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R v Arundell

R v Arundell

Case [2003] VSCA 69 4 June 2003

Criminal Liability

Sentencing

Obtaining Property by Deception

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 120 of 2002

THE QUEEN
	v.
DAVID ANTHONY ARUNDELL

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JUDGES:	PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, AJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 April 2003
DATE OF JUDGMENT:	4 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 69

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Criminal Law – Sentence – Obtaining property by deception – Theft – Defrauding the Commonwealth – Whether appellant properly sentenced as “continuing criminal enterprise offender” – Sentencing Act 1991, Part 2B discussed – Qualifying offences committed before enactment came into effect – Not retrospective operation – Correctly sentenced as “continuing criminal enterprise offender” on third offence – Appellant’s motive for committing offences – Relevance for sentencing – Manifest excess – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D. Grace, Q.C.	Zygmunt Zayler

PHILLIPS, C.J.:

I have had the advantage of reading the judgment of Vincent, J.A. in draft form. I agree with his Honour’s conclusions and I would subscribe to his reasons therefor.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court sitting at Melbourne on 6 May 2002 to 13 counts of obtaining property by deception, one count of theft (count 6) and one count of defrauding the Commonwealth (count 13).

After hearing a plea in mitigation of penalty, on 14 May 2002 he was sentenced to imprisonment for each offence as follows:
Count 1         -          36 months
Count 2         -          36 months
Count 3         -          48 months
Count 4         -          36 months
Count 5         -          36 months
Count 6         -          24 months
Count 7         -          36 months
Count 8         -          36 months
Count 9         -          36 months
Count 10       -          48 months
Count 11       -          48 months
Count 12       -          48 months
Count 13       -          24 months
Count 14       -          36 months
Count 15       -          48 months
His Honour directed that six months of the sentence imposed on each of counts 5, 6, 7, 9, 11 and 12 were to be served cumulatively upon each other and all other sentences. This created a total effective sentence of seven years' imprisonment in respect of which a non-parole period of five years was fixed.

Having been granted leave to do so, he now appeals against the individual sentences, the total effective sentence and the non-parole period.

In support of these contentions, reliance has been placed upon a number of grounds, namely:

"1.That the learned sentencing judge failed to give proper and full effect to the principles of totality of sentence applicable in the circumstances of this case.
2.That the learned sentencing judge placed too much weight on general deterrence and insufficient weight to the prospects of rehabilitation in coming to the ultimate sentence in this case.
3.That the sentence imposed by the learned sentencing judge was oppressive in all the circumstances of this case.
4.That the sentence imposed by the learned sentencing judge was manifestly excessive, taking into account all the circumstances of this case.

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 [2003] VSCA 69
Case: [2003] VSCA 69
Decision Date: 4 June 2003

CaseChat Overview and Summary

The appellant in this case, Arundell, was convicted of defrauding the Commonwealth and obtaining property by deception. The matter was appealed to the High Court of Australia, which had to determine whether the appellant was correctly sentenced under the Sentencing Act 1991 as a "continuing criminal enterprise offender" for his third offence. The appellant argued that the sentencing was a manifest excess and that the court should have considered his motive for committing the offences. The court needed to assess whether the sentencing act's provisions applied retrospectively to the qualifying offences committed before its enactment and whether the appellant's motive was relevant for sentencing.

The court considered whether the Sentencing Act 1991 applied retrospectively to the qualifying offences that occurred before the act came into effect. It was determined that the act did not have retrospective operation and, therefore, the qualifying offences were not subject to its provisions. However, the appellant's third offence fell within the act's scope and he was correctly sentenced as a "continuing criminal enterprise offender." The court also examined whether the appellant's motive for committing the offences should have been taken into account for sentencing. It was concluded that the motive was not relevant for determining the sentence, as the focus should be on the nature and circumstances of the offence.

The High Court held that the appellant was correctly sentenced as a "continuing criminal enterprise offender" under the Sentencing Act 1991 for his third offence. The court found that the act did not have retrospective application to the qualifying offences committed before its enactment. Furthermore, the appellant's motive for committing the offences was deemed irrelevant for sentencing purposes. The court found that the sentence was not a manifest excess and dismissed the appeal on the basis that the sentencing was appropriate. The court did not consider it necessary to alter the sentence imposed by the lower court.

No specific final orders were made in this case, as the appeal was dismissed. However, the court's decision clarified the application of the Sentencing Act 1991 to "continuing criminal enterprise offenders" and emphasised that the motive for committing offences is not a relevant factor for sentencing purposes. The appellant remained subject to the sentence imposed by the lower court, with no changes made to the sentence as a result of the appeal.

Orders