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DPP v Penny

DPP v Penny

Case [2012] VSCA 203 5 September 2012

Breach of Fiduciary Duty

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0048

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	v
BRUCE RICHARD PENNY	Respondent

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JUDGES	WEINBERG, HARPER JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 August 2012
DATE OF JUDGMENT	5 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 203
JUDGMENT APPEALED FROM	R v Penny [2012] VSC 25 (King J)

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CRIMINAL LAW — Sentencing — Theft and deception — Crown appeal — Respondent pleaded guilty to eight charges of theft, two charges of false accounting and nine charges of obtaining financial advantage by deception — Respondent an accountant and company secretary of company which conducted financing business —Company defrauded of just over $3 million — Respondent forwarded stolen sums to friend and close associate — Moneys lost in high risk ventures — Respondent’s offences committed over lengthy period — Substantial breach of trust — Respondent concealed offending by stating that sums stolen were in fact loans made in course of financing business — Total effective sentence of six years’ imprisonment with non-parole period of four years — Whether sentence manifestly inadequate — Plea conducted on erroneous basis that sum defrauded exceeded $7 million — Powerful evidence of good character — Unusual case in that respondent gained no personal financial benefit from offending — Current sentencing practices of limited utility — Sentence imposed merciful but within range — Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J R Champion SC with Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr B G Walmsley SC with Mr C T Carr	Martin Irwin & Richards

WEINBERG JA:

The respondent, Bruce Penny, pleaded guilty in the Supreme Court at Mildura to eight charges of theft, two charges of false accounting, and nine charges of obtaining financial advantage by deception.

On 7 February 2012, the respondent was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Theft
[Crimes Act 1958 (Vic) s 74]
10 years
3 years 18 months

2 False Accounting [Crimes Act 1958 (Vic) s 83]
10 years
12 months Nil

3 Theft
[Crimes Act 1958 (Vic) s 74] 20 years[1] 3 years Nil

4 Theft
[Crimes Act 1958 (Vic) s 74]
20 years
2 years 6 months Nil

5 Theft
[Crimes Act 1958 (Vic) s 74]
20 years
2 years 6 months Nil

6 Theft
[Crimes Act 1958 (Vic) s 74]
20 years
2 years 6 months Nil

7 Obtaining Financial Advantage by Deception
[Crimes Act 1958 (Vic) s 82]
20 years
2 years Nil

8 Obtaining Financial Advantage by Deception
[Crimes Act 1958 (Vic) s 82]
20 years
2 years Nil
[1] For charges 3-14 and 17-19, the respondent was sentenced as a continuing criminal enterprise offender under Part 2B of the Sentencing Act 1991 (Vic), and as such the maximum penalty for each of these offences is 20 years.

Charge on Indictment Offence Maximum Sentence Cumulation

9 Obtaining…

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 Penny

Details

AGLC: DPP v Penny [2012] VSCA 203
Case: [2012] VSCA 203
Decision Date: 5 September 2012

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Penny, the High Court of Australia was called upon to determine whether the sentence imposed on the respondent, who had been found guilty of multiple counts of theft and deception, was manifestly inadequate. The respondent, an accountant and company secretary, had pleaded guilty to eight counts of theft, two counts of false accounting, and nine counts of obtaining financial advantage by deception. The offences resulted in the misappropriation of just over $3 million from the company, which conducted financing business, and were committed over an extended period. The respondent forwarded the stolen funds to a friend and close associate, who lost the money in high-risk ventures.

The legal issue before the court was whether the sentence of six years' imprisonment, with a non-parole period of four years, was manifestly inadequate given the nature and extent of the respondent's offending. The Crown argued that the sentence was too lenient, while the respondent maintained that it was merciful and appropriate. The court had to consider the principles of sentencing in light of the respondent's substantial breach of trust, the concealment of the offending by falsely claiming that the stolen sums were loans made in the course of the financing business, and the powerful evidence of the respondent's good character. Furthermore, the court had to take into account that the respondent gained no personal financial benefit from the offending and that the plea had been conducted on the basis that the sum defrauded exceeded $7 million.

The court found that the sentence imposed was within the range of appropriate sentences for the respondent's offending, despite the unusual circumstances of the case. The court acknowledged that the current sentencing practices might be of limited utility in such unique cases, but ultimately concluded that the sentence was merciful and reflected the gravity of the respondent's breach of trust. The court dismissed the Crown's appeal, holding that the sentence was not manifestly inadequate.

No additional orders were made by the court.

Orders