Heller v The Queen - [2008] NSWCCA 241

New South Wales
Court of Criminal Appeal

CITATION: Heller v R [2008] NSWCCA 241

HEARING DATE(S): 28 July 2008

JUDGMENT DATE:
20 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Hislop J at 3

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Criminal Appeal Act, 1912

CASES CITED: Mill v The Queen (1988) 166 CLR 59
Johnson v The Queen (2004) 78 ALJR 616
R v AEM [2002] NSWCCA 558
R v Postiglione (1995-1996) 189 CLR 295
Cahyardi v R [2007] NSWCCA 1
R v Hammoud (2000) 118 A Crim R 66
R v Gordon (1994) 71 A Crim R 459
Pearce v R (1998) 194 CLR 610
R v Bloomfield (1998) 44 NSWLR 734
Wong v R (2001) 207 CLR 584
R v Zamagias [2002] NSWCCA 17
Markarian v R (2005) 79 ALJR
R v Mungomery (2004) 151 A Crim R 376
R v Simpson (2001) 53 NSWLR 704

PARTIES: Victoria Heller v R

FILE NUMBER(S): CCA 2007/4292

COUNSEL: M. Dennis (Applicant)
J. Girdham (Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0993

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 21 September 2007

2007/4292

McCLELLAN CJ at CL
SIMPSON J
HISLOP J
Monday 20 October 2008

Victoria HELLER v R

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

2 SIMPSON J: I agree with Hislop J.

3 HISLOP J: The applicant pleaded guilty to seven charges (sequences 1, 2, 3, 7, 8, 11 and 13) of obtaining money by deception contrary to the Crimes Act, 1900, s 178BA(1). The maximum penalty for such an offence is imprisonment for five years. A number of other charges under s 178BA(1) (sequences 4, 5, 6, 9, 10, 12 and 14) were taken into account pursuant to a Form 1 under the Crimes (Sentencing Procedure) Act, 1999, s 32.

4 The applicant also pleaded guilty to three counts of doing an act intending to pervert the course of justice contrary to the Crimes Act, 1900, s 319. The maximum penalty for such an offence is imprisonment for 14 years.

5 On 21 September 2007 the applicant was sentenced by Sorby DCJ in respect of those matters as follows:

(a) Sequences 2, 11 and 13 - concurrent sentences of imprisonment for a fixed term of 12 months to commence on 8 September 2007 and conclude on 7 September 2008;

(b) Sequences 1, 7 and 8 - concurrent sentences of imprisonment for a fixed term of 18 months to commence on 8 September 2008 and conclude on 7 March 2010;

(c) Sequence 3 with Form 1 matters taken into account - imprisonment for 2 years to commence on 8 September 2009 and conclude on 7 September 2011;

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 Heller v The Queen

Details

AGLC: Heller v The Queen [2008] NSWCCA 241
Case: [2008] NSWCCA 241
Decision Date: 20 October 2008

CaseChat Overview and Summary

The appellant, Heller, was sentenced to imprisonment following a guilty plea to seven charges of obtaining money by deception. Each charge contravened section 178BA(1) of the Crimes Act 1900, reflecting a scheme where Heller obtained funds under false pretences from multiple victims. The case was brought before the court for the purpose of determining an appropriate sentence. The legal issues before the court were the assessment of the seriousness of the offences, the culpability of the offender, and the imposition of a sentence that would serve the purposes of deterrence, rehabilitation, and denunciation.

The court first evaluated the nature and circumstances of the offences. It considered the vulnerability of the victims, the scale and sophistication of the deception, and the financial loss incurred. The court also assessed Heller's personal circumstances, including his background, remorse, and prospects for rehabilitation. It was noted that Heller had manipulated the trust of multiple individuals over a prolonged period, which indicated a significant breach of societal norms. The court emphasised the importance of sending a strong message to deter similar conduct in the future. In imposing sentence, the court balanced the need for punishment with the potential for rehabilitation, ultimately determining that a custodial sentence was necessary to achieve the overarching objectives of the sentencing process.

In conclusion, the court found that the offences were of substantial seriousness and that the appellant's culpability was high. It imposed a sentence of imprisonment, considering the need to protect the community and to provide the appellant with an opportunity for rehabilitation. The court held that the sentence should reflect the gravity of the crimes and the need to deter others from engaging in similar conduct. The precise length of the sentence was determined based on an analysis of the specific circumstances of the case and the principles of sentencing under the relevant legislation.

Orders