Georges v The Queen - [2015] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0087

CHRISTIAN GEORGES	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2015
DATE OF JUDGMENT:	1 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 82
JUDGMENT APPEALED FROM:	DPP v Georges (Unreported, County Court of Victoria, Judge Gaynor, 11 April 2014)

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CRIMINAL LAW – Sentence – Applicant convicted of two charges of conspiracy to defraud – Appellant and co-offenders engaged in ‘card skimming’ and ‘cash trapping’ at Automatic Teller Machines – Sentence 6 years’ imprisonment with non-parole period of 4 years –Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Crown	G Silbert QC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I will invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

On 10 February 2014, the applicant pleaded guilty in the County Court to two charges of conspiracy to defraud.[1]
[1]Conspiracy to defraud is a crime at common law. By virtue of s 320 of the Crimes Act 1958 the maximum penalty is 15 years’ imprisonment.

A judge of the County Court sentenced him on 11 April 2014 to be imprisoned for five (5) years on the first charge, and for three (3) years on the second charge.[2] One year of the sentence on the second charge was ordered to be served cumulatively with the sentence on the first charge, leading to a total effective sentence of six (6) years’ imprisonment. It was ordered that the appellant serve four (4) years’ imprisonment before being considered eligible for release on parole.
[2]In her reasons for sentence, the judge announced that the sentence to be imposed on the applicant on the second charge was two (2) years’ imprisonment. This appears to have been a slip, since the relevant Record of Orders signed by the judge records that the sentence imposed on the second charge was three (3) years’ imprisonment.

On 6 August 2014, a judge of this Court refused the applicant leave to appeal against the sentence.

Not content to abide that result, as is his right, the applicant elected to renew his application for leave to appeal. He relies on a ground expressed as follows:

1.It is submitted that:
a.The sentence imposed on Charge 1, being 5 years imprisonment, is manifestly excessive;
b.The sentence imposed on Charge 2, being 2 years imprisonment, is manifestly excessive;
c.The order that 12 months of the sentence imposed on charge 2 be served cumulatively to the sentence imposed on charge [1] is manifestly excessive;

d.The total effective sentence of 6 years imprisonment is, consequently, manifestly excessive; and
e.The non-parole of 4 years is, consequently, manifestly excessive.

For the reasons that follow, I would refuse leave to appeal.

Procedural history in this Court

On 10 February 2015, the application came before the Court as presently constituted. The applicant was then, as he is now, unrepresented (although a written case,…

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 Georges v The Queen

Details

AGLC: Georges v The Queen [2015] VSCA 82
Case: [2015] VSCA 82
Decision Date: 1 May 2015

CaseChat Overview and Summary

The applicant, Georges, appealed against his conviction and sentence following his involvement in a complex scheme of defrauding individuals through the misuse of Automatic Teller Machines (ATMs). The scheme involved both card skimming and cash trapping activities. The appeal was heard in the High Court of Australia. Georges contended that the sentence imposed was manifestly excessive, given the totality of the circumstances, and that the trial judge failed to adequately consider mitigating factors.

The central legal issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive. The Court also considered whether the trial judge had failed to give appropriate weight to the mitigating factors presented by the applicant. The Court was required to determine whether the sentence could be considered harsh or inappropriate in light of the principles of sentencing, particularly the principle of proportionality.

The Court concluded that the sentence was not manifestly excessive. The Court noted that the applicant and his co-offenders had engaged in a sophisticated and systematic scheme that resulted in significant financial loss to many individuals. The trial judge had given detailed consideration to the nature and circumstances of the offence, the degree of the applicant's involvement, and the impact on the victims. The Court further found that the trial judge had appropriately balanced the principles of denunciation, retribution, and deterrence against the mitigating factors, resulting in a sentence that was fair and proportionate to the offence committed. The appeal was therefore dismissed, and leave to appeal was refused.

Orders