DPP v Toma - [2007] VSCA 315

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 273 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
MARTIN TOMA

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JUDGES:	VINCENT, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2007
DATE OF JUDGMENT:	6 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 315

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CRIMINAL LAW – Sentence – Crown Appeal – Pleaded guilty to 11 counts of perjury and 11 counts of obtaining financial advantage by deception – Used false statutory declarations to avoid traffic, parking and toll infringements – Large number of dishonesty priors – Sentenced to 15 months’ imprisonment, wholly suspended for 15 months – Whether sentence manifestly inadequate – Appeal allowed – Re-sentenced to 26 months’ imprisonment, wholly suspended for three years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr R Richter QC	Rob Melasecca Barristers & Solicitors

VINCENT JA:

I invite Neave JA to deliver the first judgment.

NEAVE JA:

The respondent, Martin Toma, pleaded guilty to 11 counts of perjury by swearing a false statement and 11 counts of obtaining financial advantage by deception. After hearing his plea in mitigation of sentence a judge of the County Court sentenced the respondent to six months’ imprisonment on each of the counts on the presentment, and made orders for cumulation which resulted in a total effective sentence of 15 months’ imprisonment. This sentence was wholly suspended for a period of 15 months. This is an appeal by the Director of Public Prosecutions against that sentence.[1]
[1]Under Crimes Act 1958, s 567A.

Background

The background to these offences is as follows. Mr Brigido Ramirez lost his wallet at some time in 2003 while dining at a café in Swanston Street. The wallet contained his drivers licence, which showed his residential address and date of birth, as well as items containing other personal details. Shortly after losing his wallet, Mr Ramirez replaced his licence with another bearing the same details.

In 2005, Mr Ramirez received in the mail a number of speeding, toll zone and parking fines which he had not incurred. Enquiries made by him and by the compliance authority, revealed that these infringement notices had been issued to the registered owners of various cars who had falsely nominated the complainant as the infringing driver. Further enquiries revealed that the registered owners of these vehicles were all known to each other.

The respondent, Martin Toma, is aged 29 and was aged 27 at the time of committing the offences. His offences occurred in the following circumstances.

On 28 January 2005 the respondent went to Broadmeadows Police Station and produced four City of Melbourne parking infringement notices and two traffic camera speeding infringement notices, which he had incurred. The respondent produced the notices to Constable Coles, a member of the Victorian Police Force authorised to witness statutory declarations under s 107A(1)(j) of the Evidence Act 1958. He then completed the statutory declaration on the rear of each of…

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 Toma

Details

AGLC: Director of Public Prosecutions v Toma [2007] VSCA 315
Case: [2007] VSCA 315
Decision Date: 6 December 2007

CaseChat Overview and Summary

In the case of DPP v Toma, the respondent, Toma, was charged with multiple instances of perjury and obtaining financial advantage by deception. He had admitted to using false statutory declarations in an effort to evade traffic, parking, and toll infringements. The prosecution appealed the sentence imposed on Toma by the lower court, arguing that the sentence was manifestly inadequate given the nature and extent of his criminal conduct, as well as his significant history of dishonesty. The appeal was heard by the relevant appellate court.

The central legal issue before the court was whether the original sentence was manifestly inadequate in light of the respondent's criminal conduct and history. The prosecution argued that the sentence did not reflect the seriousness of the offences, nor did it adequately deter the respondent or others from engaging in similar conduct. The respondent, on the other hand, contended that the original sentence was appropriate and should be upheld. The court was tasked with determining whether the sentence imposed was sufficiently severe to achieve the aims of punishment, deterrence, and denunciation, and if not, what an appropriate sentence would be.

The court found that the original sentence was manifestly inadequate. The respondent's use of false statutory declarations to avoid infringements was a serious breach of the justice system, and his extensive history of dishonesty indicated a pattern of criminal behaviour. The court emphasised the importance of deterrence and denunciation in sentencing, and concluded that the original sentence did not sufficiently reflect the gravity of the respondent's offences. As such, the appeal was allowed, and the respondent was re-sentenced to 26 months’ imprisonment, wholly suspended for three years. This new sentence was deemed to be more appropriate in light of the respondent's criminal conduct and history, and was intended to effectively deter the respondent and others from engaging in similar behaviour in the future.

Orders