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Friel v The Queen

Friel v The Queen

Case [2018] VSCA 48 5 March 2018

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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
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…

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…

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 Friel v The Queen

Details

AGLC: Jake Matthew Friel v The Queen [2018] VSCA 48
Case: [2018] VSCA 48
Decision Date: 5 March 2018

CaseChat Overview and Summary

Friel was convicted on eight counts of obtaining property by deception, 12 counts of attempting to obtain property by deception, and one count of possessing another person's information. The court sentenced Friel to a total effective term of four years and four months' imprisonment, with a non-parole period of three years. Friel appealed the sentence, arguing it was manifestly excessive and did not adhere to the principles of totality and continuing criminal enterprise provisions.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the principles of totality and the continuing criminal enterprise provisions were properly applied. The court considered the nature and circumstances of the offences, Friel's criminal history, and the deterrent effect of the sentence. The court also examined whether the sentence reflected the overall criminality of Friel's conduct.

The court found that the sentence was not manifestly excessive and appropriately reflected the seriousness of the offences. The court noted the aggravating factors, such as the number of victims and the sophistication of the deceptions. The court also considered the mitigating factors, such as Friel's guilty pleas and cooperation with authorities. The court held that the sentence was within the range of appropriate penalties for the offences committed and did not breach the principles of totality or the continuing criminal enterprise provisions. Consequently, the appeal was dismissed.

Orders