at various times, a large number of weapons knowing them to be stolen, but not differentiating between them according to whether or not they were registered.

24 There was no distinguishing feature of the Mannlicher that would have suggested that, unlike the other weapons, it was unregistered. In truth, the appellant's moral culpability was no greater in relation to count 5, than in relation to count 4. There was but a single act of possession of a large number of stolen firearms. It was pure chance that one of those weapons happened to be unregistered. Therefore that offence could not be 'rolled up' with the offending described in count 4 only because the language used by the legislature in the formulation of that offence did not allow for that course.

25 That being so, it seems to us that although the Crown was entitled, and indeed bound, to differentiate between the registered weapons and the Mannlicher, and was therefore fully entitled to present the appellant on both counts 4 and 5, there was no real justification for any part of the sentence imposed on count 5 to have been made cumulative upon any part of the sentence imposed on count 4.

26 Yet that was the effect of his Honour's orders for cumulation. The appellant received an extra six months' total effective imprisonment for the possession of the Mannlicher. This came about by reason of the order that six months of the sentence on count 5 be made cumulative upon count 2, in circumstances where 12 months of the sentence on count 4 had already been made cumulative upon count 2.

27 That is not to say that the sentencing judge erred in adding 12 months to the sentence imposed on count 2 for the quite separate offences of handling stolen goods and possession by a prohibited person of a firearm. Those offences were, as the Crown submitted below, and as his Honour correctly observed, quite distinct from one another. They warranted separate and additional punishment. In our opinion, the problem lies only in the fact that a further six months was added to that punishment which seems to us to have been unwarranted.

28 It follows that grounds 3 to 5 are made out, though only in part. The appellant must be re-sentenced to reflect that conclusion. However, before doing so, we must briefly consider the remaining grounds of appeal.

29 There was material before the sentencing judge regarding the appellant's background and psychological state. That material consisted of a report dated 1 September 2008 by Dr Carla Lechner, a forensic psychologist.

I note that he has a prior history of offending associated with heavy alcohol and drug use. Mr Vuadreu presents as a young man whose social, vocational and emotional development has been compromised by early substance abuse, chronic feelings of inadequacy and tenuous social ties. He has struggled to develop a strong sense of identity and belonging, with his offending behaviour being linked with his needs for acceptance and approval within the only peer network that he could develop.

His history suggests that Mr Vuadreu may have been significantly depressed in the past, when caught in a cycle of self-destructive behaviours. There was no evidence of disordered thought in form or content.

Mr Vuadreu impressed as cognitively and emotionally immature; a young man who is still struggling to find his sense of identity and belonging. He is able to identify triggers to his negative feelings, but is less well able to express them appropriately.

Mr Vuadreu's progress in life has been hindered by his relapses to drug use and associated criminal activities. The current offences occurred in the context of him being out-of-work and wanting quick money. No doubt he also wanted the ongoing social connection with the "friends" who allegedly provided him with the stolen goods to "on-sell". Mr Vuadreu has some insight as to the self-destructive and self-defeating nature of his behaviour and to this end has found himself employment that he enjoys. He reports cutting ties with his former associates.

33 The sentencing judge said that he took Dr Lechner's report into account, and it is plain that he did so. He concluded that the appellant's prospects of rehabilitation were 'more than reasonable', a finding that must have depended, to some degree, upon Dr Lechner's assessment.

34 His Honour was asked to treat Dr Lechner's report as the basis for a finding that the principles set out in R v Verdins[4] applied to the appellant. He declined to do so. He stated:

You have been depressed, you do not suffer from a recognised psychiatric or psychological illness that would bring into play those decisions. However, I do take into account the fact that you were depressed, your drug dependency and your emotional immaturity in arriving at what would be an appropriate minimum term for you to serve.

35 That analysis was, with respect, incorrect, and for two separate reasons. First, the moderating effect upon sentence that is spoken of in Verdins is not confined to cases involving a 'recognised psychiatric or psychological illness' as the following passages explain:

The sentencing considerations identified in R v Tsiaras are not - and were not intended to be - applicable only to cases of "serious psychiatric illness". One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.[5]

...

The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[6]

36 Second, the moderating effect of mental impairment, spoken of in Verdins, if otherwise established, applies not merely to the minimum term, but also to the head sentence. That emerges clearly from the restatement in Verdins of the Tsiaras[7] principles:

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[8]

37 Despite his Honour's erroneous analysis of the scope of the Verdins principles, he was unquestionably correct, in our view, in holding that nothing said by Dr Lechner came anywhere near bringing the appellant within those principles. It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional. They should not be invoked in what can fairly be said to be routine cases of the type presented by the appellant as outlined by Dr Lechner in her report. In the present case there was no basis for concluding that the appellant's behaviour resulted from some 'impaired mental functioning' on his part. The sentencing judge was entirely justified in rejecting the contention that Verdins applied to the appellant's case.

39 This ground is devoid of merit. Each individual sentence, as well as the total effective sentence and the non-parole period, were within the sentencing range available to the learned sentencing judge. Indeed, having regard to the appellant's criminal history, it could be said that both the total effective sentence and the non-parole period were moderate.

40 The only reason why we have concluded that we must interfere with his Honour's sentencing disposition is because, in our view, the sentence on count 5 should not have been made cumulative upon count 2.

42 It follows that the appeal must be allowed, though only for the purpose of varying the order as to cumulation regarding count 5. The net effect will be that the sentences below are quashed and in lieu thereof the appellant is re-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.

43 For the avoidance of doubt, the sentences imposed in relation to the summary offences are confirmed

44 It will be ordered that 12 months of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 2. All other sentences are to be served concurrently. That makes a total effective sentence of three years. We fix a non-parole period of one year and three months.

[1] Pearce v R (1998) 194 CLR 610; and R v Sessions [1998] 2 VR 304. Statutory recognition of the rule against double punishment is to be found in the Interpretation of Legislation Act 1984, s 51.

[2] DPP v Faure [2005] VSCA 91; (2005) 12 VR 115, [8].

[3] R v Broadbent [1964] VicRp 94; [1964] VR 733, 735.

[4] [2007] VSCA 102; (2007) 16 VR 269.

[7] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.