Shane DELLA-VEDOVA v R

Court of Criminal Appeal (NSW)|2009-04-02|Before: Simpson J, Buddin J, Clellan CJ

The application for leave to appeal 46 Two grounds of appeal were initially pleaded, framed as follows: "1. His Honour erred in finding that there was no evidence of remorse from the Applicant. 2. His Honour erred in partially accumulating the sentence for count 2 on the sentence imposed on count 1 such that the sentence for count 2 commenced on 5 November 2007 and the sentence for count 1 commenced on 5 November 2009."

On the hearing of this appeal, leave was granted to the applicant to amend by filing two additional grounds. They are: "3. His Honour erred in failing to identify the discount afforded to the applicant for his pleas of guilty at the first opportunity and erred in failing to apply a discount of 25 percent. 4. The total sentence was manifestly excessive."

Ground 2: accumulation 53 In written submissions senior counsel argued that the two offences, although containing different elements, almost entirely overlapped. He characterised "the criminal act comprising the Commonwealth offence" as: " … taking the rocket launchers off the Base with the intention of taking them to his home",

which, so it was said, was when he intended permanently to deprive the Commonwealth of them. 54 I accept that that was the criminal act comprising the Commonwealth offence. But senior counsel went on to characterise "the criminal act comprising the State offence" also as: " … taking the rocket launchers out of the Base with the intention of taking them to his home"

at which point he had no authority to possess them - ie precisely the same act as that said to comprise the Commonwealth offence. 55 The propositions were formulated in this way to provide the foundation for a further submission, that the act of taking the rocket launchers from the Base was the act that formed the basis of both offences. If this proposition were correct, it would permit a conclusion that the two offences ought to be treated as essentially a single course of conduct, warranting the imposition of concurrent sentences. 56 But the latter characterisation is simply wrong. The criminal act comprising the State offence was the possession of the rocket launchers. It did not start and end with their removal from the Base. It was not only at that point that the applicant had no authority to possess them: that continued throughout the entire time that they were in his possession. 57 Senior counsel relied upon a passage in the Remarks on Sentence of Whealy J in R v Lodhi [2006] NSWSC 691, in which his Honour said:

"I am not satisfied, however, that there is any necessity in all the circumstances to impose sentences that are other than entirely concurrent. This flows from the reasons I have given earlier in this decision relating to the fact that the offender's conduct might properly be viewed and, in my view, should properly be viewed as one uninterrupted and continuing course of criminal conduct over a relatively brief period of time. The offender's criminal intention, although directed to the commission of three separate offences, was in essence a manifestation of one continuing uninterrupted intention. In my view, the criminality involved in the second count is sufficient to encompass the criminality of the other offences. The principle of totality in the particular circumstances does not permit me to inflict any additional punishment for those two offences." 58 Even from that brief extract, divergences between the two cases can be seen. The applicant's offences (at least the possession offence) certainly did not occur over "a relatively brief period of time". Nor were they "a manifestation of one continuing uninterrupted intention". The dishonest appropriation of the rocket launchers was preliminary to, but nevertheless an offence distinct from, the offence constituted by their continued possession. 59 Senior counsel filed supplementary submissions in support of this ground. He relied upon the decision of the High Court in Pearce v The Queen [1998] HCA 57; 194 CLR 610. In the joint judgment, McHugh, Hayne and Callinan JJ held that, where two offences contain common elements, it would be wrong to punish an offender twice for those common elements. Even where the statute creating the offences are such as to give rise to more than one offence, with areas of overlap, care should be taken to ensure that the overlap does not result in additional punishment. But that is not this case. The two offences are, for very good reasons, discrete and very different. The Commonwealth offence was, as senior counsel submitted, constituted by (and was complete on) the removal of the rocket launchers from the Base. The State offence may have commenced at that time (it may be assumed that until that time the applicant's possession of them was not unauthorised) but it continued until he disposed of them. 60 In R v Dudko [2002] NSWCCA 336; 132 A Crim R 371, Spigelman CJ observed that, in that case, "the gist or gravamen" of the criminal behaviour was not the same in the two offences, although both were part of a course of conduct. 61 So it is, for the reasons I have already given, in the present case. 62 In oral submission, senior counsel argued that, because of the dates specified in the indictment both offences were of a continuing nature. That is true of the possession offence. It is not true of the appropriation offence, which, by its very nature, is complete when certain things are done - in this case, the removal of the weapons. Continued possession of items such as dangerous weapons is not in the same category as continued possession of other items that have been stolen or otherwise unlawfully obtained. In some circumstances, it might be appropriate to perceive continued possession of a stolen item as the logical and natural result, or continuation, of the offence of stealing. But it is not possible to overlook the nature of possession, where possession of that item is, of itself, and by reason of different statutory provisions (and for different and very obvious reasons) unlawful. Possession of these weapons (without appropriate authorisation) is a discrete offence, and is an offence no matter how the possessor comes into possession of them. It may be the result of, but is not the same as, unlawful acquisition. 63 I would reject ground 2.

64 As set out above, Williams DCJ stated that he allowed the discount of: "In the order of between twenty and twenty-five percent." 65 It was put that there was no good reason why this should not have been precisely quantified. It is unnecessary to say any more about that. The ground of appeal has no merit. Notwithstanding the encouragement given in Thomson & Houlton to do so, a judge is not obliged to quantify the discount allowed for a plea of guilty. The only authority put forward on behalf of the applicant for the proposition that the quantification of the discount as "between twenty and twenty-five percent" is indicative of error was an extempore decision of this Court in R v Shenton [2003] NSWCCA 346, in which Handley JA, in concurring remarks, said: "I really emphasise for myself the importance of sentencing judges following the practice commended by the Chief Justice [in Thomson & Houlton ] in actually making it clear what discount they have in fact allowed in the sentence that they are awarding."

I do not read this as authority for the proposition stated. Over-precision in formulating the discount can, and on occasion does, result in absurdly complicated sentences of odd months, weeks and days, instead of rounded figures. Further, the principles applicable to discounting for pleas of guilty in Commonwealth offences are not the same as those applicable in discounting for pleas of guilty in State offences: see Cameron v The Queen [2002] HCA 6; 209 CLR 339. 66 Here, the judge was sentencing for a combination of State and Commonwealth offences. Failure to be more specific does not, in my opinion, constitute error. I would reject this ground.

Ground 4: manifestly excessive? 67 The argument put in support of this ground had two strands. 68 Firstly, it was put that, having regard to the maximum sentences available, and particularly after factoring in the discounts for the pleas of guilty, the sentencing starting points were at close to the maximum provided in respect of the said offence, and therefore available only if the offences could properly be categorised as "worst case" offences (which, it was argued, they were not). 69 In respect of the Commonwealth offence, the maximum sentence is 10 years. If it be assumed that the discount for the plea of guilty was 25%, then the starting point (for the head sentence) was 8 years. 70 The maximum sentence applicable to the State offence is 14 years; a 25% discount resulting in a head sentence of 8 years indicates a starting point (for the head sentence) of 10.6 years. 71 It is true that each of these sentences, more so that imposed in respect of the Commonwealth offence, was well above 50% of the maximum. 72 Senior counsel argued that a "worst case" conclusion could only be drawn if the DPP established that the weapons were operable. He stressed that the onus of proving that lay upon the DPP. 73 He then pointed to answers given by the applicant in his interview that suggested, or were capable of suggesting, that the weapons were ineffective. Two responses may be made to this. Firstly, the answers on which he relied were, at best, equivocal. On one occasion the applicant said that the weapons were earmarked for destruction: "Because they're either failed, failed proof, in other words they weren't going to work, they'd failed proof. They're out of service life." (Q 104)

or words to similar effect. 74 A little later, in reference to ammunition, he said some were to be disposed of because they were "unserviceable". He said other things to the same effect. However, he did not explicitly assert that the weapons had no functioning capacity, and certainly did not assert that he had taken any steps to render them inoperable. 75 The second answer to the proposition is that no weight whatsoever could be placed on anything said by the applicant in his interview. The sentencing judge rejected his answers in a number of respects. The interview as a whole was largely a self-serving exercise on the part of the applicant, designed to downplay the very serious offences he had committed. And common sense dictates that it is unlikely that the applicant would sell inoperable weapons to the kind of individuals to whom these were supplied. 76 Nor do I accept that there is any onus on the DPP to prove that the weapons were operable. By the applicant's own admission, he had removed them from the possession of the Army, and, except for one, they have not been available for testing. The only reasonable inference, in my mind, is that all ten of the rocket launchers were effective (and deadly) weapons. 77 Although the sentencing judge did not make any express findings that these offences fall into the category of worst cases, such a view was entirely open. It is not only the nature of the weapons - it is also the number that must be recognised. 78 Accordingly, the sentences were not manifestly excessive by reason of any false factual assumption or evaluation of criminality on the part of the sentencing judge. 79 The second argument put in support of this ground concerned the weight given to mitigating factors. 80 Senior counsel pointed to four mitigating factors accepted by the sentencing judge. These were that the applicant had no criminal record, that he was a person of good character, that he was unlikely to re-offend and had good prospects of rehabilitation, and that he had pleaded guilty at the first opportunity. 81 The last of these must be put to one side. It is recognised in the discount allowed for the plea of guilty. It cannot be recounted as a mitigating factor. 82 The first and second are, in effect, part of the same thing. They were given weight, and appropriate weight. The same must be said for the third. 83 I have set out above, in some detail, the favourable subjective material put about the applicant's service record. But, as I have previously observed, a good deal of this comes from material that came into existence at a time when, although unbeknown to those who favourably reported upon him, the applicant had committed these offences. 84 What the applicant cannot avoid is that these offences were a serious breach of trust. He was, as he has shown, a highly regarded and trusted army officer. It was because of that that he was entrusted with the destruction of deadly weapons. He abused that trust in order to make those weapons available on the black market, and to enrich himself. He would not have been in a position to do that had he not had the favourable history on which he now relies. 85 These offences on the part of the applicant were of the utmost seriousness. The weapons are dangerous and life threatening. His Honour found that the only reasonable use of them was for criminal or terrorist activities. In reaching that view he was entirely correct. 86 I would grant leave to appeal but dismiss the appeal. 87 BUDDIN J: I agree with Simpson J. **********

28/04/2009 - Additional notation added after paragraph 14 regarding counsel appearances. - Paragraph(s) 14

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Weapons Prohibition Act 1988(NSW)

CITATION: Shane DELLA-VEDOVA v R [2009] NSWCCA 107 This decision has been amended. Please see the end of the judgment for a list of the amendments.

R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Lodhi [2006] NSWSC 691 CASES CITED : Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Dudko [2002] NSWCCA 336; 132 A Crim R 371 R v Shenton [2003] NSWCCA 346 Cameron v The Queen [2002] HCA 6; 209 CLR 339

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