Jackson v The Queen - [2011] VSCA 338

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0459

LEIGH JACKSON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2011
DATE OF JUDGMENT	10 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 338
JUDGMENT APPEALED FROM	R v Jackson (Unreported, County Court of Victoria, Judge Gullaci, 9 December 2010)

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CRIMINAL LAW – Sentence – Fraud and dishonesty offences – Total effective sentence of 3 years and 8 months imprisonment with non-parole period of 2 years and 3 months – Whether judge erred in sentencing appellant on erroneous basis as to maximum penalty for dishonesty offences – Whether appellant subjected to double punishment in respect of some charges – Considerable overlap between two forms of offending – Appeal allowed – Appellant re-sentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Balmer & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Weinberg JA.

WEINBERG JA:

The appellant pleaded guilty in the County Court at Melbourne to a series of charges, all of which essentially involved fraud, and dishonesty. The offences were committed between December 2005 and March 2008.

The appellant was sentenced on 9 December 2010 as follows:

Charge number Offence Details of offence Maximum penalty Sentence imposed Cumulation

1 Attempt to obtain financial advantage by deception (‘AOFAD’) Attempt through multiple fraudulent transactions to obtain a total sum of $11,365 5 years (Crimes Act 1958 s 321M and 321P) 6 months ---

2 AOFAD Attempt through multiple fraudulent transactions to obtain a total sum of $1,057,766.10 5 years 1 year 3 months

3 AOFAD Attempt through multiple fraudulent transactions to obtain a total sum of $20,496 5 years 6 months 1 month

4 AOFAD Attempt through multiple fraudulent transactions to obtain a total sum of $186,975.90 5 years 9 months 3 months

5 AOFAD Attempt through multiple fraudulent transactions to obtain a total sum of $19,848.56 5 years 6 months 1 month

6 AOFAD Attempt through multiple fraudulent transactions to obtain a total sum of $16,251.18 5 years 6 months 1 month

Charge number Offence Details of offence Maximum penalty Sentence imposed Cumulation

7 AOFAD Attempt through multiple fraudulent transactions to obtain a total sum of $803.20 5 years 14 days ---

8 Obtain financial advantage by deception (‘OFAD’) Fraudulently obtained American Express (‘AMEX’) card with line of credit to the value of $4,000 10 years (Crimes Act 1958 s 82(1)) 6 months ---

9 AOFAD Fraudulently obtained nine separate AMEX cards with line of credit to the value of $109,000 5 years 9 months 3 months

10 OFAD Fraudulent use of AMEX card separate from those the subject of both charges 8 and 9 to obtain goods to the value of $92,076.79 10 years 2 years Base

11 Dealing with proceeds of crime Use of AMEX card the subject of charge 10 to conceal offences committed…

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 Jackson v The Queen

Details

AGLC: Jackson v The Queen [2011] VSCA 338
Case: [2011] VSCA 338
Decision Date: 10 November 2011

CaseChat Overview and Summary

Jackson was convicted of multiple fraud and dishonesty offences and sentenced to a total effective sentence of 3 years and 8 months imprisonment, with a non-parole period of 2 years and 3 months. The case was appealed to the court on the grounds that the sentencing judge had erred in determining the maximum penalty for the dishonesty offences and whether the appellant was subjected to double punishment in respect of some charges. The overlap between the two forms of offending was also considered.

The appeal centred on the legal issues of whether the judge had made an error in sentencing based on an incorrect understanding of the maximum penalties for the dishonesty offences and whether the appellant had been subjected to double punishment for certain charges. The appellant argued that the considerable overlap between the fraud and dishonesty offences should have led to a more lenient sentence.

The court found that the judge had indeed erred in his understanding of the maximum penalty for the dishonesty offences, leading to an overly harsh sentence. The court also determined that the appellant had been subjected to double punishment for some charges due to the overlap between the fraud and dishonesty offences. The appeal was allowed, and the appellant was re-sentenced. The court emphasised that no point of principle was involved in the decision.

The final orders of the court were to allow the appeal, re-sentence the appellant, and direct that no point of principle be recorded. The appellant's total effective sentence was reduced, and the non-parole period was adjusted accordingly.

Orders