R v Benning - [2005] VSCA 240

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 186 of 2004

THE QUEEN
	v.
KEITH LESLIE BENNING

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2005
DATE OF JUDGMENT:	6 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 240

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Criminal law – Sentence – Theft – Non-parole period – No standard gap between head sentence and non-parole period – Bank manager stealing from employer and customers – Discount for disclosing offence – Head term of six years and a minimum term of four years manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.E. Dean, S.C. with Ms A.L. Harris	Septimus Jones and Lee

CALLAWAY, J.A.:

I invite Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.:

The applicant is 49 years of age. When he left school the applicant commenced employment with the National Australia Bank ("the Bank") and worked there for some 30 years. In 1991 the applicant was appointed as a business banking manager at the Kilmore branch of the Bank. As a business banking manager the applicant was required to manage the borrowing, depositing and investment of money by customers of the branch.

In 1998 the applicant commenced to exploit his position by manipulating the accounts of customers of the Bank for his own purposes. The applicant's usual practice was to transfer moneys from customers' accounts into accounts called Vulture Park Pty Ltd or ESJ Investments Pty Ltd and then withdraw money from the accounts for his own use. The applicant raised bank cheques and transferred funds from customers' accounts to restore the deficiencies he had created in other accounts. One series of transactions will serve as an example of the applicant's offending. The applicant transferred $23,000 from the account of Ban (Victoria) Pty Ltd to the account of Vulture Park Pty Ltd. Subsequently the applicant drew a bank cheque to replenish the account of Ban (Victoria) Pty Ltd. The offences spanned a period of about four years, and only came to an end when an internal bank audit disclosed the transactions.

The explanation given by the applicant to the police for his offending was that he had given advice to members of his family concerning the purchase of shares. His advice caused loss to his brother and father when the stock market collapsed in 1997. The applicant said he had borrowed money to reimburse his family. He found it difficult to service the debt and turned to the funds he was administering at the bank. The applicant also said that he applied funds he misappropriated to gambling, share trading and general living expenses.

The applicant was arraigned in the County Court and pleaded guilty to a presentment containing 20 counts of theft. After a plea the applicant was sentenced to terms of imprisonment ranging from 18 months to three years on each of the counts. A measure of cumulation produced a total effective…

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 Benning

Details

AGLC: R v Benning [2005] VSCA 240
Case: [2005] VSCA 240
Decision Date: 6 October 2005

CaseChat Overview and Summary

In the matter of the Queen versus Benning, the court considered the sentencing of the defendant, who had been convicted of theft from his employer and customers in his role as a bank manager. The case was heard in a higher court of Australia where the appeal against sentence was being determined. The central issue before the court was whether the sentence imposed by the lower court was manifestly excessive, given the head term of six years and a minimum term of four years set by the sentencing judge. The court was also tasked with considering whether the sentence reflected an appropriate standard gap between the head sentence and the non-parole period.

The court examined the principles of sentencing, particularly focusing on the necessity to ensure that sentences are not manifestly excessive and that they appropriately balance the principles of punishment, deterrence, and rehabilitation. It was noted that the discount given for the defendant's disclosure of the offence was a mitigating factor, but the court had to determine if this sufficiently justified the length of the sentence. The court held that the sentence imposed was indeed manifestly excessive, as it did not provide a standard gap between the head sentence and the non-parole period. The excessiveness was attributed to both the length of the head term and the minimum term, which did not align with the principles of sentencing in similar cases.

Consequently, the court quashed the sentence imposed by the lower court and remitted the matter back for re-sentencing. The court emphasised the importance of adhering to the principles of sentencing and ensuring that sentences are proportionate and justifiable. The court did not set a new sentence but left it to the lower court to impose an appropriate sentence that complied with the legal standards. The decision underscores the necessity for courts to carefully consider the factors involved in sentencing, particularly when determining the length of custodial sentences.

Orders