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Prehn v R

Prehn v R

Case [2003] TASSC 55 2 July 2003

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[2003] TASSC 55

CITATION: Prehn v R [2003] TASSC 55

PARTIES:  PREHN, Joachim
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 70/2002
DELIVERED ON:  2 July 2003
DELIVERED AT:  Hobart
HEARING DATES:  13 March 2003
JUDGMENT OF:  Cox CJ, Crawford and Blow JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Other matters - Delay - Delay by prosecuting authority in settling indictment.

R v Schwabegger [1998] 4 VR 649; R v Todd [1982] 2 NSWLR 517; R v Law, ex parte Attorney-General [1996] 2 Qd R 63, applied.
Aust Dig Criminal Law [851]

REPRESENTATION:

Counsel:
             Appellant:  K L Baumeler
             Respondent:  I M Arendt
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2003] TASSC 55
Number of Paragraphs: 26

Serial No 55/2003
File No CCA 70/2002

JOACHIM PREHN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
CRAWFORD J
BLOW J

2 July 2003

Orders of the Court

Appeal allowed.

The recognizance release order made on 12 August 2002 is varied to provide that upon entering into a recognizance in the sum of $10,000 to be of good behaviour for a period of two years from the date of release, the appellant be released from prison after having served three years of the imprisonment.

Serial No 55/2003
File No CCA 70/2002

JOACHIM PREHN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
2 July 2003

I agree with the reasons for judgment prepared by Crawford J and with the orders which he proposes.
File No CCA 70/2002

JOACHIM PREHN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J

2 July 2003

The appellant pleaded guilty to 28 counts of being knowingly concerned in a company doing an act with the intention of defrauding another person, contrary to the Corporations Law, s592(6). The offences were committed over a period of about three years from June 1995 to June 1998. The learned sentencing judge observed that the maximum sentence prescribed for each count was 2 years' imprisonment and said that he was obliged to impose a penalty on each count, at the same time having regard to the totality of the criminal conduct over all counts. His Honour did not consider that he should draw a significant distinction between the counts, except perhaps that the later ones were more serious than the earlier ones because they indicated a persistence in wrongful conduct for a long time.

The sentences imposed were:

1A sentence of one year's imprisonment on each of counts 1 - 7, to be served concurrently with each other and to commence on 7 August 2002.
2A sentence of 18 months' imprisonment on each of counts 8 - 14, to be served concurrently with each other but to commence at the expiration of the sentences imposed on counts…

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 Prehn v R

Details

AGLC: Prehn v R [2003] TASSC 55
Case: [2003] TASSC 55
Decision Date: 2 July 2003

CaseChat Overview and Summary

Joachim Prehn, the appellant, appealed against the sentences he received after pleading guilty to 28 counts of being knowingly concerned in a company doing an act with the intention of defrauding another person, contrary to the Corporations Law, s592(6). The crimes were committed between June 1995 and June 1998. The Court of Criminal Appeal, consisting of Cox CJ, Crawford J, and Blow J, heard the appeal on 13 March 2003 and delivered their judgment on 2 July 2003. The court allowed the appeal to a limited extent, varying the recognizance release order to provide that the appellant be released from prison after serving three years of his six-year sentence.

The legal issues the court had to decide were whether the sentences imposed were manifestly excessive, and if so, whether the delay in settling the indictment by the prosecuting authorities was a mitigating factor. The appellant argued that the total sentences were manifestly excessive, considering factors such as his guilty pleas, efforts at rehabilitation, contrition, good character, unexplained delay by the prosecution in settling the indictment, and his co-operation with investigating authorities. The court had to assess these factors and determine if they warranted a reduction in the severity of the sentences imposed.

The court found that the total head sentence of six years' imprisonment was not manifestly excessive, although it was on the high side. They considered the criminality of the accused, the number of crimes, the period over which they extended, the large amount of money that was fraudulently misappropriated, and the circumstances of the victims, among other factors. The court also acknowledged that the delay in settling the indictment by the prosecution had some mitigatory effect, although not so significant as to warrant a quite undue degree of leniency. The court concluded that the length of the four-year pre-release period was manifestly excessive when viewed in the light of the circumstances, and varied the recognizance release order to provide for the appellant to be released after serving three years of his six-year sentence.

Orders