CRIMINAL LAW – Appeal – Conviction – Obtain financial advantage by deception – Where settlement deed in civil proceeding to recover monies contained admissions – Where settlement deed tendered by Crown – Whether deed wrongly admitted into evidence – Whether deed privileged under s 131 of the Evidence Act 2008 – Whether s 131 extends common law ‘without prejudice’ privilege – Deed not privileged – No miscarriage of justice – Application for extension of time to appeal against conviction refused – Evidence Act 2008, ss 31(1), (2)(e), (2)(f).
CRIMINAL LAW – Appeal – Sentence – Appeal against sentence – Applicant found guilty of 14 charges of obtaining financial advantage by deception – Six charges charged as continuing criminal enterprise offences, with consequence that maximum penalty doubled – Deception carried out over almost two years and to a value of approximately $17,444,000 – Sentence of 9 years, six 6 months’ imprisonment with non-parole period of 7 years – Whether sentence manifestly excessive – Whether inadequate weight given to family hardship and fact defrauded funds were repaid – Where applicant solicitor at time of offending – Serious breach of trust – Value of the fraud very large – No remorse – Heightened need for general deterrence – Sentence within range – Application for extension of time to appeal against sentence refused.
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Counsel
Applicant:
Mr T Kassimatis QC with Ms G F Connelly
Respondent:
Mr C B Boyce QC
Solicitors
Applicant:
SLKQ Lawyers
Respondent:
Ms A Hogan, Solicitor for Public Prosecutions
MAXWELL P EMERTON JA SIFRIS JA:
The applicant, Josie Gonzalez, and her husband, Alvaro Gonzalez, were each charged with 14 counts of obtaining a financial advantage by deception.[1] Each charge addressed multiple fraudulent transactions committed between specified dates and referred to a course of conduct. Six of the charges were charged as continuing criminal enterprise offences, with the consequence that the maximum penalty was doubled.[2]
Both the applicant and Alvaro pleaded not guilty to all charges.
On 4 July 2019, following a trial by jury in the County Court of Victoria in which the applicant — but not Alvaro — gave evidence, the applicant and Alvaro were convicted on all 14 charges.
The applicant was sentenced as follows:
Charge
Offence
Maximum penalty
Sentence
Cumulation
1
Obtaining a financial advantage by deception
10 years
2 years
-
2
Obtaining a financial advantage by deception
10 years
3 years 6 months
-
3
Obtaining a financial advantage by deception
10 years
3 years 6 months
-
4
Obtaining a financial advantage by deception
20 years
3 years
6 months
5
Obtaining a financial…
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.
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Details
AGLC
Gonzalez v The Queen [2022] VSCA 110
Case
[2022] VSCA 110
Decision Date
CaseChat Overview and Summary
In the case of Gonzalez v The Queen, the respondent appealed against both his conviction and sentence. The respondent had been found guilty of multiple counts of obtaining financial advantage by deception, with some of the charges classified as continuing criminal enterprise offences. The respondent argued that the admission of a settlement deed in evidence was improper and that his sentence was manifestly excessive.
The court examined whether the settlement deed was privileged under section 131 of the Evidence Act 2008, which excludes evidence of settlement negotiations. The court found that the deed was not privileged as it did not fall within the scope of section 131(1). Additionally, the court held that section 131 did not extend the common law ‘without prejudice’ privilege. Regarding the sentence, the court determined that it was not manifestly excessive, considering the seriousness of the offences, the substantial amount defrauded, and the lack of remorse shown by the respondent. The court also noted that the sentence was within the appropriate range and that the respondent’s role as a solicitor at the time of the offences constituted a serious breach of trust.
The court dismissed the appeal against conviction and sentence. Furthermore, the court denied the application for an extension of time to appeal against both the conviction and the sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Section 131 relevantly provides:131 Exclusion of evidence of settlement negotiations(1) Evidence is not to be adduced of—(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.(2) Subsection (1) does not apply if—(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or(h) the communication or document is relevant to determining liability for costs; or(i) making the communication, or preparing the document, affects a right of a person; or(j)the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. It is apparent that the protection afforded by s 131(1) closely resembles the ‘without prejudice’ privilege that exists at common law.[8] The effect of ‘without prejudice’ privilege is that communications made between parties in the course of ‘genuine negotiations with intent to compromise an existing dispute’ cannot be admitted into evidence[9] or made subject to discovery[10] in later court proceedings. The purpose and ambit of the privilege was explained by the High Court in Field v Commissioner for Railways (NSW):As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. … For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words ‘without prejudice’ and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other of these words.[11] [8]See, eg, Rajski v Tectran Corporation Pty Ltd [2003] NSWSC 476, [16] (Palmer J).[9]Harrington v Lowe (1996) 190 CLR 311, 323 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); [1996] HCA 8. See also Rodgers v Rodgers (1964) 114 CLR 608, 614 (McTiernan, Taylor and Owen JJ); [1964] HCA 25.[10]Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232, [51] (Wigney J), citing Rush and Tompkins Ltd v Greater London Council [1989] 1 AC 1280, 1305; Bailey v Beagle Management Pty Ltd [2001] FCA 185, [17]–[18] (Goldberg J); Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411, 416 (Burchett J).[11](1957) 99 CLR 285, 291–2 (Dixon CJ, Webb, Kitto and Taylor JJ); [1957] HCA 92. See also Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, 288–9 [28]–[29] (Byrne J); Biala Pty Ltd v Mallina HoldingsLtd [1990] WAR 174, 180 (Master White) (‘Biala’).