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Court of Criminal Appeal 21 April 2009

Shane DELLA-VEDOVA v R

[2009] NSWCCA 107

Theft & propertyFirearms & weapons
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Shane DELLA-VEDOVA v R [2009] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 21 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Buddin J

Background

The appellant was a long-serving member of the Australian Defence Forces holding qualifications as an Ammunitions Technical Officer. His duties included the disposal of redundant weapons. He was entrusted with the destruction of, among other items, rocket launchers containing highly explosive charges capable of penetrating armoured vehicles.

The appellant pleaded guilty in the District Court to two charges arising from the same ten rocket launchers: unauthorised possession of prohibited weapons under NSW law, and dishonest appropriation of Commonwealth property under federal law. The sentencing judge, Williams DCJ, imposed a total effective sentence of ten years' imprisonment with a non-parole period of seven years.

The appellant sought leave to appeal against the severity of those sentences, raising several grounds including errors in the treatment of remorse, accumulation of sentences, the discount applied for his guilty plea, and manifest excess.

  • Whether the sentencing judge erred in his consideration of evidence of remorse
  • Whether the sentencing judge erred in accumulating the two sentences
  • Whether the sentencing judge incorrectly applied the discount for the early guilty plea
  • Whether the total effective sentence was manifestly excessive having regard to the objective seriousness of the offences and the mitigating factors

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Simpson J (with whom McClellan CJ at CL and Buddin J agreed) found no error in the sentencing judge's approach to remorse, accumulation, or the plea discount.

On the question of manifest excess, the Court found that the offences were of the utmost seriousness. The ten rocket launchers were described as dangerous and life-threatening weapons whose only reasonable use, as the sentencing judge found, was for criminal or terrorist activities. Although no express "worst case" finding was made below, the Court considered such a characterisation was entirely open given both the nature and the number of the weapons involved.

The Court acknowledged that the appellant had significant mitigating factors: no prior criminal record, good character, strong prospects of rehabilitation, and an early guilty plea. However, it noted that much of the favourable subjective material, including positive service reports, came into existence at a time when the appellant had already been committing the offences, unbeknown to those who praised him. His conduct represented a serious breach of the trust placed in him precisely because of his exemplary record and specialised role.

The Court also made pointed observations about the inadequacy of the statement of agreed facts presented to the sentencing judge. That document had been prepared by the investigating team rather than by lawyers for the Director of Public Prosecutions, and failed to distinguish between allegations and agreed facts. Simpson J described this as a serious dereliction of duty on the part of those representing the DPP, noting that senior counsel had been briefed, making the failure particularly concerning.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a total effective sentence of ten years with a seven-year non-parole period was not manifestly excessive for the theft and unauthorised possession of ten live rocket launchers by a trusted military officer.
  • A guilty plea discount cannot simultaneously be counted as a separate mitigating factor; its weight is already reflected in the reduction applied to the sentence.
  • Favourable subjective material such as service records and character references carries reduced weight where that material was generated during the very period in which the offending was occurring.
  • Statements of agreed facts presented at sentencing must be prepared by legally trained advocates representing the prosecution, not simply drawn from investigative documents; the Court criticised the DPP's representatives for failing to meet this basic obligation.
  • Where weapons of the kind in question have no lawful civilian use and are capable only of criminal or terrorist application, a sentencing court's assessment of objective seriousness at the highest level is well open, even without an express "worst case" finding.

Legislation and Cases Referenced

Legislation
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Code Act 1995 (Cth), s 131.1(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Listening Devices Act 1984 (NSW)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Lodhi [2006] NSWSC 691
- 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