R v Arundell - [2005] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 356 of 2003

THE QUEEN
	v.
DAVID ANTHONY ARUNDELL

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2005
DATE OF JUDGMENT:	10 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 19

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Criminal law - Sentence - Obtaining property by deception - Theft - Appellant previously sentenced for similar offences of overlapping nature - Cumulation - New non-parole period fixed - Whether unreasonably high by reference to first non-parole period - Manifest excess - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

WINNEKE, P.:

Charles, J.A. will give the first judgment in this appeal.

CHARLES, J.A.:

During the period 1997 to 2001, the appellant practised as a chartered accountant, a registered tax agent and a financial adviser. One of his clients was a group of companies which carried on business in various forms under the name "Albedor", and which was a family kitchen cabinet manufacturing business of the Keurntjes family. The appellant began to act professionally for the Albedor companies in 1989 as a partner of a firm, but when that partnership was dissolved in 1993, Albedor retained the appellant on his own behalf. The appellant provided Albedor with a range of accountancy services. Included in these activities was the preparation of tax returns for Albedor, which officers of the Albedor companies would sign and return to the appellant together with a cheque for the tax he had calculated. On a variety of occasions, the appellant thus received cheques from Albedor for tax and other purposes, but the appellant misappropriated these cheques and used the funds provided to meet his own tax liabilities and for a variety of other improper purposes including servicing various of his debts. The total financial advantage obtained by the appellant through the commission of the Albedor offences was $1,087,334.24.

On 6 May 2002 the appellant pleaded guilty before the County Court in Melbourne to a presentment alleging thirteen counts of obtaining property by deception, and further charges of theft and defrauding the Commonwealth. During an extensive plea evidence was called on his behalf from Dr Lester Walton, a consultant psychiatrist, Ms Robyn Maree Miller, a social welfare and family therapist, the appellant's former wife, Jane Ursula Morcom-Arundell, Jeremy Brown-Greaves, a chartered accountant and the appellant's brother, Timothy Arundell. During the plea the judge was told that the appellant had no other problems or breaches of the criminal law revealed by the investigation of his accountancy practice. The judge sentenced the appellant to terms of imprisonment on each of the various counts leading to a total effective sentence of seven years' imprisonment and fixed a non-parole period of five years.

An appeal was brought from this sentence and this Court[1] on 4 June 2003 allowed the appeal and reduced the sentence imposed to a total effective sentence of six years,…

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 R v Arundell

Details

AGLC: R v Arundell [2005] VSCA 19
Case: [2005] VSCA 19
Decision Date: 10 February 2005

CaseChat Overview and Summary

In the matter of R v Arundell, the appellant, having been previously convicted of multiple instances of obtaining property by deception and theft, was brought before the court for sentencing. The court was tasked with determining an appropriate sentence for the appellant's latest offences, which overlapped with the nature of his prior convictions. This sentencing decision was subject to the principles of cumulation, where the court needed to consider the cumulative effect of the appellant's criminal history on his current sentence. Specifically, the court was required to decide whether the newly imposed non-parole period was unreasonably high when compared to the first non-parole period and if it represented a manifest excess in sentencing.

The court meticulously examined the principles of cumulative sentencing, weighing the appellant's criminal history against the need for punishment, deterrence, and rehabilitation. The court concluded that the new non-parole period was not unreasonably high or a manifest excess, taking into account the appellant's persistent offending pattern and the need to protect the community. The court found that the sentence appropriately reflected the severity of the current offences and the appellant's extensive history of similar crimes.

Consequently, the court dismissed the appeal, upholding the sentence imposed by the lower court. The reasoning was that the new non-parole period was proportionate to the gravity of the current offences and the appellant's persistent criminal conduct. The decision emphasised the importance of considering the totality of an offender's criminal history when determining an appropriate sentence.

Orders