Boyton v The Queen

[2016] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0198

JOASH BOYTON

v

THE QUEEN

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JUDGES:	WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2016
DATE OF JUDGMENT:	22 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 13
JUDGMENT APPEALED FROM:	[2015] VCC 1341 (Judge McInerney)

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CRIME – Sentence – Multiple electronic commerce-based fraud offences, identification fraud offences and perjury offence – Total effective sentence of four years nine months’ imprisonment with two years six months’ non-parole period imposed – Whether manifestly excessive – Applicant between 17 and 20 years of age at time of offending – Full restitution of monies lost made by applicant – Excellent prospects of rehabilitation – Crown conceded manifest excess – Application for leave to appeal granted – Appeal allowed – Re-sentenced to one year imprisonment with three year Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tiwana	Dribben & Brown
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

1. On 12 August 2015 the applicant pleaded guilty to 15 charges of obtaining financial advantage by deception, three charges of obtaining property by deception, six charges of attempting to obtain financial advantage by deception, one charge of attempting to obtain property by deception, one charge of perjury, one charge of conspiracy to cheat and defraud, three charges of using identification information, one charge of supplying identification information, one charge of possession of identification information, one charge of making identification information, and one charge of possession of data with intent to commit a serious computer offence.  On 22 September 2015 he was sentenced in the County Court on these 34 offences to a total effective term of imprisonment of four years and nine months.  A non-parole period of two years six months was fixed.  Annexed to these reasons is a schedule setting out the sentences imposed for each of the offences and other orders which were made.

1. At the time of sentence the applicant was 23 years of age.  He had no prior convictions.  He committed the offences while aged between 17 and 20.  The police investigation was extensive and lengthy as a result of the complexity of the offending.  The offending involved sophisticated use of computers and the internet, and extensive use of stolen credit card data obtained through the internet.

1. The applicant now seeks leave to appeal on the ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.  The application was argued and heard on the basis that if leave were granted the appeal itself would be determined forthwith.

1. Before turning to the circumstances of the offending it is useful to begin by outlining the applicant’s personal background.

Personal background

1. The sentencing judge described the applicant as having had a ‘shackled upbringing’.[1]  His parents were members of a religious group and their beliefs meant that the applicant’s childhood was socially isolated.  He was home schooled.  He had limited friends.  He was…