DPP v Leimonitis (Unreported, County Court of Victoria, Judge Higham, 27 April 2018)
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CRIMINAL LAW — Sentence — Appeal — Obtaining financial advantage by deception — ‘Rolled up’ charge involving 25 transactions — Bogus insurance claims — Payment on bogus claims exceeded $200,000 — Applicant pleaded guilty — Sentenced to one year and nine months’ imprisonment with non-parole period of 12 months — Whether manifestly excessive — Relatively youthful offender suffering depression and anxiety — General deterrence, denunciation and punishment relevant — Leave to appeal refused.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr P Chadwick QC with Mr R Edney
Powerhouse Law Australia
For the Crown
Mr M D Phillips
Mr John Cain, Solicitor for Public Prosecutions
PRIEST JA:
Introduction
On 15 December 2017, the applicant, now aged 27 years,[1] pleaded guilty in the County Court to a single ‘rolled up’ charge of obtaining a financial advantage by deception.[2]
[1]Her date of birth is 15 July 1991.
[2]Crimes Act 1958, s 82(1). The maximum penalty is 10 years’ imprisonment.
Following a plea, on 27 April 2018 the judge sentenced the applicant to be imprisoned for one year and nine months, and fixed a non-parole period of 12 months.[3]
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to be imprisoned for two years and six months, with a non-parole period of two years.
The applicant seeks leave to appeal against her sentence on a single ground which asserts that the sentence is manifestly excessive. A number of ‘particulars’ are relied upon:
(a)Plea of guilty at the earliest possible opportunity;
(b)Genuine remorse;
(c)Full and frank admissions to her employer and the police;
(d)Delay between investigation and resolution;
(e)Payment of some restitution;
(f)No prior convictions;
(g)Positive character references;
(h)No subsequent or pending matters;
(i)Youthful offender;
(j)Substantial and enduring impact of the applicant’s ‘abandonment’ by her parents at a young age;
(k)Socially isolated;
(l)Finding by a psychologist that the applicant was ‘suffering from undiagnosed depression and debilitating anxiety during the period of the offending’;
(m)Voluntary engagement in counselling;
(n)Working two jobs at the time of sentence to support herself and pay restitution;
(o)Suffering from an ongoing depressive disorder;
(p)Very low risk of re-offending;
(q)Positive finding that the applicant had ‘excellent’ prospects of rehabilitation;
(r)First term of imprisonment;
(s)Prison likely to weigh more heavily on the applicant because of her background.
In my opinion, the sentence imposed in the County Court is within the range of those open in the proper exercise of the sentencing discretion. Leave to appeal must thus be refused.
Circumstances of the offending
During the period of the offending — between…
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
AGLC
Leimonitis v The Queen [2018] VSCA 198
Case
[2018] VSCA 198
Decision Date
CaseChat Overview and Summary
In the case of Leimonitis v The Queen, the appellant was convicted of obtaining financial advantage by deception, involving multiple fraudulent insurance claims amounting to over $200,000. The matter came before the court on appeal against sentence, following the appellant’s guilty plea to a charge that included 25 individual transactions. The primary issue before the court was whether the sentence imposed, one year and nine months’ imprisonment with a non-parole period of 12 months, was manifestly excessive.
The court examined the relevant principles of sentencing, considering the nature and circumstances of the offending, the appellant's personal circumstances, and the purposes of sentencing including general deterrence, denunciation, and punishment. The appellant, a relatively young offender, was suffering from depression and anxiety at the time of sentencing. Despite these mitigating factors, the court held that the sentence was not manifestly excessive. The court considered the gravity of the offending, the significant financial loss caused to the victims, and the need to uphold the integrity of the insurance system. The court also noted the appellant's guilty plea and remorse as mitigating factors, but these were not sufficient to reduce the sentence to a level deemed manifestly excessive.
In conclusion, the court refused the appellant leave to appeal against sentence. The reasoning and balance of the considerations led the court to find that the sentence was proportionate to the offending and appropriate given the circumstances. The appellant’s appeal was dismissed, and the original sentence was upheld.