Jake Matthew Friel v The Queen - [2017] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0098

JAKE MATTHEW FRIEL	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	18 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 209
JUDGMENT APPEALED FROM:	[2016] VCC 1727 (Judge Ryan)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Obtaining property by deception (eight charges), attempting to obtain property by deception (12 charges), possession of another person’s information (one charge) – Total effective sentence of four years and four months’ imprisonment – Non-parole period of three years – Manifest excess – Totality – Continuing criminal enterprise provisions – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Mike Wardell
For the Crown	No appearance	Mr J Cain, Solicitor for Public Prosecutions

TATE JA:

This is an application for leave to appeal against sentence brought by Jake Friel (‘Friel’) in relation to a sentence imposed on him in the County Court on 18 November 2016. Friel pleaded guilty to eight charges of obtaining property by deception, 12 charges of attempting to obtain property by deception and one charge of possessing another person’s identification information. Two of the charges of obtaining property by deception (charges 2 and 13 on the indictment) are continuing criminal enterprise (‘CCE’) offences carrying a higher maximum. Two of the offences of attempting to obtain property by deception (charges 7 and 20) are also CCE offences attracting a higher maximum. Friel also pleaded guilty to a number of related summary offences including driving a motor vehicle during a period of disqualification, proceeding through a red traffic light, failing to produce a permit to drive and stating a false name and address.

Friel was sentenced as follows:[1]
[1]DPP v Friel [2016] VCC 1727 (‘Sentencing Reasons’).

Charge on Indictment Offence Maximum Sentence
Cumulation

1 Obtain property by deception Crimes Act 1958 s 81(1) 10 years 6 months 1 month

2 Obtain property by deception Crimes Act 1958 s 81(1) 20 years (CCE offence) 18 months Base

3 Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month

4 Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month

5 Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1) 5 years 6 months 1 month

6 Attempt to obtain property by deception Crimes Act 1958 s 321M and s.81(1) 5 years 6 months 1 month

7 Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1) 10 years (CCE offence) 9 months 2 months

8 Obtain property by deception Crimes Act 1958 s 81(1) 10 years 8 months 2 months

9 Attempt to obtain property by deception Crimes…

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Obtain property by deception Crimes Act 1958 s 81(1)	10 years	6 months	1 month
2	Obtain property by deception Crimes Act 1958 s 81(1)	20 years (CCE offence)	18 months	Base
3	Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1)	5 years	6 months	1 month
4	Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1)	5 years	6 months	1 month
5	Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1)	5 years	6 months	1 month
6	Attempt to obtain property by deception Crimes Act 1958 s 321M and s.81(1)	5 years	6 months	1 month
7	Attempt to obtain property by deception Crimes Act 1958 s 321M and s 81(1)	10 years (CCE offence)	9 months	2 months
8	Obtain property by deception Crimes Act 1958 s 81(1)	10 years	8 months	2 months
9	Attempt to obtain property by deception Crimes…

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

Case: [2017] VSCA 209
Decision Date: 18 August 2017

CaseChat Overview and Summary

The applicant, Jake Matthew Friel, sought leave to appeal his sentence imposed by the Supreme Court of South Australia for various offences including obtaining property by deception, attempting to obtain property by deception, and possession of another person’s information. The appeal centred on the severity of the sentence, specifically the total effective term of four years and four months’ imprisonment and a non-parole period of three years, which Friel argued was manifestly excessive. The court had to determine whether the sentence was disproportionate to the crimes committed and whether it failed to account for the principles of totality and the operation of the continuing criminal enterprise provisions.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive given the principles of totality and the nature of the offending. The court considered whether the cumulative effect of multiple charges should have been factored into the sentencing process to avoid an inflated total sentence. Additionally, the court examined whether the totality principle, which requires consideration of concurrent sentences to avoid excessive punishment, was appropriately applied. The court also assessed the applicability of the continuing criminal enterprise provisions, which could have potentially mitigated the severity of the sentence.

The court found that the sentence imposed was manifestly excessive. It observed that the cumulative effect of the charges was not adequately considered, leading to an inflated total sentence. The court noted that the principles of totality were not appropriately applied, resulting in a sentence that was disproportionate to the offending. Furthermore, the court determined that the continuing criminal enterprise provisions were relevant and should have been considered in the sentencing process. As a result, the court granted leave to appeal, recognising the need for a reassessment of the sentence in light of these considerations.

The court ordered that leave to appeal the sentence be granted, directing that the appeal be heard in the Court of Appeal. This decision allows for a thorough review of the sentence to ensure it aligns with the principles of sentencing and adequately reflects the nature and circumstances of the offending.

Orders