Cay v The Queen

Case [2010] VSCA 292


SUPREME COURT OF VICTORIA

COURT OF APPEAL

MICHAEL CAY

S APCR 2008 0961

Appellant

v

THE QUEEN

Respondent

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JUDGES:

NETTLE, NEAVE and HARPER JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

21 October 2010

DATE OF JUDGMENT:

21 October 2010

MEDIUM NEUTRAL CITATION

[2010] VSCA 292

JUDGMENT APPEALED FROM:

R v Cay (Unreported, County Court of Victoria, Judge Hogan, 12 December 2008)

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CRIMINAL LAW – Sentence – Appellant convicted of multiple rolled up counts of obtaining property and financial advantage by deception – Whether a rolled up count encompassing individual offences falling within the definition of continuing criminal enterprise offence can constitute a single continuing criminal enterprise offence – Sentencing Act 1991, ss 6H, 6I – R v Beary (2004) 11 VR 151, applied – Total effective sentence not manifestly excessive – Limited evidence of remorse – Appropriate weight given to guilty plea, delay and prospects of rehabilitation – Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr C G Mandy Victoria Legal Aid
For the Crown Mr D Gurvich Commonwealth Director of Public Prosecutions

NETTLE JA:

  1. I invite Neave JA to deliver the first judgment.

NEAVE JA: 

  1. The appellant, Michael Cay, pleaded guilty to four counts of obtaining property by deception (counts 1, 2, 4 and 5) and one count of obtaining financial advantage by deception (count 3).  The maximum penalty for both these offences is 10 years’ imprisonment.[1]  After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant as follows:

    [1]Except where the court is sentencing a continuing criminal enterprise offender for a continuing criminal enterprise offence in which case Sentencing Act 1991, s 6I applies.  That issue is discussed below.

Count

Description

Term

Cumulation

1

Obtaining property by deception

15 months’ imprisonment

10 months

2

Obtaining property by deception

27 months’ imprisonment

Base sentence

3

Obtaining financial advantage by deception

9 months’ imprisonment

5 months

4

Obtaining property by deception

3 months’ imprisonment

2 months

5

Obtaining property by deception

6 months’ imprisonment

4 months

  1. This amounted to a total effective sentence of 4 years’ imprisonment.  The judge directed that the appellant serve a period of 3 years before being eligible for parole.  Orders were also made under s 86 of the Sentencing Act 1991 (‘Act’) requiring the appellant to compensate the victims for their loss.

  1. The appellant now appeals against the sentence imposed on count 2 and against the total effective sentence.

The circumstances of the offending

  1. The five counts related to funds obtained by the appellant, as the operator of a loan broking business, Jewel Financial Services Pty Limited (‘JFS’).

  1. Although the appellant was not a director of JFS, he was, at all relevant times, the effective manager of the company’s affairs.  The company had four directors.  Each of them was appointed following an approach by the appellant, who was disqualified from holding the position of director.  Her Honour said that she was satisfied that the appellant ‘gave instructions to the Directors who were unaware…

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Cay v The Queen [2010] VSCA 292
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[2010] VSCA 292
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CaseChat Overview and Summary

Cay was the appellant before the court, contesting the sentence handed down after his conviction for multiple counts of obtaining property and financial advantage by deception. The decision was rendered by the relevant appellate court. The central issue before the court was whether a count that was rolled up, containing individual offences that fit the description of a continuing criminal enterprise offence, could indeed constitute a single continuing criminal enterprise offence. This determination was critical to understanding the applicability of specific sections of the Sentencing Act 1991 and the precedent set by R v Beary (2004) 11 VR 151.

The court meticulously reviewed the nature of the offences and the statutory provisions at hand. It assessed the argument that the rolled-up count constituted a single continuing criminal enterprise offence, ultimately determining that the total effective sentence was not manifestly excessive. The court acknowledged the limited evidence of remorse presented by the appellant but gave due consideration to the weight of the guilty plea, the delay in the proceedings, and the appellant's prospects of rehabilitation. The decision balanced these factors to arrive at its conclusion.

In light of the analysis, the court dismissed the appeal, upholding the original sentence as appropriate. The judgment reflected a careful balance of statutory interpretation, legal precedent, and the specific circumstances of the case. The court's reasoning was grounded in a thorough understanding of the legal framework and the particular facts presented.

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Background to the litigation

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Evidence Before The Court

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