John Henry Segar v The Queen

[2012] HCASL 143

JOHN HENRY SEGAR

v

THE QUEEN

[2012] HCASL 143
M39/2012

1. 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.

2. 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.

3. 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.

4. 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 (sentencing Court), and;

   6.Whether as a result of all this the Victorian Supreme Court of Appeal denied the appellant a fair hearing of the appeal."

5. 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.  That is, even if the Court of Appeal committed one of the errors alleged, the outcome would only be that either this Court of the Court of Appeal would exercise the sentencing discretion afresh.  That process would not lead to a sentence lower than that passed by Judge Lacava.  An appeal would therefore be futile. 

6. In any event, 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.  If it was not manifestly excessive, whatever the problem on totality, it is immaterial to a contention that it was manifestly excessive.  By ground (2), the applicant referred to the question "whether rehabilitation was an appropriate consideration given the long history of undiagnosed mental illness of the applicant".  An answer is that rehabilitation would appear to be insignificant in view of the applicant's long history of crimes of dishonesty – a fact to which the Court of Appeal pointed.

7. The written submissions of the applicant, both to the Court of Appeal and to this Court, were unusually capable for a litigant in person.  The applicant appears to be aggrieved by the brevity of the Court of Appeal's judgment.  Brevity, particularly when the application before the Court of Appeal was only an application for leave, is not necessarily a vice in an age when its opposite is dangerously endemic.  The problem for the applicant is that there is no injustice in the outcome at which the Court of Appeal arrived.

8. The application is dismissed.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
13 November 2012 V.M. Bell