Donovan v The Queen - [2010] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

STEVEN DONOVAN	S APCR 2009 0641
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 June 2010
DATE OF JUDGMENT:	28 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 169
JUDGMENT APPEALED FROM:	R v Donovan, (Unreported, County Court of Victoria, Judge Rozenes, 19 February 2009

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CRIMINAL LAW – Sentence – Offences of dishonesty – Parity – Differences in the roles and antecedents of the co-offenders - Error as to maximum sentence – Error could not have had any impact upon the sentence – Sentence of three months’ imprisonment on a count of opening an account by a false statement and a total effective sentence of 32 months’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Victoria Legal Aid (Melbourne)
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of making false documents with the intention of inducing another person to accept the documents to be genuine and thereby causing prejudice to that other person, (count 1); a count of using false documents with the intention of inducing another person to accept them as genuine and thereby acting to that other person's prejudice, (count 2); a count of causing an unauthorised computer function, (count 3); a count of dishonestly obtaining property by deception, (count 4); four counts of dishonestly obtaining a finance advantage by deception, (counts 5, 8, 10 and 15); three counts of attempting to dishonestly obtain a financial advantage by deception, (counts 6, 7 and 9); a count of dishonestly obtaining property by a false representation, (count 11); a count of opening a bank account in a false name, (count 12); a count of attempting to open a bank account in a false name, (count 13); and a count dealing with the proceeds of crime, (count 14).

After a plea, the appellant was sentenced to be imprisoned for a term of nine months on each of counts 1 and 2; for a term of three months on each of counts 3 and 15; for a term of 12 months on each of counts 4 and 11; for a term of 18 months on count 5; for a term of four months on each of counts 6, 7, 9, 12, 13 and 14; and for a term of eight months on each of counts 8 and 10. With a measure of cumulation, the total effective sentence was 32 months' imprisonment. The sentencing judge fixed a 20 months' imprisonment before the appellant was to be eligible for parole.

A single judge of this Court granted the appellant leave to appeal against his sentence.

The offences took place over a period of some 12 months. Using sophisticated techniques, the appellant and a co-offender, Steven Marchingo, created false identifies and defrauded a number…

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 Donovan v The Queen

Details

AGLC: Donovan v The Queen [2010] VSCA 169
Case: [2010] VSCA 169
Decision Date: 28 June 2010

CaseChat Overview and Summary

The case of Donovan v The Queen involved the appellant, Donovan, who was found guilty of various offences, including opening an account by a false statement and other related charges. The appellant was sentenced to a total effective term of imprisonment, which he challenged as being manifestly excessive. The appeal was heard in the High Court of Australia, which was tasked with determining whether the sentence imposed was appropriate given the nature of the offences and the circumstances of the case.

The central legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. The court had to consider the principles of parity, which require that sentences imposed on co-offenders for similar offences be comparable unless there are significant differences in their roles and antecedents. Additionally, the court needed to address whether an error by the trial judge in calculating the maximum penalty for one of the offences had any impact on the overall sentence.

The court found that despite the error in calculating the maximum penalty for the offence of opening an account by a false statement, the error did not influence the actual sentence imposed. The trial judge had clearly considered the seriousness of the offences, the need for general deterrence, and the principles of parity. The court concluded that the sentence of three months’ imprisonment for the false statement offence and a total effective sentence of 32 months’ imprisonment was not manifestly excessive. The sentence was considered appropriate given the circumstances and the need to uphold the principles of sentencing.

The High Court dismissed the appeal, affirming the trial judge's sentencing decision. The court's decision highlights the importance of considering the overall context of the offences and the principles of sentencing when determining the appropriateness of a sentence. The court's reasoning underscored the need to balance the seriousness of the offences, the need for deterrence, and the principle of parity in sentencing decisions.

Orders