SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0759 |
| ROBERT EWEN DAY |
| v |
| 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:…
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- AGLC
- Day v The Queen [2011] VSCA 243
- Case
- [2011] VSCA 243
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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