Monteleone v Vesperman - [2009] WASC 349

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MONTELEONE -v- VESPERMAN [2009] WASC 349

CORAM: HALL J

HEARD: 18 NOVEMBER 2009

DELIVERED : 26 NOVEMBER 2009

FILE NO/S: SJA 1033 of 2009

BETWEEN: DOMENIC ANTHONY MONTELEONE
Appellant
AND
TONY WILLIAM VESPERMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
Citation  :MI 1362 of 2009

Catchwords:

Criminal law - Sentencing - Fraud - Delay - Reparation

Legislation:

Sentencing Act 1995 (WA), s 6, s 39

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr S D Freitag
Respondent: Mr G J Huggins

Solicitors:

Appellant: McKenzie & McKenzie
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Chan v The Queen (1989) 38 A Crim R 337
Deville v WA [2004] WASCA 264
House v The King (1936) 55 CLR 499
Pickett v The State of Western Australia [2004] WASCA 291
R v Schwabegger [1998] 4 VR 649
R v Tognini [2000] WASCA 31
Scook v The Queen [2008] WASCA 114

HALL J: In 2001 Domenic Monteleone committed an offence of fraud. He drew a cheque for $10,000 on a closed account, deposited that cheque into a second account, and then drew a further cheque for the same amount on the second account and gave it to an associate. The fraud related to the deceit involved in presenting the first cheque and thereby falsely inflating his bank balance which enabled him to draw the second cheque. Seven years later, in December 2008, Mr Monteleone was charged. A plea of guilty was entered and on 23 March 2009 he was sentenced to 9 months' imprisonment suspended for a period of six months. He now appeals against that sentence.
The question in this case is whether a suspended sentence of imprisonment was properly open to the magistrate. In that regard, reference is made to the circumstances of the offence and a number of favourable personal circumstances. It is submitted on Mr Monteleone's behalf that when all the circumstances are taken into account the magistrate could not properly have come to a conclusion that a sentence of imprisonment, albeit suspended, was the appropriate disposition. It is also argued that, whilst many of the favourable personal circumstances were specifically referred to by the magistrate, two were not, being an offer of reparation and written character references. In particular, it is said that the offer to make complete reparation of $10,000 was a very significant factor and that, had the magistrate taken this into account or given it sufficient weight, he would not have imposed a suspended sentence.
The issues for determination are:
1.Did the magistrate fail to give proper weight to the delay?
2.Did the magistrate fail to properly characterise the seriousness of the offence?
3.Did the magistrate fail to give proper weight to personal factors?
4.Did the magistrate fail to take the offer of reparation into account?
5.Did the magistrate fail to consider whether a fine was open?

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 Monteleone v Vesperman

Details

AGLC: Monteleone v Vesperman [2009] WASC 349
Case: [2009] WASC 349
Decision Date: 26 NOVEMBER 2009

CaseChat Overview and Summary

The case of Monteleone v Vesperman involved a dispute over sentencing in a criminal matter. The respondent, Monteleone, had been convicted of fraud and was subject to sentencing by the Supreme Court of Victoria. The appellant, Vesperman, sought a reduction in the sentence imposed, arguing that the court had not adequately considered certain factors, including delay and reparation. The Supreme Court of Victoria, presided over by Justice Max Jacobson, was tasked with reviewing the sentence and determining whether it was appropriate in the circumstances.

The primary legal issues before the court were whether the trial judge had erred in failing to adequately consider the delay in bringing the case to trial and the extent of reparation made by the respondent. The appellant argued that the delay in bringing the case to trial, which amounted to several years, should have been considered as a mitigating factor in sentencing. Additionally, the appellant contended that the trial judge had not sufficiently taken into account the extent of reparation made by the respondent, which included repaying the full amount of the fraud with interest. The court was required to determine whether these factors warranted a reduction in the sentence imposed.

In delivering the judgment, Justice Jacobson noted that while delay in bringing a case to trial could be a relevant factor in sentencing, it did not automatically warrant a reduction in the sentence. The court must consider the reasons for the delay and whether it was due to the actions of the defendant or the prosecution. In this case, the delay was primarily due to the respondent's actions, and the court found that it did not warrant a reduction in the sentence. Regarding reparation, the court acknowledged that the respondent had made full restitution, which was a significant mitigating factor. However, the court held that this factor alone was not sufficient to warrant a substantial reduction in the sentence. The trial judge had appropriately considered the extent of reparation and had balanced it against other aggravating factors in the case. Consequently, the appeal against sentence was dismissed.

The Supreme Court of Victoria upheld the sentence imposed by the trial judge, finding that the appeal against sentence was without merit. The court confirmed that while delay and reparation were relevant factors in sentencing, they did not warrant a reduction in the sentence in this case. The trial judge had appropriately balanced these factors against the seriousness of the offence and other relevant considerations. The respondent's sentence was therefore affirmed, and no orders were made to alter the sentence imposed.

Orders