Mendoza-Cortez v the Queen - [2016] VSCA 302

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0161

JOANNE MENDOZA-CORTEZ

THE QUEEN

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JUDGES:	SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2016
DATE OF JUDGMENT:	5 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 302
JUDGMENT APPEALED FROM:	DPP v Mendoza-Cortez [2016] VCC 1026 (Judge Cannon)

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CRIMINAL LAW – Sentence – Obtain property by deception – Obtain financial advantage by deception – Manifest excess – Whether sentencing judge properly took into account principle of totality and delay – Leave to appeal granted – Applicant resentenced to one year and three months with a 9 month non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr J Jassar	Melasecca Kelly & Zayler
For the respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA
BEACH JA:

The applicant has applied for leave to appeal against her sentence on the grounds of manifest excess and on the further ground that the sentencing judge did not consider the imposition of a fully suspended sentence or a community correction order. Fundamental to the application is the fact that, during roughly the same period of time, the applicant had embarked upon a spree of obtaining property and financial advantage by deception. The first group of offences took place between July 2006 and November 2007; the second between November 2007 and late August 2008. Each group of offences employed the same modus operandi.

In December 2011, the applicant was sentenced to a significant period of imprisonment for the first group of offences. Well after her release, she was arrested for and charged with the second group of offences. In July 2016, she received a further custodial sentence. She now contends that the second sentencing judge did not give sufficient weight to the punishment she had already received and to her efforts to rehabilitate herself in the period before the first punishment was imposed and since she was released.

The first group of offences

Between July 2006 and November 2007, the applicant defrauded five investors of $266,400 by falsely representing that she could provide high returns by purchasing large amounts of stock, including perfumes, hair straighteners and clothes, and then selling them to various retailers. No such items were purchased or existed. On 5 December 2011, Judge Maidment sentenced the applicant to a total effective sentence of two years nine months’ imprisonment and ordered her to serve 22 months’ imprisonment before becoming eligible for parole. He also made compensation orders in respect of all of the victims.

On 5 December 2011, the applicant was sentenced (for the first group of offences) as follows:

Charge on indictment Offence Maximum Sentence Cumulation

1 Obtaining property by deception ($25,000) 10 18 months 3 months

2 Obtaining financial advantage by deception ($14,000) 10 18 months Nil

3 Obtaining financial advantage by deception ($17,500) 10 18 months Nil

4 Obtaining property by deception ($3,000) 10 12 months Nil

5 Obtaining property by deception ($9,500) 10 12 months Nil

6

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

Case: [2016] VSCA 302
Decision Date: 5 December 2016

CaseChat Overview and Summary

In the case of Mendoza-Cortez v the Queen, the applicant, Mendoza-Cortez, appealed against his sentence for obtaining property by deception and obtaining a financial advantage by deception. The case was heard in the High Court of Australia. Mendoza-Cortez was convicted and sentenced to imprisonment for a series of deceptions that resulted in financial losses to victims. The appeal centred on whether the sentencing judge appropriately applied the principle of totality and adequately considered the delay in bringing the case to trial.

The legal issues before the court were whether the sentencing judge had correctly applied the principle of totality and whether the delay in the proceedings should have been taken into account when determining the sentence. The principle of totality requires that the cumulative sentence for multiple offences not be manifestly excessive, and the delay in prosecution should be considered as a mitigating factor. The court had to assess whether the sentencing judge had erred in not sufficiently addressing these aspects.

The High Court found that the sentencing judge did not adequately consider the principle of totality, leading to a manifestly excessive sentence. Additionally, the delay in bringing the case to trial was not sufficiently weighed as a mitigating factor. The court held that these errors warranted a new sentencing hearing. Consequently, the High Court granted leave to appeal, quashed the original sentence, and ordered a resentencing. Mendoza-Cortez was subsequently resentenced to one year and three months imprisonment, with a non-parole period of nine months.

Orders