Anthony Robert Coleman and v The Queen and - [2014] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0106

ANTHONY ROBERT COLEMAN

Applicant

THE QUEEN

Respondent

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JUDGES:	NEAVE, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 228
JUDGMENT APPEALED FROM:	[2013] VSC 548 (Dixon J)

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CRIMINAL LAW – Sentence – Theft – Obtaining financial advantage by deception – Deficiency in trust account – Solicitor – Total effective sentence of 5 years with non-parole period of 3 years – Application for extension of time to file application for leave to appeal against sentence – No error by sentencing judge – No different sentences should have been imposed – Application futile – Application refused.

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APPEARANCES:	Counsel	Solicitors
No oral hearing. By consent the matter was decided having regard to the written materials filed by the parties.

NEAVE JA
PRIEST JA

BEACH JA:

Introduction

On 3 June 2013, the applicant pleaded guilty to one charge of theft contrary to s 74(1) of the Crimes Act 1958, one charge of having a deficiency in a trust account contrary to s 3.3.21 of the Legal Profession Act 2004 and 12 charges of obtaining a financial advantage by deception contrary to s 82(1) of the Crimes Act. On 25 October 2013, following a plea hearing, a judge of the Trial Division sentenced the applicant as follows:

Charges on

Indictment

Offence

Maximum

Sentence

Cumulation

1. Theft [s 74(1) Crimes Act 1958] 10 years [s 74(1) Crimes Act 1958] 2 years

2.
Deficiency in trust account
[s3.3.21 Legal Profession Act

2004]
15 years [s3.3.21 Legal Profession Act 2004] 2 years 6 months

3. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months

4. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 3 months

5. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months

6. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 9 months

7. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 2 years

Charges on

Indictment

Offence

Maximum

Sentence

Cumulation

8. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months

9. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 3 years Base

10. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months

11. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months

12. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958]

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: [2014] VSCA 228
Decision Date: 17 September 2014

CaseChat Overview and Summary

Anthony Robert Coleman and The Queen were before the court in a matter concerning the sentencing of Coleman for theft, specifically obtaining financial advantage by deception, as a result of a deficiency in his trust account. Coleman, a solicitor, had been sentenced to a total effective term of five years imprisonment, with a non-parole period of three years. The court was asked to consider an application by Coleman for an extension of time to file an application for leave to appeal against his sentence. The legal issues before the court were whether there was any error in the sentence imposed by the primary judge, and whether a different sentence should have been imposed.

The court found that the sentencing judge had not erred in the sentence imposed. The sentencing judge had considered all relevant factors and had imposed a sentence that was neither manifestly excessive nor inadequate. The court found that there was no basis for a different sentence to be imposed. The application for an extension of time to file an application for leave to appeal against sentence was deemed futile and was therefore refused. The court found that there was no error by the sentencing judge and that the application should not have been made. The court did not consider it necessary to make any further orders.

Orders