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Day v The Queen

Day v The Queen

Case [2011] VSCA 243 15 August 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0759

ROBERT EWEN DAY

THE QUEEN

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JUDGES	NETTLE and NEAVE JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 August 2011
DATE OF JUDGMENT	15 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 243
JUDGMENT APPEALED FROM	[2009] VSC 266 (Forrest J)

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CRIMINAL LAW – Appeal – Sentence – Guilty plea – Total of 182 counts of obtaining property by deception, obtaining financial advantage by deception, theft, and making and using false documents – Total effective sentence 11 years with a non parole period of eight years – Whether delay given sufficient weight in sentencing where appellant contributed to delay – Whether judge erred by imposing identical individual sentences for counts where the amounts appropriated were different – Whether judge erred in sentencing the appellant as a non-CCE offender within the meaning of s 6A(1) of the Sentencing Act 1991 – Whether such error vitiated the judge’s sentencing discretion – Warning under s 281(3) of the Criminal Procedure Act 2009 that allowing the appeal may lead to a more severe sentence – Appeal abandoned.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Tony Hargreaves & Partners
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an appeal, with leave, against a total effective sentence of 11 years’ imprisonment with a non-parole period of eight years, imposed on the appellant on 31 July 2009 after pleading guilty to 182 charges of theft, obtaining property by deception, obtaining financial advantage by deception, and summary charges of misleading and deceptive conduct contrary to s 19 the Fair Trading Act 1999 (Vic), as follows:

· Obtaining property by deception: Counts 1–4, 7–28, 30–36, 38–54, 56–120, 123–154, 156–162, 164–182 (173 counts);

· Obtaining a financial advantage by deception: Counts 55, 121–122, 155, 163 (5 counts);

· Making a false document: Count 5;

· Using a false document: Count 6;

· Theft: Counts 29 and 37;

· Uplifted Summary Charges, Counts 1—6: Breach of s 19 of the Fair Trading Act 1999 (Vic).

The facts

At the time of sentencing, the appellant was 65 years’ old. He is married and has three adult children. He was educated to Year 10. After working for the Commercial Bank of Australia for some ten years, he moved to the United Kingdom and while working there acquired skills in conveyancing.

He returned to Australia after three years in the United Kingdom and, in 1972, married and began work as a law clerk in Geelong. In 1978 he began work for a local solicitor, Mr Philip Boston, and on 31 August 1988 he set up Grove Conveyancing Services (‘GCS’) in Mr Boston’s offices.

By 2002, the appellant was the driving force of GCS and, to outward appearances, the business was flourishing. By the time of its collapse in October 2004, it was operating from two offices in Geelong and Werribee.

GCS operated four bank accounts:…

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

AGLC: Day v The Queen [2011] VSCA 243
Case: [2011] VSCA 243
Decision Date: 15 August 2011

CaseChat Overview and Summary

The appellant, Day, was convicted of a total of 182 counts of obtaining property by deception, obtaining financial advantage by deception, theft, and making and using false documents. The appellant appealed against the total effective sentence of 11 years imprisonment, with a non-parole period of eight years, imposed by the trial judge in the Supreme Court of Victoria. The appeal raised several legal issues, including whether the trial judge gave sufficient weight to the delay caused by the appellant, whether the judge erred in imposing identical individual sentences for counts where the amounts appropriated were different, and whether the judge erred in sentencing the appellant as a non-CCE offender within the meaning of section 6A(1) of the Sentencing Act 1991. The court also considered the warning under section 281(3) of the Criminal Procedure Act 2009 that allowing the appeal may lead to a more severe sentence.

The court found that the trial judge had given appropriate weight to the delay caused by the appellant, despite the appellant's contribution to that delay. The court also held that the trial judge did not err in imposing identical individual sentences for counts where the amounts appropriated were different, as the judge was entitled to consider the seriousness of the offending as a whole. The court further found that the trial judge did not err in sentencing the appellant as a non-CCE offender, and that such error, if any, did not vitiate the judge's sentencing discretion. The court also noted the warning under section 281(3) of the Criminal Procedure Act 2009 that allowing the appeal may lead to a more severe sentence.

Ultimately, the appeal was abandoned by the appellant, and the orders of the Supreme Court of Victoria were upheld. The appellant's conviction and sentence remained unchanged, and the appeal did not result in a more severe sentence. The court found that the trial judge had exercised their sentencing discretion appropriately, taking into account all relevant factors, and that the appeal did not provide a basis for altering the sentence. The orders of the Supreme Court of Victoria were therefore affirmed, and the appeal was dismissed.

Orders