John Henry Segar v The Queen - [2012] HCASL 143

JOHN HENRY SEGAR
v
THE QUEEN
[2012] HCASL 143
M39/2012

The applicant pleaded guilty in the County Court of Victoria to numerous sophisticated and carefully planned crimes against property. The total amount of the sums involved was $350,271.68. Judge Lacava sentenced the applicant to seven years imprisonment. The non-parole period was set at four years and eight months. The applicant had a bad record for crimes against property extending back to 1976.
The Court of Appeal of the Supreme Court of Victoria (Weinberg JA) heard an application for leave to appeal against sentence based on the sole ground that the sentence was manifestly excessive. Weinberg JA dismissed the application. The applicant then filed another application for leave to appeal based on four grounds. The Court of Appeal of the Supreme Court of Victoria (Maxwell P and Harper JA) dismissed that application for leave to appeal. Harper JA described the four grounds thus:
"(1)The learned sentencing judge erred by failing to give proper regard to the sentencing principles determined in R v Verdins[1] when sentencing a mentally ill offender.
(2)The learned sentencing judge erred by failing to give any weight to rehabilitation.
(3)The learned sentencing judge erred by failing to give any weight to the gambling disorder as a mitigating factor.
(4)The learned sentencing judge erred by failing to give adequate regard to the principles of totality and as such imposed sentences that were manifestly excessive, both individually and collectively."
[1](2007) 16 VR 269.
The applicant relied in mitigation on his long-standing depressive disorder, which in turn caused a pathological gambling disorder. The Court of Appeal found that the sentencing judge had taken into account the applicant's depressive disorder in reducing his moral culpability. But it said that in view of the applicant's capacity "to put into effect sophisticated schemes for defrauding others", the disorder operated only as a minor mitigating factor. The Court of Appeal held that the sentence was not manifestly excessive, that it was moderate, and that the non-parole period was benevolent.
The applicant's application for special leave to appeal to this Court fastens on the Court of Appeal's view that the four new grounds were only particulars of the original ground rejected by Weinberg JA. The grounds of appeal in the applicant's draft Notice of Appeal are:
"2.Whether a Court of Appeal is obligated to hear and determine each ground of appeal submitted and argued, and;
3.Whether the Victorian Supreme Court of Appeal denied the appellant natural justice by grouping four singular grounds of appeal under the umbrella of one general ground of manifest excess, and;
4.Whether by so doing the Victorian Supreme Court of Appeal failed to give proper regard and/or ignored the relevant sentencing principles assayed from their earlier judgment in R v Verdins (2007) 16 VR 269, and;
5.Whether by failing to give proper regard and/or ignoring those principles the Victorian Supreme Court of Appeal perpetuated the significant errors of sentencing law and principle handed down in the Melbourne County Court…

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.

Keep reading for free

Create a free CaseChat account to read John Henry Segar v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] HCASL 143
Decision Date

CaseChat Overview and Summary

John Henry Segar applied for special leave to appeal against the Court of Appeal of the Supreme Court of Victoria's decision to dismiss his application for leave to appeal against his sentence. The applicant had pleaded guilty to numerous sophisticated and carefully planned crimes against property, with the total amount of the sums involved being $350,271.68. Judge Lacava sentenced the applicant to seven years imprisonment, with a non-parole period of four years and eight months. The Court of Appeal dismissed the applicant's application for leave to appeal on the grounds that the sentence was not manifestly excessive and that the non-parole period was benevolent. The applicant now seeks special leave to appeal to this Court.

The legal issues before the Court were whether the Court of Appeal was obligated to hear and determine each ground of appeal submitted and argued, whether the Victorian Supreme Court of Appeal denied the appellant natural justice by grouping four singular grounds of appeal under the umbrella of one general ground of manifest excess, whether the Court of Appeal failed to give proper regard and/or ignored the relevant sentencing principles from their earlier judgment in R v Verdins, and whether by failing to give proper regard and/or ignoring those principles the Court of Appeal perpetuated the significant errors of sentencing law and principle handed down in the Melbourne County Court.

The Court found that even if the Court of Appeal erred in the manner alleged by the applicant, it is impossible to see how the process advocated by the applicant could have led to a better outcome. An appeal would therefore be futile. The Court of Appeal did deal, and deal correctly, with the applicant's mental state, which relates to grounds (1) and (3) of the grounds in the Court of Appeal. Further, ground (4) was only a stepping stone to a submission that the sentence was manifestly excessive. Once it is decided that the sentence was not manifestly excessive, as Weinberg JA correctly thought, the possibility that a failure to have regard to the principles of totality might have led to a conclusion that the sentence was manifestly excessive does not matter. The applicant's written submissions were unusually capable for a litigant in person, but the problem for the applicant is that there is no injustice in the outcome at which the Court of Appeal arrived.

The application for special leave to appeal is dismissed. Pursuant to r 41.10.5, the Registrar is directed to draw up, sign and seal an order dismissing the application.

Orders