R v Breen, Hall & Sanderson - [2008] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 63 of 2007
v
BRENDAN ST JOHN BREEN
and
THE QUEEN	No 43 of 2007
v
BRIAN HALL
and
THE QUEEN	No 64 of 2007
v
BRENDAN MAURICE SANDERSON

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JUDGES:	BUCHANAN and VINCENT JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 May 2008
DATE OF JUDGMENT:	15 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 178

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Criminal law – Sentence – Offences of dishonesty – Offences committed while on parole – Cancellation of parole – Sentences failed to differentiate between completed crimes and attempted crimes.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant Breen	Mr J P Wheelahan	Matthew White and Assocs
For the Applicant Hall	Mr C B Boyce	Victoria Legal Aid
For the Applicant Sanderson	Mr C G Mandy	Andrew George

BUCHANAN JA:

I agree with Osborn AJA.

VINCENT JA:

I agree in the disposition of these matters proposed by Osborn AJA and I do so for the reasons advanced by him in his judgment.

OSBORN AJA:

Introduction

The applicants were each sentenced in the County Court on 2 March 2007 to imprisonment in respect of a series of offences of dishonesty.

In and after June 2005 the applicant Breen entered into an arrangement with one Brecko to create and market fraudulent identification papers in a series of false names.

Brecko then sold packages of fraudulent identity documents to Breen, Hall and Sanderson, who each used them to commit frauds upon various banks and credit institutions.

It is this conduct which constituted the core offences the subject of sentence.

Breen and Hall are older than Sanderson. At the date of sentence Breen was aged 50, Hall aged 53 and Sanderson aged 31.

All three had extensive prior convictions for dishonesty. Breen had 15 prior convictions from five court appearances, Hall 70 prior convictions from seven court appearances and Sanderson 225 prior convictions from 17 court appearances. Both Breen and Hall did not commence offending until a relatively mature age. In Breen’s case at the age of 40 and in Hall’s case at the age of 44.

Each of the applicants was on parole at the time of the offences in issue. The differing consequences of this circumstance in respect of each applicant and the totality of the penalty imposed, is a matter which each contends was not properly

addressed by the sentencing judge. The sentencing judge observed with respect to the accused jointly:
Gentleman in reaching the appropriate relevant sentences, I have, inter alia, borne in mind the principles of proportionality and totality, and of course your pleas of guilty.

But he did not in terms address the application of the totality principle to the case of each accused on an individual basis.

In each case his Honour imposed sentences cumulatively upon any period of imprisonment currently being served and which the applicants were or might be required to serve on…

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 Breen, Hall & Sanderson

Details

AGLC: R v Breen, Hall and Sanderson [2008] VSCA 178
Case: [2008] VSCA 178
Decision Date: 15 September 2008

CaseChat Overview and Summary

In the case of R v Breen, Hall & Sanderson, the defendants were convicted of multiple offences of dishonesty, including the theft of a motor vehicle. The dispute in this matter centred around the sentencing of the defendants, particularly as the offences were committed while the defendants were on parole for previous convictions. The matter was heard in the Court of Appeal of a relevant Australian state. The defendants argued that the trial judge had failed to properly differentiate between their completed crimes and attempted crimes, leading to an improper sentencing outcome.

The primary legal issue before the court was whether the trial judge had correctly differentiated between the various offences committed by the defendants, particularly in light of the fact that some of these offences were committed while the defendants were on parole. The defendants contended that the trial judge had not adequately distinguished between the different crimes and that this failure had resulted in sentences that were harsher than they should have been. The court was required to determine whether the trial judge's failure to differentiate between the completed crimes and attempted crimes constituted a material error in the sentencing process.

The court found that the trial judge had indeed failed to differentiate between the various offences committed by the defendants, which resulted in sentences that did not properly reflect the nature of the crimes committed. The court held that the sentences imposed were not appropriate given the distinctions between the completed and attempted crimes. The court of appeal concluded that the sentences failed to adequately differentiate between the different types of offences, which was a material error in the sentencing process. Consequently, the court allowed the appeal and ordered a re-sentencing of the defendants, directing that the trial judge consider the distinctions between the completed and attempted crimes when determining the appropriate sentences.

Orders