Hayes v The Queen - [2014] VSCA 309

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0147

WENDY HAYES

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2014
DATE OF JUDGMENT:	2 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 309
JUDGMENT APPEALED FROM:	DPP v Hayes (Unreported, County Court of Victoria, Judge Gamble, 16 April 2014)

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CRIMINAL LAW – Sentence – Appeal – Dishonestly obtaining a financial advantage from a Commonwealth entity – Attempting to dishonestly obtain a financial advantage from a Commonwealth entity – Term of imprisonment of 2 years and 6 months with release on recognisance after serving 15 months – Whether sentence manifestly excessive – Whether principles of totality infringed – Principles of totality not infringed – Sentence not manifestly excessive – Leave granted and appeal allowed for limited purpose of correcting County Court record to reflect sentencing judge's actual intention in relation to a reparation order made at the time of sentencing – Appeal otherwise dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Cass	Victoria Legal Aid
For the Respondent	Mr Y K Hardjadibrata	Director of Public Prosecutions (Cth)

WEINBERG JA
BEACH JA:

Introduction

On 2 April 2014, the applicant pleaded guilty in the County Court to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Criminal Code1995 (Cth) (charges 1 and 3) and one charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to ss 11.1(1) and 134.2(1) of the Criminal Code (charge 2).

On 16 April 2014, the judge sentenced the applicant in respect of all three charges to a term of imprisonment of two years and six months. The judge ordered this sentence to commence on the day he sentenced the applicant (16 April 2014). In addition, the judge ordered the applicant to be released after serving a period of 15 months, upon the applicant giving security by recognisance in the sum of $5,000 to comply with a condition that she be of good behaviour for a period of three years. During the course of pronouncing his reasons for sentence,[1] the judge said he was prepared to make a reparation order pursuant to s 21(b) of the Crimes Act 1914 (Cth) in the total sum of $102,977.60 (the ‘reparation sum’). Having indicated a preparedness to make this order (to which the applicant consented), the judge said:

Accordingly, you are to pay that sum by way of reparation to the Department of Human Services.[2]

[1]DPP v Hayes (Unreported, County Court of Victoria, Judge Gamble, 16 April 2014) (‘Reasons’).

[2]Reasons [41]–[43].

The judge also ordered that the sentence of imprisonment he imposed upon the applicant be served concurrently with a sentence the applicant was then undergoing in respect of a breach of parole which had been granted in relation to a sentence the applicant received in the Brisbane District Court on 21 December 2009.

Having sentenced the…

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 Hayes v The Queen

Details

AGLC: Hayes v The Queen [2014] VSCA 309
Case: [2014] VSCA 309
Decision Date: 2 December 2014

CaseChat Overview and Summary

Hayes was the appellant and the Crown was the respondent in this case which was heard in the High Court of Australia. The appeal arose from a decision made by the County Court of Victoria, where Hayes was found guilty of several charges including obtaining a financial advantage by deception and attempting to obtain a financial advantage by deception. The crux of the appeal was the sentence imposed by the County Court, which was a term of imprisonment of 2 years and 6 months, with release on recognisance after serving 15 months. Hayes contended that the sentence was manifestly excessive and that the principles of totality were infringed.

The primary legal issues before the High Court were whether the sentence imposed by the County Court was manifestly excessive and whether the principles of totality were infringed in the sentencing process. The appellant argued that the sentence was excessive given the nature and circumstances of the offences and the need for general and specific deterrence. Additionally, Hayes submitted that the principles of totality, which require that the aggregate punishment for multiple offences should not be disproportionate to the overall criminality of the offender's conduct, were breached. The respondent, on the other hand, maintained that the sentence was appropriate and did not infringe the principles of totality.

The Court examined the sentence and found that it was not manifestly excessive, taking into account the nature of the offences and the sentencing principles applicable. The Court also concluded that the principles of totality were not infringed, as the sentence reflected a balanced consideration of the totality of the offending. However, the Court did find that there was an error in the recording of the sentence in the County Court's records regarding a reparation order. The Court granted leave for the appeal to the extent of correcting this error, but dismissed the appeal in all other respects.

The final orders of the Court were to allow the appeal for the limited purpose of correcting the County Court record to reflect the sentencing judge's actual intention in relation to the reparation order made at the time of sentencing. The appeal was otherwise dismissed, and the original sentence was upheld.

Orders