Machado v The King - [2025] VSCA 77

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0008

EIDER JOSE HENRIQUEZ MACHADO	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2025
DATE OF JUDGMENT:	14 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 77
JUDGMENT APPEALED FROM:	DPP v Henriquez Machado [2024] VCC 1792 (Judge Maidment)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A
SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Obtaining financial advantage by deception – Attempting to obtain financial advantage by deception – Applicant Chief Financial Officer at construction company – Applicant obtained over $900,000 from company through unauthorised use of credit cards and creation of false invoices – Applicant attempted to obtain over $43,000 by similar means – Whether sentencing judge erred by rejecting evidence of remorse – Whether sentences manifestly excessive – No reasonable prospect that Court of Appeal would reduce total effective sentence – Sentences not manifestly excessive – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1)(b).

Barbaro v The Queen (2012) 226 A Crim R 354; DPP v Bulfin [1998] 4 VR 114; Dyason v The Queen (2015) 251 A Crim R 366, considered.

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Counsel
Applicants:		Ms BF Franjic
Respondent:		Mr J O’Connor
Solicitors
Applicants:	Chambers Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA:

Introduction

The applicant pleaded guilty in the County Court to four charges of obtaining a financial advantage by deception and two charges of attempting to obtain a financial advantage by deception. On 8 November 2024, he was sentenced as follows.

Charge

Offence

Maximum

Sentence

Cumulation

Indictment P11346465.1

1 Obtaining financial advantage by deception[1] 10 years 2 years 6 months

2 Obtaining financial advantage by deception[2] 10 years 30 months Base

3 Obtaining financial advantage by deception[3] 10 years 21 months 4 months

4 Obtaining financial advantage by deception[4] 10 years 16 months –

5 Attempt to obtain financial advantage by deception[5] 5 years 8 months –

6 Attempt to obtain financial advantage by deception[6] 5 years 5 months –

Total Effective Sentence: 3 years and 4 months’ imprisonment

Non-Parole Period: 2 years

Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: N/A

Section 6AAA Statement: 5 years’ imprisonment with non-parole period of 3 years

Other Relevant Orders: N/A
[1]Contrary to s 82(1) of the Crimes Act 1958.
[2]Contrary to s 82(1) of the Crimes Act 1958.
[3]Contrary to s 82(1) of the Crimes Act 1958.
[4]Contrary to s 82(1) of the Crimes Act 1958.
[5]Contrary to s 321M and s 82(1) of the Crimes Act 1958.
[6]Contrary to s 321M and s 82(1) of the Crimes Act 1958.

Charges 1 and 2 were ‘rolled-up’ charges.

The offending

The applicant obtained employment as the Chief Financial Officer at the victim construction company in April 2021. There were conditions placed upon the applicant’s…

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.

Continue reading Machado v The King

Details

AGLC: Machado v The King [2025] VSCA 77
Case: [2025] VSCA 77
Decision Date: 14 April 2025

CaseChat Overview and Summary

The applicant, Machado, applied for leave to appeal against his sentence determined by a single judge under section 315 of the Criminal Procedure Act 2009. Machado had been found guilty of obtaining financial advantage by deception and attempting to obtain financial advantage by deception. He was the Chief Financial Officer at a construction company and had obtained over $900,000 through the unauthorised use of credit cards and the creation of false invoices. Additionally, he attempted to obtain over $43,000 by similar means. The applicant argued that the sentencing judge erred in rejecting evidence of his remorse and that the sentences were manifestly excessive.

The court considered whether the sentencing judge erred in rejecting the evidence of remorse and whether the sentences were manifestly excessive. The court held that there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence. Furthermore, the court found that the sentences were not manifestly excessive. The court examined the principles and authorities relevant to the assessment of sentences, including Barbaro v The Queen, DPP v Bulfin, and Dyason v The Queen. The court concluded that the sentencing judge had properly considered the relevant principles and had not erred in rejecting the evidence of remorse.

The court ultimately refused the application for leave to appeal against the sentence. The court found that the sentences imposed were not manifestly excessive and that there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence. The court's decision was based on a thorough analysis of the sentencing principles and the relevant authorities. The applicant's application for leave to appeal was dismissed, and the original sentences were upheld.

No orders were made for costs.

Orders