Friel v The Queen
[2018] VSCA 48
•5 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0098
| JAKE MATTHEW FRIEL | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 March 2018 |
| DATE OF JUDGMENT: | 5 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 48 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1727 (Judge Ryan) |
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CRIMINAL LAW – Appeal – Sentence – Eight charges of obtaining property by deception, 12 charges of attempting to obtain property by deception, one charge of possession of another person’s information – Total effective sentence of four years and four months’ imprisonment with non-parole period of three years – Whether sentence manifestly excessive – Principles of totality – Continuing criminal enterprise provisions – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J D Kantor | Mike Wardell |
| For the Crown | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
I will invite Hargrave JA to deliver the first judgment.
HARGRAVE JA:
Jake Friel (‘Friel’) appeals against a sentence imposed on him in the County Court on 18 November 2016. The following description of facts and contentions on appeal is taken substantially from the reasons of Tate JA granting leave to appeal.[1]
[1]Friel v The Queen [2017] VSCA 209 [1]–[33], [35]–[36], [39]–[40].
Friel pleaded guilty to eight charges of obtaining property by deception, 12 charges of attempting to obtain property by deception and one charge of possessing another person’s identification information. Two of the charges of obtaining property by deception (charges 2 and 13 on the indictment) are continuing criminal enterprise (‘CCE’) offences carrying a higher maximum. Two of the offences of attempting to obtain property by deception (charges 7 and 20) are also CCE offences attracting a higher maximum. Friel also pleaded guilty to a number of related summary offences including driving a motor vehicle during a period of disqualification, proceeding through a red traffic light, failing to produce a permit to drive and stating a false name and address.
Friel was sentenced as follows:[2]
[2]DPP v Friel [2016] VCC 1727 (‘Sentencing Reasons’).
Charge on Indictment Offence Maximum Sentence Cumulation 1 Obtain property [a trailer valued at $2,000] by deception Crimes Act 1958 s 81(1) 10 years 6 months 1 month 2 Obtain property [$66,000] by deception Crimes Act 1958 s 81(1) 20 years (CCE offence) 18 months Base 3 Attempt to obtain property [$5,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month
Charge on Indictment Offence Maximum Sentence Cumulation 4 Attempt to obtain property [$1,500] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 5 Attempt to obtain property [$37,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 6 Attempt to obtain property [$37,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 7 Attempt to obtain property [$90,000] by deception Crimes Act 1958 s 321M and s 81(1) 10 years (CCE offence) 9 months 2 months 8 Obtain property [$4,500] by deception Crimes Act 1958 s 81(1) 10 years 8 months 2 months 9 Attempt to obtain property [$40,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 10 Obtain property [$34,500] by deception Crimes Act 1958 s 81(1) 10 years 12 months 3 months 11 Obtain property [$27,000] by deception Crimes Act 1958 s 81(1) 10 years 12 months 3 months 12 Obtain property [$27,000] by deception Crimes Act 1958 s 81(1) 10 years 12 months 3 months 13 Obtain property [$69,000] by deception Crimes Act 1958 s 81(1) 20 years (CCE) 18 months 4 months 14 Attempt to obtain property [$30,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 15 Possession of another’s identification information Crimes Act 1958 s 192C 3 years 6 months 1 month 16 Attempt to obtain property [$28,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 17 Obtain property [$25,000] by deception Crimes Act 1958 s 81(1) 10 years 12 months 3 months 18 Attempt to obtain property [$25,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 19 Attempt to obtain property [$28,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month 20 Attempt to obtain property [$57,000] by deception Crimes Act 1958 s 321M and s 81(1) 10 years (CCE) 9 months 2 months 21 Attempt to obtain property [$30,000] by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month
Total Effective Sentence: 4 years 4 months’ imprisonment Non-Parole Period: 3 years Pre-sentence detention declared: 277 days 6AAA Statement: 6 years’ imprisonment, non-parole period of 4 years Other relevant orders:
Stay of payment of three months ordered
Forensic sample order granted pursuant to s464ZF of the Crimes Act 1958
Related summary offences were the subject of one month terms of imprisonment (wholly concurrent) and fines.
Friel was granted leave to appeal on three grounds of appeal:
(1) Manifest excess — the individual sentences on charges 1, 3, 4, 8 and 15 are manifestly excessive.
(2) Specific error — the judge did not refer to the principle of totality at any point in his reasons for sentence.
(3) Specific error — the judge did not explain how (or whether) he had taken into account the continuing criminal enterprise provisions of the Sentencing Act 1991.[3]
[3]Sentencing Act 1991 pt 2B, ss 6G–6J, sch 1A.
Circumstances of the offending
The judge noted the Crown’s submission that Friel’s offending was ‘persistent, planned, and sophisticated’,[4] warranting an immediate term of imprisonment. The total value of the property obtained by deception was $256,158.29, while the total amount involved in the attempts was $409,023.[5] With the exception of the offending relating to the first charge of obtaining property by deception, which took place on 25 July 2015, the balance of the offending occurred over a period of approximately 11 weeks, between 18 November 2015 and 8 February 2016, while Friel was serving a Community Correction Order (‘CCO’). He also committed the related summary offences at this time. The judge found this to be an aggravating feature of Friel’s offending.[6]
[4]Sentencing Reasons [24].
[5]Ibid [8].
[6]Ibid [7].
Moreover, Friel committed the offences giving rise to charges 16 to 21 whilst he was on bail. He had been intercepted by police on 28 December 2015 and charged with charge 15 on the indictment (possession of another’s identification information) and granted bail. Charges 16 to 21 occurred after that date. The judge held that this was an additional aggravating feature of that offending.[7] Friel was arrested again on 15 February 2016 and remained in custody thereafter.
[7]Ibid.
The judge further found that Friel’s offending was ‘rooted in your abuse of the drug ice’[8] and noted the submission on the plea that he ‘was motivated by a need to repay drug debts to persons who were euphemistically described during the course of the plea as “motorcycle enthusiasts”’.[9]
[8]Ibid [15].
[9]Ibid [16].
The first of the offences occurred on 25 July 2015 when Friel and a friend went to a 7-Eleven store in Corio, where Friel produced a false Victorian driver’s licence and rented a 8 x 5 box trailer belonging to Move Yourself Trailers. He paid a $50 deposit and $57 for four hours’ rental. He did not return the trailer (valued at about $2,000) when it was due at 8:41 pm. This conduct was the basis for charge 1 (obtain property by deception). At this time Friel was not subject to the CCO. For this offence he was sentenced to six months’ imprisonment with one month’s cumulation on the base offence. This sentence is challenged as manifestly excessive.
On 18 November 2015 Friel made two loan applications through a broker while purporting to be Adrian Stocco (‘Stocco’). The judge noted during the plea that Friel’s criminal record showed that as at 18 November 2015 he was serving a CCO. He sent copies of a false driver’s licence, pay slips and a group certificate online to the broker. The originals of these documents had been stolen from Stocco’s vehicle in August 2015. Friel was granted a loan by St.George Bank, and arranged for the sum of $66,000 to be transferred directly to Harley City in Brunswick for the purchase of two Harley Davidson motorcycles and accessories. This conduct was the basis for charge 2 (obtain property by deception). Friel and two other men collected the motorcycles from Harley City on 23 November 2015. At that time Friel produced the false identification in the name of Stocco and had the motorcycles registered in that name.
On 22 November 2015 Friel attempted to purchase four Apple iPhones valued at $1,279 each (approximately $5,000 in total) from the Vodafone Select outlet in Swanston Street, Melbourne, using a false driver’s licence and Medicare card in the name of Stocco. The transaction did not proceed when staff became suspicious. This conduct was the basis for charge 3 (attempt to obtain property by deception). For this offence he was sentenced to six months’ imprisonment, with one month’s cumulation. This is also subject to a challenge of manifest excess.
An hour later on 22 November 2015 Friel attempted to buy another Apple iPhone valued at $1,536 from the Telstra outlet in Lonsdale Street, Melbourne, again using the same false driver’s licence and Medicare card. That transaction too did not proceed after staff suspected the licence was false and told Friel that it would take some time to process the transaction. Friel did not wait and left the store. This conduct was the basis for charge 4 (attempt to obtain property by deception). For this Friel was sentenced to six months’ imprisonment, with one month’s cumulation. This is also challenged as manifestly excessive.
On 30 November 2015 Friel and another man enquired at Harley Heaven in A’Beckett Street, Melbourne about purchasing a motorcycle valued at $37,500. The other man left a $500 deposit. Friel returned on 3 December 2015 with a false driver’s licence, payslips and a group certificate in Stocco’s name and completed a loan application, which was forwarded to St.George Bank, where it was noticed that there were similarities with the earlier loan (the subject of charge 2) and the application was declined. This conduct by Friel was the basis for charge 5 (attempt to obtain property by deception in relation to the motorcycle) and charge 6 (attempt to obtain property by deception in relation to the finance).
On 3 December 2015 Friel also used the false Stocco documents to attempt to obtain a $90,000 loan online from Flexirent Pty Ltd. That application was declined as well by the company’s internal fraud specialists. This conduct was the basis for charge 7 (attempt to obtain property by deception).
A week later, on 10 December 2015, Friel used stolen identity documents of another person, Timothy Eden (‘Eden’), to purchase from Michael Hill Jewellers in Werribee Plaza a gentleman’s ring, a wedding band, a ladies’ white ceramic/gold plated watch and a professional care plan, all worth $5,085.90. He paid a deposit of $585.90 and successfully applied for a Certegy Ezi-Pay account in Eden’s name for the balance of $4,500. Eden subsequently received correspondence from Certegy Ezi-Pay informing him that the contract would be administered by the Collections department for non-payment. This conduct was the basis for charge 8 (obtain property by deception). Friel was sentenced to eight months’ imprisonment for this conduct. This is also challenged as manifestly excessive.
The next day, 11 December 2015, Friel used the stolen Eden documentation to make an online application for a loan of $40,000 from the Commonwealth Bank. He provided a mobile telephone number, an email address and employment details for Blitz Concrete. That application was also declined. This conduct was the basis for charge 9 (attempt to obtain property by deception).
The Eden documentation (false driver’s licence and pay slips) was used again by Friel on 15 December 2015 to obtain a loan for $34,500 through ANZ Bank broker Esanda at Harley Heaven in Dandenong to purchase another Harley Davidson motorcycle. Friel put the bike on a trailer and drove away. This conduct was the basis for charge 10 (obtain property by deception).
Using another false driver’s licence, this time in the name of Casey Stoneham (‘Stoneham’), Friel opened an account with the ANZ Bank in Hoppers Crossing on 21 December 2015 and took out a loan for $30,125.03. He received cash of $27,658.61. This conduct was the basis for charge 11 (obtain property by deception).
Friel opened another account and took out another loan for $30,000 between 21 and 23 December 2015, this time at the Werribee branch of the ANZ Bank, also using the Stoneham false identity and again received cash of $27,658.61 after fees. This conduct was the basis for charge 12 (obtain property by deception).
On 22 December 2015 Friel placed a $500 deposit on a black Mercedes Benz at Ballarat Holden over the telephone using an unknown credit card. He then went there and provided a false driver’s licence, bank statement, pay slips and an internet tax invoice statement in the name of Kieron Merrigan (‘Merrigan’). Ballarat Holden took a copy of these documents and provided a loan of $69,048.07. Friel then drove away in the vehicle. This conduct was the basis for charge 13 (obtain property by deception). The car was later recovered by police.
Friel again approached Harley City in Brunswick on 23 December 2015, this time online, to enquire about purchasing a motorcycle valued at $30,000. He used the false identity of Michael Shehata (‘Shehata’). In order to apply for a loan, he provided copies online of a driver’s licence, bank card, pay slips and a NAB bank statement all in the name of Shehata. The sales representative recognised the photograph on the driver’s licence as the same person who had purported to be Stocco in November and the application was declined. This conduct was the basis for charge 14 (attempt to obtain property by deception).
The police intercepted Friel on 28 December 2015 after he drove a BMW M3 coupe through a red light at Palmers Road, Point Cook. He did not have a legitimate driver’s licence; when the police checked the licence he produced in the name of Nicholas McCoy, it proved to be false. They then searched him and the car and discovered four other driver’s licences in the names of Shehata, Merrigan, Stoneham and Daniel Nasser. This conduct was the basis for uplifted summary charges of driving while disqualified, disobeying a traffic signal and failing to state name and address on request, as well as charge 15 on the indictment (possession of another’s identification information). For charge 15 Friel was sentenced to six months’ imprisonment with a cumulation of one month. The sentence on charge 15 is also subject to a challenge as manifestly excessive.
The police arrested Friel and conducted a taped record of interview with him. He was bailed on 28 December 2015 to attend the Werribee Magistrates’ Court on 13 April 2016.
While on bail, Friel went to the ANZ Bank branch at Wyndham Vale on 14 January 2016 and opened an account in the name of Hassan Al-Hamza using a false Victorian driver’s licence. He then unsuccessfully applied for a loan for $28,503. This conduct was the basis for charge 16 (attempt to obtain property by deception).
Friel then went to the Moonee Ponds ANZ Bank branch the next day, 15 January 2016, where he succeeded in taking out a loan for $25,150 after opening an account in the name of Ryan Farrell using a false Victorian driver’s licence. He received the funds in cash. This conduct was the basis for charge 17 (obtain property by deception).
The following week, on 22 January 2016, he went to the Caroline Springs branch of the ANZ Bank, this time using the identity of Nathan Doonan, and applied for a loan in the sum of $25,150. Although he subsequently provided a false NAB statement and Victorian driver’s licence on 5 February 2016, the loan application was unsuccessful. This conduct was the basis for charge 18 (attempt to obtain property by deception).
Friel had another attempt at taking out a loan at the Watergardens branch of the ANZ Bank on 3 February 2016, now using the false identity of Lachlan Morrison to open an account. He applied for a loan of $28,098, but again it was declined. This conduct was the basis for charge 19 (attempt to obtain property by deception).
Two days later, on 5 February 2016, Friel used the false identity of Kristopher Rogers to apply online for a loan for $57,156 with the ANZ Bank. He then attended the Altona North branch of the bank with a false Victorian driver’s licence in Rogers’ name, but was unsuccessful. This conduct was the basis for charge 20 (attempt to obtain property by deception).
Friel returned to the Altona North branch of the ANZ Bank on 8 February 2016 to apply for a loan for $30,000, still using the false Victorian driver’s licence in Rogers’ name. This conduct was the basis for charge 21 (attempt to obtain property by deception). When he returned to the bank on 15 February 2016 to finalise the application, the police arrested him.
Ground 2 — totality
Friel submits that the judge failed to refer to the principle of totality notwithstanding that he imposed individual sentences of imprisonment for 21 offences and ordered modest cumulation. He asserts that the judge’s failure to mention totality, and the manifest excess of the overall sentence, means that the judge erred.
While the Crown acknowledges that ordinarily it is accepted that a court should make direct reference to the application of totality, it is also established that a judge need not refer expressly to each element that plays a part in the sentencing process. The Crown submits that the total effective sentence, modest orders for cumulation, and the non-parole period indicate that the judge had proper regard to the principle of totality.
The Crown’s contentions should be accepted. The judge is an experienced criminal judge who is well aware of the need to consider the principle of totality in every case involving multiple offending. For the reasons given below in dealing with the manifest excess ground of appeal, it is apparent that the judge had proper regard to principles of totality when arriving at the total effective sentence.
Ground 3 — continuing criminal enterprise provisions
Friel accepts that the judge indicated that he was aware that charges 2, 7, 13 and 20 were CCE offences. However, Friel complains that the judge did not then explain whether, and how, he had exercised his discretion on the question of whether a greater sentence should be imposed by reason of there being an increased maximum for CCE offences.
The Crown submits that the absence of reasons on matters relevant to the sentencing disposition will not of itself vitiate the sentencing decision or provide a ground for review of the sentence.[10] The Crown points to the fact that the CCE offences carried increased maximum sentences and involved significantly greater amounts of money than the non-CCE offences. In these circumstances, an experienced criminal judge should be taken to have had regard to these factors in fixing the higher sentences for those offences. Moreover, the CCE offences formed a large part of a persistent, planned and sophisticated scheme with a clear nexus between them and the non-CCE offences.[11]
[10]R v Koumis (2008) 18 VR 434, 440 [64].
[11]R v Grossi [2008] 23 VR 500, 526 [81].
The Crown’s submissions should be accepted. Although I accept that, in the usual case, a sentencing judge should give reasons for the exercise of the discretion to impose increased sentences where sentences are imposed for CCE offences,[12] this is an obvious case where the matters relied upon by the Crown must have been taken into account by the experienced judge who made specific mention of the fact that he was sentencing for CCE offences. In other words, the reasons explaining the difference in the penalties imposed for the CCE offences, when compared with the non-CCE offences, are plain. Double the maximum penalty applied in each case, the amounts involved were substantially greater, and the CCE offences were part of a scheme which the judge correctly described as ‘persistent, planned and sophisticated’. Harsher penalties for these offences were obviously open in all the circumstances. This ground of appeal is not established.
[12]R v Arundell [2003] VSCA 69 [28]–[29].
I turn to consider the manifest excess ground of appeal.
Ground 1 — manifest excess
Friel submits that, given the almost identical modus operandi of the offending in relation to all of the attempt and obtaining property by deception charges, the assessment of whether the sentences on charges 1, 3, 4 and 8, and the cumulation ordered in respect of them, are manifestly excessive should be carried out having regard to the following factors: the financial value of those transactions compared to the others; whether those transactions were complete or an attempt; the fact that the CCE provisions did not apply to those offences whereas they did apply for others; the fact that those offences were not committed while he was on bail and other offences occurred while he was on bail; and in relation to the sentence for charge 1, the fact he was not serving a CCO.
Friel first contends that the sentences on charges 1 and 8 were manifestly excessive. He submits that a comparison between the sentences on charges 1 and 8, on the one hand, (six months’ imprisonment with one month cumulation and eight months’ imprisonment with two months’ cumulation, respectively)[13] and those on charges 10, 11, 12 and 17, on the other (sentences of 12 months’ imprisonment with three months’ cumulation) demonstrates that the differences in penalty and in cumulation do not reflect the differences in the circumstances of the offending. In particular, while the sentences are only about 50 per cent less, the amounts involved in charges 1 and 8 are argued to be ‘around 1/15th’ of the amounts involved in charges 10, 11, 12 and 17. The amount involved in charge 1 was said to be $2,000[14] and in charge 8 was $5,085. This compares with the amounts involved in charge 10 ($34,500), charge 11 ($30,125), charge 12 ($27,658.61) and charge 17 ($25,150). Nor is there the aggravating factor present for charges 1 and 8 of Friel being on bail. And in the case of charge 1, this offence was committed well before the others and Friel was not serving a CCO.
[13]As the Crown correctly notes, Friel’s written case mistakenly states that the sentences on these two charges were identical.
[14]Friel’s written case contends that the financial value of the offence under charge 1 was $2,000, but it is unclear what this is based on.
Second, Friel challenges the sentences on charges 3 and 4. He observes that the judge imposed the same sentence of six months’ imprisonment with one month of cumulation for each of charges 3 and 4, on the one hand, and charges 5, 6, 9, 14, 16, 18, 19, and 21, on the other. All of these were attempts to obtain property by deception. Friel submits the gravamen of the offending in the two groups of offences was quite different. In particular, he submits that the amounts involved in the former were significantly less than those in the latter: charge 3 ($5,000) and charge 4 ($1,536) compared to charges 5 ($37,500), charge 6 ($37,500), charge 9 ($40,000), charge 14 ($30,000), charge 16 ($28,503), charge 18 ($25,150), charge 19 ($28,098) and charge 21 ($30,000). Furthermore, charges 16, 18, 19 and 21 offences were committed when Friel was on bail.
In relation to charge 15 (possession of another’s identity information), Friel submits that there is the appearance of double punishment given that three of the four false driver’s licences had been used in some of the earlier deceptions. The sentence of six months’ imprisonment also fails to give sufficient weight to the plea of guilty made at the earliest opportunity.
The Crown submits that the individual sentences and the total effective sentence were all within range and neither individually, nor in their totality, could they satisfy the stringency of the manifest excess ground.[15] The Crown also submits that the approach adopted by Friel of comparing sentences imposed for offences committed by him with sentences imposed for other offences committed by him is of limited assistance because a perceived lack of disparity between two sentences may equally be explained by one sentence being very lenient as opposed to the other being manifestly excessive. However, with respect to the sentences imposed in charges 3 and 4, and the comparison with the sentences on charges 5, 6, 9, 14, 16, 18, 19, and 21, the Crown accepts that it may have been open for the sentencing judge to have imposed different sentences for those offences because of the difference in quantum, although the Crown maintains that a lack of disparity does not itself establish manifest excess as opposed to a greater leniency on the more serious charges.
[15]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; Ayol v The Queen [2014] VSCA 151 [30].
With respect to charge 15, the Crown points out that the elements and facts that constitute this ‘rolled up’ charge are different to those applicable to the earlier offending. There is no double punishment. The cumulation is modest and reflects Friel’s criminality in possessing the false licences on 28 December 2015.
This ground of appeal is also not made out. The contentions in support of it echo those put forward in Hoy v The Queen.[16] That case also involved an ongoing fraudulent course of conduct, where the criminal behaviour was of a similar and repetitive nature. Hoy applied for an extension of time to apply for leave to appeal on the sole ground of manifest excess. The case involved multiple counts of obtaining financial advantage by deception. The Court refused to extend the time to apply for leave to appeal, on the ground that the proposed ground of appeal had no reasonable prospect of success. Redlich JA stated:
When a sentencing judge is required to impose terms of imprisonment on a large number of counts, it has often been recognised that the sentencing judge may, within limits, adopt a ‘broad-brush’ approach to the fixing of sentence.[17] For example, such an approach may be appropriate where there was an ongoing fraudulent course of conduct,[18] a single fraudulent or common enterprise[19] or where the criminal behaviour on counts was of a similar and repetitive nature.[20]
There is much authority to the effect that sentences imposed in such circumstances need only be roughly proportional to the gravity of the offences and the amount taken.[21] This is not the first time that it has been necessary to state that structural objections to the sentences imposed in such cases is to be discouraged unless they reveal error in the instinctive synthesis.[22] Where a judge is entitled to adopt a broad-brush approach, disconformity between sentences on particular counts will not usually provide a sufficient basis to impugn the instinctive synthesis.
In circumstances such as the present, the sentencing judge was not required to give the same level of attention to each of the sentencing considerations which bear upon the fixing of each individual sentence. Counts 31 and 37 were not committed in isolation. They were a necessary part of the applicant’s scheme …[23]
[16][2012] VSCA 49.
[17]R v Fletcher [2002] VSCA 40; R v Nikodjevic [2004] VSCA 222; R v Albanus [2004] VSCA 236; R v Bosio [2005] VSCA 209; R v Fakar [2009] VSCA 5; R v Scott Harris [2009] VSCA 189; R v Luke [2010] VSCA 67; Jailani v The Queen [2010] VSCA 276; Quarrell v The Queen [2011] VSCA 125.
[18]Day v The Queen [2009] VSCA 243.
[19]R v Fletcher [2002] VSCA 40.
[20]R v Ash [2005] VSCA 43 [23]–[25].
[21]Yusuf v The Queen [2010] VSCA 266; R v Shannon [2005] VSCA 143; R v Coukoulis (2003) 7 VR 45.
[22]R v Belhaj [2006] VSCA 153 [10]; R v Albanus [2004] VSCA 236 [9].
[23]Hoy v The Queen [2012] VSCA 49 [17]–[19] (emphasis added) (citations in original).
Redlich JA found no error in the sentencing judge’s approach of placing the offences into categories according to the amount involved as part of a broad-brush approach. In this case, it is to be inferred that the judge adopted a similar rough and ready categorisation as follows:
(1) Higher penalties for the CCE offences than the non-CCE offences, because of the double maximum penalty and the increased amounts which were obtained or attempted to be obtained.
(2) Some variation in the penalties for the non-CCE offences of obtaining property by deception:
(a) six months on charge 1 ($2,000);
(b) eight months on charge 8 ($4,500);
(c) 12 months on charges 10, 11, 12 and 17 (involving amounts of between $25,000 and $34,500).
(3) In respect of the non-CCE offences involving attempts to obtain property by deception, the judge contented himself with categorising the offences between CCE and non-CCE offences and imposed a common sentence of six months’ imprisonment with one month cumulation for each of the attempts.
In my opinion, these categorisations provided sufficient reasons to enable Friel to understand the basis upon which he was sentenced. They reflected the differing amounts obtained and the striking similarity of offending in relation to both amounts obtained and the attempts to obtain property by deception.[24] As Nettle JA stated in Hoy:
Punctilious identification of distinguishing features as between offences doubtless has a role to play in some sentencing exercises. But, in cases like this, involving multiple counts of systematic and serious fraud, its utility tends to be limited.[25]
[24]Ibid [23] (Nettle JA).
[25]Ibid [25] (Nettle JA).
When the circumstances of Friel’s offending and the aggravating and mitigating circumstances are viewed as a whole, I am not satisfied that the total effective sentence imposed by the judge was wholly outside the range of sentencing options available to him.[26] The offending was of a serious and repeated nature, and would have continued if Friel had not been arrested and charged. Although he pleaded guilty at an early stage, the judge took that into account. The judge was also obliged to take into account the aggravating factors (where applicable) of serious offences being committed while Friel was subject to a CCO and, for the later offences, also on bail. Further, sentences reflecting denunciation, general deterrence and specific deterrence were called for.
[26]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
Conclusion
The appeal should be dismissed.
PRIEST JA:
I agree.
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