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Pedersen v The Queen

Pedersen v The Queen

Case [2013] VSCA 321 19 November 2013

Appeal

Criminal Liability

Sentencing

Obtaining Property by Deception

Obtaining Financial Advantage by Deception

Furnishing False Information

Criminal Law

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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…

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 Pedersen v The Queen

Details

AGLC: Pedersen v The Queen [2013] VSCA 321
Case: [2013] VSCA 321
Decision Date: 19 November 2013

CaseChat Overview and Summary

The case of Pedersen v The Queen involved an appeal against conviction and sentence for a company director who had been found guilty of multiple counts of obtaining property by deception, obtaining financial advantage by deception, and furnishing false information. The trial court found the defendant had misappropriated company funds over a significant period. The defendant appealed both the conviction and the sentence imposed, arguing that the charge was unbalanced, the sentence was manifestly excessive, and there were other mitigating factors.

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