SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0286
| DALE LEIGH PEDERSEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, PRIEST and COGHLAN JJA | |||
| WHERE HELD | MELBOURNE | |||
| DATE OF HEARING | 21 October 2013 | |||
| DATE OF JUDGMENT | 19 November 2013 | |||
MEDIUM NEUTRAL CITATION: | [2013] VSCA 321 | |||
JUDGMENT APPEALED FROM | R v Pedersen (Unreported, County Court of Victoria, Judge Lacava) | |||
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CRIMINAL LAW – Appeal – Conviction – Obtaining property by deception, obtaining financial advantage by deception, furnishing false information (25 counts) – Company director – Misappropriation of company funds – Convicted after trial – Whether charge unbalanced – Ground abandoned during argument – Manifestly hopeless – Ground should not have been advanced.
CRIMINAL LAW – Appeal – Sentence – Obtaining property by deception, obtaining financial advantage by deception, furnishing false information (25 counts) – Company director – Misappropriation of company funds – Convicted after trial – Total effective sentence 10 years’ imprisonment, non-parole period 7 years – Whether manifestly excessive – Relevant prior convictions – Continuing criminal enterprise offender – Subsequent offending of same kind – Delay – Absence of motive of personal gain – Totality – Whether sentence disproportionate to overall criminality – Sentence within range – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Pena-Rees | Slade & Parsons |
| For the Crown | Mr G J C Silbert SC with Mr S P Devlin | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour gives, I too would refuse leave to appeal against sentence. I respectfully agree with what his Honour has said about the abandoned application for leave to appeal against conviction.
PRIEST JA:
Introduction
The Court initially had before it applications for leave to appeal against both conviction and sentence.
During the course of oral argument, leave was given to abandon the application for leave to appeal against conviction.
Counsel for the applicant did, however, persist with the application with respect to sentence. For the reasons that follow, that application should be refused.
The abandoned application for leave to appeal against conviction
Although, as I have said, the application for leave to appeal against conviction was abandoned in the running, I cannot leave the subject without further comment. The application was, it must be understood, devoid of merit. A single ground claimed that justice miscarried because the judge’s trial charge was unbalanced. Specifically, the ground alleged the prosecution’s case was outlined in detail, but by contrast the applicant’s position was predominantly briefly expressed as ‘he did not do it’.
Within a very short time of oral argument commencing it became clear that this ground was bereft of substance. Indeed, it was utterly hopeless. So much should have been obvious to counsel charged with the responsibility of drawing the written case. Not only was the criticism of lack of balance unjustified, but to the
contrary, the judge’s charge was…
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- AGLC
- Pedersen v The Queen [2013] VSCA 321
- Case
- [2013] VSCA 321
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the charge against the defendant was unbalanced, which the defendant abandoned during the argument, and whether the sentence imposed was manifestly excessive. The court considered the defendant's prior criminal history, the nature of the offending, and the totality of the circumstances, including the absence of personal gain as a motive and the delay in reporting the offences. The court also examined whether the sentence was disproportionate to the overall criminality and whether it was within the appropriate range for such offences.
The court found that the ground regarding the charge being unbalanced was abandoned and should not have been advanced. It held that the sentence, while significant, was not manifestly excessive. The court considered the totality of the circumstances, including the defendant's prior convictions, the nature of the offending, and the delay in reporting. The court found that the sentence was within the appropriate range for the offences committed and was not disproportionate to the overall criminality. Consequently, the application for leave to appeal was refused.
No specific orders were made beyond the refusal of leave to appeal. The conviction and sentence of the defendant remained as determined by the trial court.
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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