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R v Boyes

R v Boyes

Case [2004] VSCA 97 27 May 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 27 of 2003

THE QUEEN
	v.
DAVID ERIC MONTAGUE BOYES

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JUDGES:	CHERNOV, J.A., SMITH and COLDREY, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2004
DATE OF JUDGMENT:	28 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 97

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CRIMINAL LAW – Sentencing – Obtaining financial advantage by deception (36 counts) and obtaining property by deception (1 count) – Offender incomplete paraplegic – Hardship – Plea of guilty – Whether imprisonment more burdensome due to disability – Criteria for determination of such increase of hardship – Evidence of events subsequent to sentence – Whether admissible – Totality – Whether principle breached – Sentence of 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 9 months not manifestly excessive.

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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 G.M. Hughan	Victoria Legal Aid

CHERNOV, J.A.:

The appellant, David Eric Montague Boyes, who is now aged 50, appeals against the total effective sentence of 5 years and 3 months’ imprisonment (with a non-parole period of 3 years and 9 months) imposed on him on 5 February 2003 by a judge of the County Court sitting in Melbourne in respect of the following offences to which he pleaded guilty: 36 counts of obtaining a financial advantage by deception contrary to s.82 of the Crimes Act 1958 and one count (count 20) of obtaining property by deception contrary to s.81 of the Crimes Act. These offences were committed between May 1997 and June 1998. The maximum penalty for each offence is 10 years’ imprisonment. The appellant admitted having been convicted in the District Court at Hamilton in New Zealand on 17 November 1993 of 18 counts of false pretences, one count of theft by failing to account and a further count of obtaining credit by fraud, in respect of which he was sentenced to 3½ years’ imprisonment. In October 2001 he pleaded guilty in the District Court in New South Wales to being in possession of stolen goods – a truck and two trailers – and was sentenced for that offence to imprisonment for a period of 28 months, with a minimum term of 10 months.

On 24 October 2003 a judge of this Court granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act. The notice of application for leave to appeal against sentence, dated 19 February 2003, contains only one ground, namely, that the sentence imposed is manifestly excessive. Two more grounds were added by leave of the Registrar on 6 November 2003 and further grounds were sought to be included during the hearing of the appeal. I will deal later with the grounds of appeal that were argued for the appellant. First, I will summarise the relevant background events and the circumstances of the offending.

Background circumstances

The appellant was born in New Zealand, into a farming…

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.

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Details

AGLC: R v Boyes [2004] VSCA 97
Case: [2004] VSCA 97
Decision Date: 27 May 2004

CaseChat Overview and Summary

The appellant was convicted on 37 counts of obtaining financial advantage by deception and sentenced to imprisonment, with a non-parole period. The appellant argued the sentence was manifestly excessive due to the increased hardship caused by his disability and the principle of totality. The court considered whether the sentence was appropriate given the appellant's incomplete paraplegia and the evidence presented.

The court was required to determine whether the sentence imposed was manifestly excessive, taking into account the appellant's incomplete paraplegia and the increased hardship it caused. The court also had to assess whether the principle of totality had been breached by considering events that occurred after the sentence was handed down. Furthermore, the court needed to decide whether the evidence of subsequent events was admissible in the context of the appeal.

The court found that the sentence was not manifestly excessive. It considered the appellant's incomplete paraplegia and the increased hardship it caused but held that the sentence was appropriate given the gravity of the offences. The court also found that the principle of totality had not been breached as the sentence reflected the totality of the appellant's offending. The court rejected the appellant's argument that evidence of events subsequent to the sentence was admissible, holding that such evidence was not relevant to the appeal. The appeal against sentence was dismissed.

The court dismissed the appeal and affirmed the sentence of 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 9 months.

Orders