JUDGES:	PRIEST, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 September 2020
DATE OF JUDGMENT:	12 October 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 265
JUDGMENTS APPEALED FROM:	[2018] VCC 1277; [2020] VCC 1319 (Judge Johns)

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CRIMINAL LAW – Appeal – Sentence – Receiving stolen goods – Sentencing procedure – Principle of parity – Weighting of mitigating factors – Comparison of mitigating factors of co-accused – Manifest excess – Sentence only manifestly excessive where wholly outside available range – Manifest excess of disparity in sentences of co-accused – Manifest inadequacy in sentences of co-accused – Sentencing not a mechanical exercise – De Simoni principle – Sentencing assessment confined to charges on the indictment – Relevance of accused’s role in creating context for own offending to assessment of seriousness – Extra-curial punishment – Impact of COVID-19 pandemic on sentencing – Family hardship as a standalone sentencing consideration – Leave to appeal refused – R v De Simoni (1981) 147 CLR 383 considered; Nipoe v The Queen [2020] VSCA 137, Clarkson v The Queen (2011) 32 VR 361, House v The King (1936) 55 CLR 799 applied – Crimes Act 1958 s 88, Second-Hand Dealers and Pawnbrokers Act 1989 ss 19, 20.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Mendieta-Blanco)	Ms R Shann with Ms C Boston	Furstenberg Law
For the Applicant (Tenenboim)	Mr D Grace QC with Dr M Fitzgerald	David Grace QC
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
T FORREST JA:

Introduction

The applicants, Alejandro Mendieta-Blanco (‘AMB’) and Chey Tenenboim (‘CT’), were associated with a business called Sell Your Gold Pty Ltd. The business traded in gold, diamonds, precious gems and luxury watches. A large part of the business involved the purchase of gold jewellery from members of the public. Each applicant pleaded guilty to one rolled-up charge of receiving stolen goods, as did a third person, Julio Mendieta-Blanco (‘JMB’), who is not the subject of an application for leave to appeal. The three men were sentenced in the County Court as follows.

AMB

Offence Legislation Maximum Sentence

Receiving stolen goods Crimes Act 1958 s 88 15 years 4 months’ imprisonment +
2-year CCO (200 hours)

s 6AAA declaration 24 months’ imprisonment, with a non-parole period of
12 months

Pre-sentence detention Nil
CT

Offence Legislation Maximum Sentence

Receiving stolen goods Crimes Act 1958 s 88 15 years 12 months’ imprisonment +
2-year CCO
(200 hours)

s 6AAA declaration 4 years’ imprisonment, with non-parole period of
2 years 6 months

Pre-sentence detention 32 days
JMB

Offence Legislation Maximum Sentence

Receiving stolen goods Crimes Act 1958 s 88 15 years 2.5-year CCO

s 6AAA declaration 20 months’ imprisonment, with non-parole period of 10 months

Pre-sentence detention Nil

The applicants seek leave to…

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.

Continue reading Alejandro Mendieta-Blanco v The Queen

Details

AGLC: Mendieta-Blanco v The Queen [2020] VSCA 265
Case: [2020] VSCA 265
Decision Date: 12 October 2020

CaseChat Overview and Summary

The case of Alejandro Mendieta-Blanco v The Queen involved an appeal against sentence by the defendant, who had been found guilty of receiving stolen goods. The appeal was heard by the Victorian Court of Appeal. The central issue was whether the sentence imposed was manifestly excessive or inadequate, and whether the disparity in sentencing between the defendant and his co-accused was justified. The appeal also considered the impact of mitigating factors, including the defendant’s role in the offending, and the broader context of the COVID-19 pandemic.

The court had to determine if the sentence imposed was manifestly excessive, considering the principle of parity in sentencing co-accused. The appeal argued that the disparity in the sentences between the defendant and his co-accused was unjust, and that the sentencing process did not adequately weigh mitigating factors. The appeal also raised questions about the relevance of the defendant’s role in the context of the offending and whether family hardship should be considered as a standalone factor.

The Court of Appeal found that while the disparity in sentences between the defendant and his co-accused was notable, it was not so great as to render the sentences manifestly excessive. The court emphasised that sentencing is not a mechanical exercise and that the assessment of seriousness should be confined to the charges on the indictment. The court also considered the principle of parity but concluded that the disparity did not reach the threshold of manifest excess. The appeal against sentence was dismissed, and the original sentence was upheld.

No further orders were made by the Court of Appeal, and the defendant's appeal was dismissed.

Orders