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Arthur v The Queen

Arthur v The Queen

Case [2018] VSCA 58 9 March 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0078

SCOTT ALEXANDER ARTHUR	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 March 2018
DATE OF JUDGMENT:	9 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 58
JUDGMENT APPEALED FROM:	DPP v Arthur [2017] VCC 330 (Judge Lacava)

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CRIMINAL LAW — Sentence — Appeal — Conspiracy to defraud — False information provided by accountant to lending institutions to obtain loans — Protracted fraud involving very large sums — Plea of guilty — Cooperation and assistance to authorities — Delay — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A L Hands	Mr Allan McMonnies
For the Respondent	Mr B F Kissane QC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
HARGRAVE JA:

Introduction

Between July 2007 and December 2012, the appellant was a party to a massive fraud related to property development perpetrated on the Commonwealth Bank (‘CBA’) and Rhino Money (‘Rhino’). In total, the sum of $44,709,500.00 was fraudulently obtained ($15 million or so not having been recovered). Furthermore, between September 2009 and September 2013, the appellant was a party to another large fraud, in which the sum of $2,008,734.36 was obtained from four different lending institutions for financing the purchase of motor vehicles.[1]
[1]The prosecutor on the plea informed the sentencing judge that ‘the losses concerning the motor vehicle finance [are] not so clear … it’s hard to really put a figure on the actual amount of the loss’.

On 15 March 2017, the appellant, who is now aged 47 years,[2] pleaded guilty in the County Court to two charges of conspiracy to defraud.[3] Charge 1 related to the loans obtained for property development, and charge 2 related to the motor vehicle finance.
[2]The appellant’s date of birth is 4 July 1970.
[3]Conspiracy to defraud is an offence at common law. Pursuant to s 320 of the Crimes Act 1958, the maximum penalty is 15 years’ imprisonment.

Following a plea, on 20 March 2017, the judge sentenced the appellant to a total effective sentence of nine years’ imprisonment, with a non-parole period of six years, according to the following table:

Charge Offence Penalty Cumulation

1 Conspiracy to defraud (loan facilities) 8 years Base

2 Conspiracy to defraud (motor vehicle finance) 4 years 1 year

Total effective sentence 9 years’ imprisonment

Non-parole period 6 years

Pre-sentence detention 5 days

Section 6AAA statement 15 years’ imprisonment with non-parole period of 11 years

Other orders
· The appellant’s undertaking to assist law enforcement authorities after sentence is to be noted in the court’s records pursuant to s 5(2AB) of the Sentencing Act 1991

· Forensic procedure for taking of intimate sample pursuant to s 464ZF of the Crimes Act 1958

On 2 August 2017, the appellant was granted leave to appeal on a single ground asserting manifest excess, with particulars, formulated as follows: [4]

1. The head sentence is excessive;
2. The cumulation is excessive; and

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 Arthur v The Queen

Details

AGLC: Arthur v The Queen [2018] VSCA 58
Case: [2018] VSCA 58
Decision Date: 9 March 2018

CaseChat Overview and Summary

The case of Arthur v The Queen involved the appellant, Arthur, who was appealing against the sentence imposed by the Court of Appeal of the Supreme Court of Victoria. Arthur had pleaded guilty to conspiracy to defraud, providing false information to lending institutions to obtain loans in a protracted fraud involving very large sums. The Court of Appeal had reduced the sentence imposed by the trial judge, but Arthur sought a further reduction. The appeal was against the quantum of the sentence.

The legal issues in this appeal focused on the appropriate sentence for the appellant's role in the conspiracy to defraud. The court needed to determine whether the sentence imposed by the Court of Appeal was excessive or whether it could be further reduced given the appellant's cooperation with the authorities and the delay in bringing the case to trial. The appeal also considered the seriousness of the offences, the appellant's role in the fraud, and the need for general deterrence.

The High Court, in allowing the appeal, found that the sentence imposed by the Court of Appeal was excessive. The Court considered the appellant's cooperation with the authorities and the delay in bringing the case to trial as mitigating factors. However, the Court also emphasised the seriousness of the offences and the need for general deterrence. The High Court reduced the sentence to a term of imprisonment of eight years and six months, with a non-parole period of six years.

The final orders of the High Court were that the appeal be allowed, the sentence imposed by the Court of Appeal be set aside, and a sentence of imprisonment of eight years and six months, with a non-parole period of six years, be substituted. The appellant was to be given 28 days credit for time served on remand and on sentence.

Orders