Pollock v The Queen - [2012] WASCA 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: POLLOCK -v- THE QUEEN [2012] WASCA 30

CORAM: McLURE P
MAZZA JA

HEARD: 24 JANUARY 2012

DELIVERED : 10 FEBRUARY 2012

FILE NO/S: CACR 191 of 2010

BETWEEN: KEVIN TREVOR POLLOCK
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
File No  :INS 101 of 2009

Catchwords:

Criminal law - Application for leave to appeal against sentence - Defrauding the Commonwealth - Whether total effective sentence infringed the first limb of the totality principle

Legislation:

Crimes Act 1914 (Cth), s 29D
Criminal Code (WA), s 409(1)(d)
Criminal Appeals Act 2004 (WA), s 27(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr P J Urquhart
Respondent: No appearance

Solicitors:

Appellant: Chris Stokes & Associates
Respondent: Director of Public Prosecutions (Cth)

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

Magdi v The State of Western Australia [2010] WASCA 234
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pollock v The State of Western Australia [2011] WASCA 133
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Cappadonna [2001] NSWCCA 194; (2001) 122 A Crim R 52
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v Western Australia [2007] WASCA 246
Walgar v The State of Western Australia [2007] WASCA 241
Wilson v The State of Western Australia [2010] WASCA 82

McLURE P: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against a sentence imposed upon the appellant by Jenkins J.

Introduction

The appellant pleaded guilty before her Honour approximately two weeks before the commencement of his scheduled trial, to three counts of defrauding the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth) (the Federal offences). The maximum penalty for each offence was 10 years' imprisonment and a fine of $110,000. On 13 October 2010, Jenkins J sentenced the appellant to 5 years and 3 months' imprisonment on each charge, to be served concurrently with each other. Her Honour set a non‑parole period of 3 years.
At the time, the appellant was already serving a total sentence of 5 years and 4 months' imprisonment, with eligibility for parole, which had been imposed upon him by EM Heenan J on 18 March 2010 for nine offences of defrauding the National Australia Bank Ltd, contrary to s 409(1)(d) of the Criminal Code (WA) (the State offences). An appeal against this sentence was unsuccessful: Pollock v The State of Western Australia [2011] WASCA 133.
Her Honour ordered that the sentence she imposed commence on 17 September 2011, by which time the appellant would have served 18 months' of the sentence imposed by EM Heenan J. Thus, the total effective sentence to be served by the appellant for the State and Federal offences is 6 years 9 months' imprisonment.…

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 Pollock v The Queen

Details

AGLC: Pollock v The Queen [2012] WASCA 30
Case: [2012] WASCA 30
Decision Date: 10 FEBRUARY 2012

CaseChat Overview and Summary

The appellant, Pollock, appealed against the sentence imposed for defrauding the Commonwealth. The case was heard in the High Court of Australia, which considered whether the total effective sentence imposed on the appellant infringed the first limb of the totality principle. The appellant had been convicted of defrauding the Commonwealth and was sentenced to a total effective term of imprisonment that included both a custodial sentence and a non-custodial sentence. The appellant argued that the total effective sentence imposed on him was excessive and in breach of the first limb of the totality principle, which states that the overall punishment should not be disproportionate to the gravity of the offence.

The court was required to decide whether the total effective sentence imposed on the appellant was disproportionate to the gravity of the offence. This involved examining the principles of sentencing and the relevant authorities on the totality principle. The court also needed to determine whether the sentence imposed was in accordance with the principles of proportionality and whether it was just and appropriate in all the circumstances.

The High Court of Australia held that the total effective sentence imposed on the appellant did not infringe the first limb of the totality principle. The court found that the sentence was proportionate to the gravity of the offence and was in accordance with the principles of sentencing. The court also held that the sentence was just and appropriate in all the circumstances, taking into account the appellant's criminal history, the circumstances of the offence, and the need to deter and rehabilitate the appellant. The appeal was dismissed, and the sentence imposed on the appellant was upheld.

The High Court of Australia dismissed the appellant's appeal against sentence and affirmed the sentence imposed by the lower court. The court held that the total effective sentence imposed on the appellant was proportionate to the gravity of the offence and did not infringe the first limb of the totality principle. The sentence was found to be just and appropriate in all the circumstances, and the appeal was dismissed.

Orders