SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0051
| MARTIN AITCHISON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 October 2015, 15 December 2015 |
| DATE OF JUDGMENT: | 15 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 348 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions v Aitchison (Unreported, County Court of Victoria, Judge Sexton, 17 February 2015) |
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CRIMINAL LAW – Sentence – Appeal and application for leave to appeal against sentence – Commonwealth offence – White collar crime – Repeated and extended fraudulent lodging of Business Activity Statements claiming fuel rebates – Systematic defrauding of public revenue which relies on trust and integrity – General deterrence – Whether general deterrence should be a sentencing objective in Commonwealth offences – Distinction between ‘marginal general deterrence’ and ‘absolute general deterrence’ – Whether the principle of general deterrence is inconsistent with s 16A of the Crimes Act 1914 (Cth) – Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) – Whether introduction of express reference to general deterrence in s 16A(2) implied that it was not previously a relevant consideration in sentencing federal offenders – Whether previous good character is a sentencing consideration in white collar offences – Principle of proportionality – Whether proportion of harm caused by the offending should be a key sentencing consideration – Whether white collar offences committed against the public revenue should be distinguished from white collar offences committed against individuals – Whether sentence of 8 years with recognisance release order after 5 years is manifestly excessive – Appeal dismissed and application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Alexander with Mr H Kirimof | Bagaric Lawyers |
| For the Respondent | Mr D J Lane | Commonwealth Director of Public Prosecutions |
WHELAN JA:
For the reasons set out by Santamaria JA, I too agree that leave to appeal should be refused on proposed ground 1, and that the appeal should be dismissed.
SANTAMARIA JA:
On 28 November 2014, the appellant (now aged 64) pleaded guilty to three charges of obtaining financial advantage by deception and one charge of attempting to obtain financial advantage by deception. Following a plea on 28 November 2014 and 4 February 2015, the appellant was sentenced on 17 February 2015 as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Dishonestly obtain financial advantage by deception from a Commonwealth entity [Criminal Code (Cth) 134.2(1)] | 10 years imprisonment [Criminal Code (Cth) 134.2(1)] | 2 years | Sentence to commence 17 August 2020 |
| 2 | Dishonestly obtain financial advantage by deception from a Commonwealth entity | 10 years imprisonment | 4 years | Sentence to commence 17 August 2017 |
| 3 | Dishonestly obtain financial advantage by deception from a Commonwealth entity | 10 years imprisonment | 5 years | Base sentence |
| 4 | Attempt to dishonestly obtain financial advantage by deception from a Commonwealth entity [Criminal Code (Cth) 134.2(1) and 11.1] | 10 years imprisonment [Criminal Code (Cth) 134.2(1)] | 18 months | Sentence to commence 17 August 2021 |
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- AGLC
- Aitchison v The Queen [2015] VSCA 348
- Case
- [2015] VSCA 348
- Decision Date
CaseChat Overview and Summary
The court examined the objectives of sentencing under the Crimes Act 1914, particularly the role of general deterrence. It noted that while general deterrence was not explicitly mentioned in section 16A of the Act, it was implicit in the statutory objectives. The court held that general deterrence, particularly marginal general deterrence, was relevant and consistent with the statutory objectives. It distinguished this from absolute general deterrence, which was not relevant to sentencing. The court further clarified that the introduction of an express reference to general deterrence in section 16A(2) did not imply it was previously irrelevant. It also found that the principle of proportionality required consideration of the harm caused by the offending, but did not deem the sentence of 8 years with recognisance release after 5 years to be manifestly excessive.
The court concluded that the sentence imposed was appropriate, taking into account the objectives of sentencing and the nature of the offences. It found no basis to interfere with the sentence or to grant leave to appeal. The appeal was dismissed, and the application for leave to appeal was refused. This decision underscores the importance of considering the objectives of sentencing, including general deterrence and proportionality, in cases of white collar crime.
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