Andrick v The Queen - [2010] VSCA 238

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0601

PATRIC ANDRICK
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2010
DATE OF JUDGMENT:	14 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 238
JUDGMENT APPEALED FROM:	R v Andrick (Unreported, County Court of Victoria, 27 April 2009, Judge Jenkins)

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CRIMINAL LAW – Appeal against sentence – Two counts theft, two counts obtaining property by deception, one count burglary and one count attempting to obtain property by deception – Whether plea of guilty sufficiently taken into account – Delay – Whether change in appellant’s personal circumstances sufficiently taken into account – Whether total effective sentence of six years’ imprisonment with a non-parole period of four years and six months manifestly excessive – Appeal allowed – Total effective sentence manifestly excessive – Specific error also demonstrated – Appellant re-sentenced to four years and three months’ imprisonment with a non-parole period of two years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O.P. Holdenson QC	Tony Hargreaves & Partners
For the Crown	Mr S.M. Cooper	Mr C. Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I will ask Weinberg JA to give the first judgment.

WEINBERG JA:

On 17 March 2009, the appellant pleaded guilty in the County Court at Melbourne, to two counts of theft (counts 1 and 4), two counts of obtaining property by deception (counts 2 and 5), one count of burglary (count 3), and one count of attempting to obtain property by deception (count 6). All of these counts were contained on a single presentment.

The circumstances surrounding these offences were as follows. In February 2003, the appellant, together with two friends, established a computer consultancy service business under the name Procom IT. The appellant was a computer systems engineer and dealt with technical aspects of the business. Right from the start there were cash flow problems. In May 2003, it was decided to operate the business as a company, and the corporate entity Procom IT Pty Ltd was set up. The appellant became its sole director. One of his two business partners became its sole secretary.

The appellant was responsible for attending clients' premises in order to program their computers, attend to viruses, and generally perform computer maintenance. His work often entailed after hours attendance on site at clients' premises.

From early March 2003 until late January 2004, the business rented offices numbered 7, 11, 20 and 21 at the P & S Caulfield Business Centre located at 189-191 Balaclava Road, Caulfield North. However, things did not go well and, by November 2003, the business was in serious financial difficulty. The appellant, at that stage, was effectively running it as his own.

Count 1 concerned the theft, some time between December 2003 and January 2004, of 18 Bank of Melbourne blank cheque forms belonging to a firm of architects, John Griffin Trading Pty Ltd, which is located in Punt Road, Richmond. That…

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 Andrick v The Queen

Details

AGLC: Andrick v The Queen [2010] VSCA 238
Case: [2010] VSCA 238
Decision Date: 14 September 2010

CaseChat Overview and Summary

In the case of Andrick v The Queen, the appellant, Andrick, was convicted on two counts of theft, two counts of obtaining property by deception, one count of burglary, and one count of attempting to obtain property by deception. He appealed against his sentence, arguing that the total effective sentence of six years' imprisonment with a non-parole period of four years and six months was manifestly excessive. The appeal was heard by the court, which had to determine whether the sentence was appropriate given the nature and circumstances of the offences and the appellant's personal circumstances.

The court examined whether the plea of guilty was sufficiently taken into account when the sentence was determined. The appellant had entered a plea of guilty at the earliest opportunity, which was a mitigating factor. Additionally, the court assessed whether the delay in the proceedings and the changes in the appellant's personal circumstances were adequately considered. The appellant had experienced delays in the proceedings and changes in his personal circumstances that could have been taken into account to mitigate his sentence.

The court found that the total effective sentence was manifestly excessive, despite the mitigating factors. The court also identified a specific error in the sentencing process. The appeal was allowed, and the appellant was re-sentenced to four years and three months' imprisonment with a non-parole period of two years and six months. This reduced sentence reflected a more proportionate response to the offences committed, considering the appellant's plea of guilty, the delay in the proceedings, and his personal circumstances.

Orders