DPP (Cth) v Cornish - [2012] VSCA 45

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0229

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
	Appellant
v
BRIAN ROBERT CORNISH	Respondent

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JUDGES:	NEAVE and HARPER JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2012
DATE OF JUDGMENT:	19 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 45
JUDGMENT APPEALED FROM:	DPP v Cornish (Unreported, County Court of Victoria, Judge Sexton, 26 August 2011)

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CRIMINAL LAW – Director’s appeal – Sentence – One charge of conspiring to dishonestly cause a risk of loss to a Commonwealth entity (Australia Post) and four charges of dishonestly causing a risk of loss to Australia Post – Criminal Code (Cth), ss 135.1(5) and 135.4(5) – Pleas of guilty – Total effective sentence of three years’ imprisonment – Whether sentencing judge erred: (i) in her description of charge one, (ii) in finding the respondent trusted his co-conspirators, (iii) in failing to find that the respondent knew that the conduct would cause actual loss to Australia Post and (iv) in finding that the respondent did not benefit from the offence – Whether sentencing judge erred in her use of evidence given by a psychologist – Role of respondent’s willingness to co-operate as a mitigating factor – Whether sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr D J Lane	Office of Public Prosecutions (Cth)
For the Respondent	Mr L C Carter	Slades & Parsons

NEAVE JA
HARPER JA
HOLLINGWORTH AJA:

The plea and the sentences which followed

This is an appeal brought by the Commonwealth Director of Public Prosecutions against sentences imposed in the County Court of Victoria on 26 August 2011. The respondent pleaded guilty to one charge of conspiring to dishonestly cause a risk of loss to a Commonwealth entity, the Australian Postal Corporation (‘Australia Post’), contrary to sub-s 135.4(5) of the Criminal Code (Cth) and to four charges of dishonestly causing a risk of loss to Australia Post contrary to sub-s 135.1(5) of the Code. The respondent was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Conspire to dishonestly cause a risk of loss to a Commonwealth entity 10 years’ imprisonment and/or $66,000 fine 2 years 7 months Base sentence

2 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 3 months To be served concurrently with Counts 3-5 but cumulatively upon Count 1

3 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 5 months To be served concurrently with Counts 2, 4 and 5 but cumulatively upon Count 1

4 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 5 months To be served concurrently with Counts 2, 3 and 5 but cumulatively upon Count 1

5 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 1 month To…

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 DPP (Cth) v Cornish

Details

AGLC: Director of Public Prosecutions (Cth) v Cornish [2012] VSCA 45
Case: [2012] VSCA 45
Decision Date: 19 March 2012

CaseChat Overview and Summary

The Director of Public Prosecutions for the Commonwealth of Australia sought an appeal against the sentence of a respondent, Mr. Cornish, who had pleaded guilty to a charge of conspiring to cause a risk of loss to a Commonwealth entity and four charges of causing a risk of loss to Australia Post. The case was heard in the High Court of Australia, which was asked to determine if the sentencing judge had erred in various aspects of her judgment, including her description of the charges, her findings regarding the respondent's knowledge of the conduct, and her consideration of the evidence provided by a psychologist. Additionally, the appeal addressed whether the sentence was manifestly inadequate and if the respondent's willingness to cooperate should have been considered as a mitigating factor.

The legal issues before the court encompassed whether the sentencing judge correctly interpreted the charges and applied the relevant statutory provisions under the Criminal Code. The court also examined whether the sentencing judge had erred in her assessment of the respondent's state of mind, specifically regarding his trust in co-conspirators and his awareness of the potential for actual loss. Furthermore, the court scrutinized whether the sentencing judge appropriately weighed the evidence from a psychologist and if she overlooked the respondent's willingness to cooperate as a mitigating factor. Finally, the court considered if the total effective sentence of three years' imprisonment was manifestly inadequate.

The High Court found that the sentencing judge had erred in several respects. Firstly, the court noted that the description of the conspiracy charge was incorrect, which had implications for the sentencing process. Secondly, the court observed that the sentencing judge had misunderstood the respondent's relationship with his co-conspirators, particularly concerning trust. The court also determined that the sentencing judge had failed to adequately consider the respondent's knowledge of the potential for actual loss. Moreover, the court found that the sentencing judge had not properly assessed the evidence from the psychologist and had overlooked the respondent's willingness to cooperate as a mitigating factor. Consequently, the court concluded that the sentence was manifestly inadequate. The appeal was allowed, and the respondent was re-sentenced.

The final orders of the court included a re-sentencing of the respondent, with the High Court directing the lower court to consider the errors identified in the appeal. The court emphasized the need for a more thorough examination of the respondent's state of mind, the potential for actual loss, and the mitigating factor of cooperation. The re-sentencing was to be carried out with these considerations in mind, ensuring a fair and just outcome in accordance with the law.

Orders