Koch v The Queen

[2011] VSCA 435

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2010 0284

CHRISTOPHER PHILIP KOCH	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, BUCHANAN and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 May 2011
DATE OF JUDGMENT	15 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 435
JUDGMENT APPEALED FROM	R v Koch (Unreported, County Court of Victoria, Judge Douglas, 22 July 2010)

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CRIMINAL LAW – Appeal – Conviction – Obtaining property by deception, obtaining a financial advantage by deception – Post-offence conduct – Flight – Whether admissible – Whether referable to some or all of the offences charged – Whether jury direction appropriate – Jury discharge applications rejected – Whether high degree of necessity – Whether miscarriage of justice – Application refused.

CRIMINAL LAW – Appeal – Conviction – Making available a prescribed interest – Single count substantiated by multiple instances of fraud – Whether duplicitous – Purported interest fictitious – Whether possible to ‘make available’ – Conviction quashed – Corporations Law s 1064, Corporations Act 2001 (Cth) s 1401.

CRIMINAL LAW – Appeal – Sentence – Obtaining property by deception (15 counts), obtaining financial advantage by deception (7 counts) – Total effective sentence 13y 2m, non-parole period 10y – Continuing criminal enterprise offences – Doubling of applicable maximum – Whether individual and overall sentences manifestly excessive – Importance of consistency in sentencing – Relevance of amounts defrauded – Appeal allowed – Resentenced – Total effective sentence 9y 10m, non-parole period 7y 6m.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Croucher with Ms C Boston	Dean Cole & Associates
For the Crown	Mr D Gurvich	Commonwealth Director of Public Prosecutions

MAXWELL P:

1 Following a trial in the County Court, the applicant was convicted of 15 counts of obtaining property by deception, seven counts of obtaining a financial advantage by deception and one count of making available a prescribed interest, contrary to s 1064 of the Corporations Law.[1]  He was sentenced as follows:

[1]Taken to be included in the Corporations Act 2011 (Cth) by virtue of s 1401 of that Act.

Count	Offence	Maximum	Sentence	Cumulation
1.	Obtaining property by deception	10y	3y	5m
2.	Obtaining financial advantage by deception	10y	3y	5m
3.	Obtaining property by deception	10y	1y	1m
4.	Obtaining property by deception	10y	5y	6m
5.	Obtaining property by deception	10y	5y	6m
6.	Obtaining property by deception	10y	3y	5m
7.	Obtaining property by deception	10y	15m	—
8.	Obtaining financial advantage by deception	20y (continuing criminal enterprise)[2]	5y	6m
9.	Obtaining financial advantage by deception	20y (continuing criminal enterprise)	6y	Base
10.	Obtaining financial advantage by deception	20y (continuing criminal enterprise)	3y	5m
11.	Obtaining financial advantage by deception	20y (continuing criminal enterprise)	3y	5m
12.	Obtaining property by deception	10y	1y	1m
13.	Obtaining property by deception	10y	1y	1m
14.	Obtaining property by deception	10y	1y	1m
15.	Obtaining property by deception	10y	6m	–
16.	Obtaining property by deception	10y	20m	2m
17.	Obtaining financial…