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DPP v Munn

DPP v Munn

Case [2019] VSCA 267 21 November 2019

Obtaining Financial Advantage by Deception

Sentencing

Crown Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0147

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
BRIAN MUNN	Respondent

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JUDGES:	BEACH, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2019
DATE OF JUDGMENT:	21 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 267
JUDGMENT APPEALED FROM:	[2019] VCC 993 (Judge Hogan)

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CRIMINAL LAW – Sentence – Crown appeal – Three rolled-up charges of obtaining financial advantage by deception – Labour hire company’s services to value of $1,959,744.20 obtained by false representations that payment would be made and false timesheets – Total effective sentence of 3 years’ imprisonment with non-parole period of 1 year and 6 months – Whether sentence manifestly inadequate – Sentence very lenient but not manifestly inadequate due to unique circumstances of case – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC with Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D D Gurvich QC with Mr T Bourbon	James Dowsely & Associates

BEACH JA
KYROU JA
T FORREST JA:

Introduction and summary

On 23 July 2018, the respondent pleaded guilty to the charges set out in the below table and on 25 June 2019 he was sentenced in accordance with that table.[1]
[1]DPP v Munn [2019] VCC 933 (‘Sentencing remarks’).

Charge	Offence	Maximum	Sentence	Cumulation
1	Obtaining financial advantage by deception [s 82(1) Crimes Act 1958]	10 years	1 year, 2 months	10 months
2	Obtaining financial advantage by deception	10 years	2 years	Base
3	Obtaining financial advantage by deception	10 years	5 months	2 months
Total effective sentence: 3 years’ imprisonment
Non parole period: 1 year and 6 months
Pre-Sentence detention declaration: 74 days
6AAA Statement: 4 years and 6 months’ imprisonment with non-parole period of 3 years

The respondent carried on a business through corporate entities whereby he supplied traffic control services to clients. Between 14 February 2013 and 14 October 2014, he dishonestly obtained from a labour hire company, AB Contract Packing Pty Ltd (‘AB’), staff to perform the traffic control services by making false representations that it would be paid for the hiring of the staff. He also submitted false time sheets to AB.

Each of the charges is a rolled-up charge involving multiple dishonest transactions during the offending period. The total value of the labour hire services that the respondent obtained from AB in respect of the charged conduct was $1,959,744.20, only approximately $404,000 of which was paid by him.

The Director has appealed against the sentence on the sole ground of manifest inadequacy. The ground is expressed in these terms:

The sentences imposed on each charge, the orders for cumulation on charges 1 and 3, the total effective sentence and the non-parole period are manifestly inadequate.
Particulars
The sentences imposed indicate that the learned sentencing judge
(a)Failed to have sufficient regard to the objective gravity of the offending;
(b)Failed to have sufficient regard to the principles of just punishment,…

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 v Munn

Details

AGLC: Director of Public Prosecutions v Brian Munn [2019] VSCA 267
Case: [2019] VSCA 267
Decision Date: 21 November 2019

CaseChat Overview and Summary

The case of DPP v Munn involved the Director of Public Prosecutions (DPP) appealing against the sentence imposed on Munn, who had obtained financial advantage by deception. Munn had obtained services from a labour hire company, valued at $1,959,744.20, through false representations and fraudulent timesheets. The trial judge sentenced Munn to a total effective term of three years' imprisonment, with a non-parole period of one year and six months. The primary legal issue before the court was whether the sentence was manifestly inadequate given the gravity of the offence and the amount defrauded.

The court considered the unique circumstances of the case, including Munn's genuine expressions of remorse, his otherwise unblemished criminal record, and the substantial amount defrauded. The court found that while the sentence was lenient, it was not manifestly inadequate. The unique circumstances justified the leniency, particularly given Munn's remorse and the absence of prior criminal history. The court also highlighted the importance of deterrence and denunciation, but balanced these with considerations of rehabilitation and proportionality.

The appeal was ultimately dismissed by the court, which held that the sentence, though lenient, was appropriate in light of the mitigating factors presented. The court affirmed that while the offence was serious, the totality of the circumstances warranted the imposed sentence. The decision underscores the need for a balanced approach in sentencing, taking into account both the severity of the offence and the individual circumstances of the offender.

Orders