Eagles v The Queen - [2012] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0095

NIK EAGLES
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, HARPER JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2012
DATE OF JUDGMENT:	23 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 102
JUDGMENT APPEALED FROM:	DPP v Eagles (Unreported, County Court of Victoria, Judge Parsons, 8 April 2011)

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CRIMINAL LAW – Sentencing – 59 dishonesty counts – Total effective sentence of seven years and ten months’ imprisonment imposed – Sentencing judge imposed mechanistic individual sentences and orders for cumulation – Failure to differentiate appropriately between different types of offences – Delay of almost six years between offending and sentencing – Totality principle infringed – Appeal allowed and appellant resentenced to total effective sentence of five years and ten months’ imprisonment, with non-parole period of three years and six months

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Patrick W Dwyer
For the Respondent	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HARPER JA:
HOLLINGWORTH AJA:

Introduction

On 16 August 2010, the appellant pleaded guilty to 59 counts of dishonesty, arising from various fraudulent acts between 2003 and 2005.

Following plea hearings on 14 and 16 December 2010, 10 and 25 March 2011, and 8 April 2011, the appellant was sentenced on 8 April 2011 as follows:

Count Offence Maximum Sentence Cumulation

1 Obtain financial advantage by deception (s 82 Crimes Act 1958) 10y 30 months 18 months

2 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

3 Obtain property by deception (s 81 Crimes Act 1958) 10y 2 months --

4 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

5 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

6 Obtain property by deception (s 81 Crimes Act 1958) 10y 12 months 2 months

7 Obtain property by deception (s 81 Crimes Act 1958) 10y 12 months 2 months

8 Obtain property by deception (s 81 Crimes Act 1958) 10y 2 months --

9 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

10 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

11 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

12 Obtain property by deception (s 81 Crimes Act 1958) 10y 2 months --

13 Make false document (s 83A(1) Crimes Act 1958) 10y 3 months --

14 Obtain property by deception (s 81 Crimes Act 1958) 10y 2 months --

15 Obtain property by deception (s 81 Crimes Act 1958) 10y 2 months --

16 Obtain property by deception (s 81 Crimes Act 1958)
(rolled up count) 10y 18 months 2 months

17 Obtain property by deception (s 81 Crimes Act 1958) 10y 6 months --

18 Obtain property by…

Count	Offence	Maximum	Sentence	Cumulation
1	Obtain financial advantage by deception (s 82 Crimes Act 1958)	10y	30 months	18 months
2	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
3	Obtain property by deception (s 81 Crimes Act 1958)	10y	2 months	--
4	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
5	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
6	Obtain property by deception (s 81 Crimes Act 1958)	10y	12 months	2 months
7	Obtain property by deception (s 81 Crimes Act 1958)	10y	12 months	2 months
8	Obtain property by deception (s 81 Crimes Act 1958)	10y	2 months	--
9	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
10	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
11	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
12	Obtain property by deception (s 81 Crimes Act 1958)	10y	2 months	--
13	Make false document (s 83A(1) Crimes Act 1958)	10y	3 months	--
14	Obtain property by deception (s 81 Crimes Act 1958)	10y	2 months	--
15	Obtain property by deception (s 81 Crimes Act 1958)	10y	2 months	--
16	Obtain property by deception (s 81 Crimes Act 1958) (rolled up count)	10y	18 months	2 months
17	Obtain property by deception (s 81 Crimes Act 1958)	10y	6 months	--
18	Obtain property by…

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 Eagles v The Queen

Details

AGLC: Eagles v The Queen [2012] VSCA 102
Case: [2012] VSCA 102
Decision Date: 23 May 2012

CaseChat Overview and Summary

The case of Eagles v The Queen involved a defendant who was convicted on 59 counts of dishonesty offences. The defendant was sentenced to a total effective sentence of seven years and ten months’ imprisonment by the sentencing judge. The judge imposed individual sentences and orders for cumulation in a mechanistic manner, without appropriately differentiating between the various types of offences. The delay of almost six years between the time of the offending and the sentencing also played a significant role in the appeal. The defendant argued that the sentencing judge failed to apply the totality principle, which considers the overall impact of multiple sentences rather than treating each sentence in isolation.

The primary legal issue before the court was whether the sentencing judge had correctly applied the principles of sentencing, particularly the totality principle, in determining the appropriate sentence for the defendant. The court also had to consider whether the delay between the offending and the sentencing had any impact on the appropriate sentence to be imposed. The court was required to decide if the sentences imposed by the sentencing judge were proportionate to the offences committed and whether the cumulation of sentences was appropriate in the circumstances.

The court found that the sentencing judge had not appropriately differentiated between the different types of offences and had imposed individual sentences in a mechanistic manner. The court held that the totality principle had been infringed by the sentencing judge, who failed to consider the overall impact of the multiple sentences. The court also found that the significant delay between the offending and the sentencing had an impact on the appropriate sentence to be imposed. The appeal was allowed, and the defendant was resentenced to a total effective sentence of five years and ten months’ imprisonment, with a non-parole period of three years and six months. The court emphasised the importance of appropriately applying the totality principle and considering the overall impact of multiple sentences when determining an appropriate sentence.

Orders