Loftus v The Queen

Case [2019] VSCA 24


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0227

STEPHEN LOFTUS Applicant
v
THE QUEEN Respondent

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JUDGES: WHELAN AP and NIALL JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 4 February 2019
DATE OF JUDGMENT: 19 February 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 24
JUDGMENT APPEALED FROM: [2018] VCC 1489 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to a total effective sentence of three years’ imprisonment, with a non-parole period of two years, on 14 burglary, theft, attempt to obtain property by deception, obtaining property by deception and blackmail related charges – Applicant not Australian citizen – 12 month sentence gave rise to automatic cancellation of visa under s 501(3A) of Migration Act 1958 (Cth) – Sentencing discretion re-opened – Application for leave granted and appeal allowed – Total effective sentence of two years’ imprisonment imposed with a non-parole period of 12 months – Allouch v The Queen [2018] VSCA 244 applied.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr C K Wareham Tait Lawyers
For the Crown Mr B L Sonnet Mr J Cain, Solicitor for Public Prosecutions

WHELAN AP
NIALL JA:

Introduction

  1. On 12 July 2018, the applicant pleaded guilty in the County Court to two charges of burglary, three charges of theft, seven charges of obtaining property by deception, one charge of attempt to obtain property by deception and one charge of blackmail and was sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of two years. The sentence was structured as follows:[1]

    [1]DPP v Stephen Loftus [2018] VCC 1489, 59–60 (Judge Trapnell) (‘Sentencing Reasons’).

Charge on Indictment Offence Maximum Sentence

Cumulation

1 Burglary [Crimes Act 1958 s 76(1)] 10 years 12 months’ imprisonment 5 months
2 Theft [Crimes Act 1958 s 74] 10 years 6 months’ imprisonment (aggregate sentence for Charges 2, 4, 5, 6, 7, 8, 9 and 10) 3 months
3 Theft [Crimes Act 1958 s 74]

10 years

4 months’ imprisonment 2 months
4 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2
5 Attempt to obtain property by deception [Crimes Act 1958 ss 81 and 321M] 5 years See Charge 2
6 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2
7 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2
8 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2

9

Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2

10

Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2
11 Burglary [Crimes Act 1958 s 76(1)] 10 years 14 months’ imprisonment 6 months
12 Theft [Crimes Act 1958 s 74] 10 years 6 months’ imprisonment 2 months
13 Blackmail [Crimes Act 1958s 87] 15 years 18 months’ imprisonment Base
14 Obtain property…

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Loftus v The Queen [2019] VSCA 24
Case
[2019] VSCA 24
Decision Date

CaseChat Overview and Summary

The case of Loftus v The Queen involved an applicant who had been sentenced to a total effective sentence of three years’ imprisonment, with a non-parole period of two years, following his conviction on various charges including burglary, theft, and deception. The applicant, not being an Australian citizen, faced the consequence of his 12-month sentence automatically cancelling his visa under section 501(3A) of the Migration Act 1958. This led to an appeal against the sentence, with the application for leave to appeal being granted and the appeal subsequently allowed.

The primary legal issues before the court were whether the original sentence was appropriate given the applicant’s non-citizen status and the impact of his sentence on his visa status. The court had to consider the appropriate exercise of sentencing discretion in light of the unique circumstances presented by the applicant’s immigration status and the potential consequences of his sentence. The decision in Allouch v The Queen [2018] VSCA 244 was cited as relevant precedent.

The court reasoned that the original sentence did not sufficiently consider the applicant's non-citizen status and the potential consequences of the sentence on his visa. By imposing a 12-month sentence, the applicant faced automatic cancellation of his visa, which was an outcome that needed to be weighed in the sentencing process. The court determined that the original sentence was excessive and did not appropriately balance the need for punishment with the potential collateral consequences on the applicant's immigration status. Consequently, the court reduced the total effective sentence to two years’ imprisonment with a non-parole period of 12 months.

The final orders of the court were to reduce the applicant's total effective sentence to two years’ imprisonment with a non-parole period of 12 months. This decision reflected the court’s consideration of the applicant's non-citizen status and the impact of the sentence on his visa status.

Orders

Orders of the court

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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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