Cay v The Queen - [2010] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MICHAEL CAY	S APCR 2008 0961
MICHAEL CAY	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:

I invite Neave JA to deliver the first judgment.

NEAVE JA:

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

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.

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

The circumstances of the offending

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

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…

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 Cay v The Queen

Details

AGLC: Cay v The Queen [2010] VSCA 292
Case: [2010] VSCA 292
Decision Date: 21 October 2010

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.

Orders