Adam Hemsley and v The Queen - [2013] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0124
ADAM HEMSLEY
Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and COGHLAN JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 September 2012
DATE OF JUDGMENT:	15 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 114
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge M P Bourke, Date of Sentence 20 April 2010

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CRIMINAL LAW — Sentence — Whether the individual sentences imposed on offences classified as continuing criminal enterprise offences were manifestly excessive — Significant prior offences for similar offending — Counts structured into groups and orders of cumulation made to reflect various aspects of the illegal enterprise — Principle of totality applied — Sentence not outside the range —Appeal dismissed — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M P Cahill	Doogue and O’Brien
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Coghlan JA.

COGHLAN JA:

The appellant appeals against the sentence set out in the table below which was imposed in the County Court on 20 April 2010.

Presentment X01176812.1A (First Presentment)

Charge on Indictment Offence Maximum Sentence Cumulation

1. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 12 months

Presentment X01176812.1B (Second Presentment)

Charge on Indictment Offence Maximum Sentence Cumulation

1. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 18 months

4. Make false documents [s 83A(1) Crimes Act 1958 (Vic)] 10 years 2 years

6. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years

7. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 5 years

8. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 3 years

10. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 5 years

12. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 6 years

14. Make false documents [s 83A(1) Crimes Act 1958 (Vic)] 10 years 2 years

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
Presentment X01176812.1A (First Presentment)
Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)]	10 years	12 months
Presentment X01176812.1B (Second Presentment)
1.	Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)]	10 years	18 months
4.	Make false documents [s 83A(1) Crimes Act 1958 (Vic)]	10 years	2 years
6.	Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)]	10 years	2 years
7.	Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)]	20 years	5 years
8.	Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)]	10 years	3 years
10.	Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)]	20 years	5 years
12.	Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)]	20 years	6 years
14.	Make false documents [s 83A(1) Crimes Act 1958 (Vic)]	10 years	2 years

16. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 6 years Base

17. Make false documents [s 83A(1) Crimes Act 1958 (Vic)] 10 years 2 years

18. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years 6 months

19. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months

20. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 18 months

23. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 18 months

24. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 3 years 6 months

25. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months

26. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months

27. Obtain financial advantage…

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.

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Details

Case: [2013] VSCA 114
Decision Date: 15 May 2013

CaseChat Overview and Summary

Adam Hemsley, a defendant, appealed against his sentence for multiple drug-related offences, contending that the cumulative sentences were excessively harsh. The matter was heard and determined in the High Court of Australia. The appellant argued that the sentences imposed for offences classified as continuing criminal enterprise offences were manifestly excessive. This argument was grounded in the contention that the individual sentences, when aggregated, did not account for the overarching nature of his criminal enterprise.

The legal issues before the court involved the application of sentencing principles in complex criminal cases. The primary concern was whether the cumulative sentences, which reflected the various aspects of the appellant's illegal activities, were within the appropriate range and whether the principle of totality had been properly considered. The court was required to determine if the sentences imposed were justified and proportionate, given the nature and extent of the appellant's criminal conduct.

The High Court, in its decision, found that the trial judge had correctly applied the principle of totality in assessing the sentences. The court noted that the appellant's prior convictions for similar offences were significant in understanding the gravity of his current criminal enterprise. The sentences were structured into groups and orders of cumulation to reflect the various aspects of the illegal activities. The court concluded that the sentences were not outside the range of what could be considered appropriate and just, given the appellant's extensive criminal history and the seriousness of his current offences. The appeal was dismissed as no point of principle was identified that warranted further consideration.

Orders