[2011] TASCCA 9
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Johnstone v Tasmania [2011] TASCCA 9
PARTIES: JOHNSTONE, Dylan Matthew
v
STATE OF TASMANIA
FILE NO/S: 590/2011
DELIVERED ON: 2 August 2011
DELIVERED AT: Hobart
HEARING DATE: 30 May 2011
JUDGMENT OF: Evans, Blow and Porter JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Computer-related fraud – False online betting credits of $756,000 – Loss of $495,000 – Gambling addiction.
R v Grossi (2008) 23 VR 500, followed.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: D G Coates SC
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASCCA 9
Number of paragraphs: 17
Serial No 9/2011
File No 590/2011
DYLAN MATTHEW JOHNSTONE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
BLOW J
PORTER J
2 August 2011
Order of the Court
Appeal allowed.
Parole order made on 2 July 2010 varied to provide that the appellant is to be eligible for parole when he has served 21 months of his sentence.
Serial No 9/2011
File No 590/2011
DYLAN MATTHEW JOHNSTONE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
2 August 2011
I agree with the reasons of Blow J and the orders he proposes.
File No 590/2011
DYLAN MATTHEW JOHNSTONE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
2 August 2011
This is a sentencing appeal. The appellant pleaded guilty to 362 charges of computer-related fraud, contrary to the Criminal Code, s257B. These crimes were committed over a period of only 6½ weeks, from 25 November 2009 to 8 January 2010 inclusive. The appellant, who lived in Warrnambool, Victoria, found a flaw in an on-line payment system, sent 362 fraudulent computer messages to the Tote Tasmania web server, and obtained false credits totalling $756,914 to a TAB betting account in his name. On 2 July 2010 Tennent J sentenced him to 3½ years' imprisonment, with effect from 21 June 2010, and ordered that he was to be eligible for parole when he had served 2½ years of that sentence. He has appealed, and contends that both the head sentence and the non-parole period were manifestly excessive.
The flaw that the appellant found was not in Tote Tasmania's systems, but in the system of an intermediary known as POLi. POLi provided a service which allowed consumers to purchase goods and services from merchants without providing their bank account details to the merchants. In September 2009 the appellant found a way of causing POLi to send false information to a merchant's web server, stating that funds had been received when they had not. On 14 November 2009 he opened a Tote Tasmania betting account using that company's website. He made a number of unsuccessful attempts to create false credits in that account in the following days,…
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- AGLC
- Johnstone v Tasmania [2011] TASCCA 9
- Case
- [2011] TASCCA 9
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the sentence imposed was manifestly excessive, thereby justifying interference on appeal. This required the Court to consider the principles governing appeals against sentence, particularly in cases involving fraud and the impact of addiction on culpability and sentencing.
The Court allowed the appeal, finding that the original sentence was indeed too severe. In its reasoning, the Court acknowledged the seriousness of the offence and the substantial financial loss. However, it gave significant weight to the applicant's gambling addiction as a mitigating factor, which diminished his moral culpability. The Court applied the principle that sentences should reflect not only the gravity of the offence but also the individual circumstances of the offender, including any underlying conditions that contributed to their offending behaviour.
Consequently, the Court varied the parole order made on 2 July 2010. The appellant was made eligible for parole upon serving 21 months of his sentence, a reduction from the original period.
Orders
Orders of the court
1. Appeal allowed.
2. Parole order made on 2 July 2010 varied to provide that the appellant is to be eligible for parole when he has served 21 months of his sentence.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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