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Melnikas v The Queen

Melnikas v The Queen

Case [2016] VSCA 112 19 May 2016

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0010

CHRISTINE MELNIKAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 May 2016
DATE OF JUDGMENT:	19 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 112
JUDGMENT APPEALED FROM:	[2015] VCC 1763 (Judge Lewitan)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Theft (six charges) – Applicant stole $209,000 from community organisation over 5 year period – Applicant employed in position of trust in community organisation – Applicant sentenced to term of imprisonment of 18 months and CCO of 18 months with 250 hours of unpaid community work – Whether combined term of imprisonment and CCO was manifestly excessive – Not reasonably arguable that sentence manifestly excessive – DPP v Bulfin v The Queen [1998] 4 VR 114, Boulton v The Queen [2014] VSCA 342 and Dyason v The Queen [2015] VSCA 120 referred to – Sentencing Act 1991, s 5(4C) – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Doogue O’Brien George
For the Crown	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

SANTAMARIA JA
BEACH JA:

Introduction

This is yet another application for leave to appeal against a sentence imposed by a sentencing judge that either could have involved, or did involve, the imposition of a community correction order (‘CCO’). In the present case, the application concerns a combination sentence imposed that did involve a CCO as one of its elements.

On 6 October 2015, the applicant pleaded guilty in the County Court to six charges of theft. The maximum term of imprisonment for theft is 10 years.[1]
[1]Crimes Act 1958, s 74.

Following a plea hearing, on 11 December 2015, the applicant was sentenced to an aggregate term of imprisonment of 18 months together with a CCO for a period of a further 18 months. As part of the terms of the CCO, the applicant was ordered to perform 250 hours of unpaid community work, and to undergo mental health assessments and treatment as directed in accordance with the order. Further, pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, the judge would have sentenced the applicant to a term of imprisonment of 27 months followed by a 27 month CCO.

The applicant seeks leave to appeal against the sentence imposed by the sentencing judge. The applicant’s proposed grounds of appeal are as follows:

The sentence of 18 months immediate imprisonment with no non-parole period and a community correction order of 18 months with a condition of 250 hours community work was manifestly excessive.
1.The learned Judge failed to pay any or any sufficient regard to the following:

(i) the value of monies stolen
(ii)the guilty plea and both its value to the community and as an indication of genuine remorse

(iii) the prospects for…

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 Melnikas v The Queen

Details

AGLC: Melnikas v The Queen [2016] VSCA 112
Case: [2016] VSCA 112
Decision Date: 19 May 2016

CaseChat Overview and Summary

The case of Melnikas v The Queen involved the applicant, who had been convicted on six counts of theft. The applicant had embezzled $209,000 over a period of five years while employed in a position of trust within a community organisation. Following the conviction, the applicant was sentenced to a term of imprisonment of 18 months, a community corrections order of 18 months, and an additional 250 hours of unpaid community work. The applicant sought leave to appeal against the sentence, arguing that the combined term of imprisonment and the community corrections order was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the sentence should be reviewed, considering the cumulative effect of the imprisonment and the community corrections order. The court considered the relevant legislative framework, particularly section 5(4C) of the Sentencing Act 1991, and examined precedents including DPP v Bulfin v The Queen [1998] 4 VR 114, Boulton v The Queen [2014] VSCA 342, and Dyason v The Queen [2015] VSCA 120. The court found that the sentence did not constitute a manifestly excessive punishment, given the breach of trust and the significant amount of money stolen.

The court's reasoning was grounded in the cumulative nature of the sentence and the breach of trust. It held that the sentence was within the range of appropriate penalties for the offences committed. The court emphasised that the sentence should reflect the seriousness of the crime, the culpability of the offender, and the need for general and specific deterrence. The court concluded that it was not reasonably arguable that the sentence was manifestly excessive, and thus dismissed the application for leave to appeal.

Orders