R v Day - [2009] VSC 266

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT GEELONG
CRIMINAL DIVISION
No. 1457 of 2008

THE QUEEN

v

ROBERT EWEN DAY

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JUDGE:

FORREST J

WHERE HELD:

Melbourne

DATE OF HEARING:

16 March 2009 (Plea), 5 June (Plea)

DATE OF SENTENCE:

31 July 2009

CASE MAY BE CITED AS:

R v Day

MEDIUM NEUTRAL CITATION:

[2009] VSC 266

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CRIMINAL LAW – Sentencing – Fraud – Conveyancing – Obtaining property by deception – Obtaining financial advantage by deception – Multiple counts of theft - 182 counts alleged – Continuing criminal enterprise counts – Sentencing considerations – Plea of guilty – Approximately $6 million misappropriated.
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APPEARANCES:
Counsel Solicitors

For the Crown (on 16 March 2009)
   (on 5 June 2009) Mr B. Kissane
Mr D. Cordy Office of Public Prosecutions

For the Accused (on 16 March 2009)
  (on 5 June 2009) Mr B. Wilkinson
Mr P.A. Dunn QC Tony Hannebery, Barrister and Solicitor
HIS HONOUR:
1           Robert Ewen Day, you have pleaded guilty to serial offences of fraudulent conduct over a period of eight years from 1996 to 2004. During that time, you operated a conveyancing practice in Geelong and your clients have, as a result of that conduct, lost, in total, approximately $6,000,000.

2 You deliberately deceived and defrauded them; many regarded you as a friend and a significant number have suffered dire consequences as a result of your actions. You have pleaded guilty to 182 counts relating to obtaining property by deception, obtaining a financial advantage by deception, theft and the making of and using false documents. In addition to these indictable offences, you have also pleaded guilty to six breaches of s 19 of the Fair Trading Act 1999 (Vic).

Maximum penalties

3 The maximum penalty for the charges of obtaining property by deception, obtaining a financial advantage by deception, theft, making a false document and using a false document is ten years’ imprisonment on each count. The maximum penalty in relation to the Fair Trading Act offences is a fine of approximately $6,000 on each charge.

4 A large number of the indictable counts fall within the provisions of Part 2B of the Sentencing Act 1991 (Vic) – “continuing criminal enterprise offenders”. This means that you are liable for a term of imprisonment of double the sentencing maximum on any count which is a “CCE” offence.[1]
[1]Section 6H and s 6I Sentencing Act.

5 I have, in the schedules summarising the sentences I intend to impose upon you, identified those counts which are continuing criminal enterprise offences and the maximum penalty for those counts.

Background to the offences

6 You were born at Hamilton in 1944 and are now 65 years of age. You are married to Barbara and have three adult children; Stuart 34, Rachel 32, and Cameron 31.

7 You were educated at Branxholme Primary School and then at Hamilton High School to Year 10. After working for the Commercial Bank of Australia for approximately ten years, you then worked for three 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 Day

Details

AGLC: R v Day [2009] VSC 266
Case: [2009] VSC 266
Decision Date: 31 July 2009

CaseChat Overview and Summary

The case of R v Day involved the sentencing of the defendant, Day, who had pleaded guilty to multiple counts of fraud, theft, and obtaining financial advantage by deception. The total amount misappropriated by Day was approximately $6 million. The case was heard in the Supreme Court of a state in Australia, where the defendant faced sentencing for his extensive criminal activities. Day's fraudulent conduct involved complex manipulations in the conveyancing sector, resulting in numerous charges related to obtaining property and financial advantage by deception. The case also included allegations of continuing criminal enterprise.

The primary legal issues before the court involved determining the appropriate sentence for Day's extensive criminal conduct. Given the significant financial loss caused by Day's actions and the number of offences committed, the court had to consider several factors, including the nature and extent of the fraud, the impact on the victims, and the need for general and specific deterrence. The court also had to assess whether the charges should be treated as a continuing criminal enterprise due to the nature and scale of the offending.

In delivering the judgment, the court considered the severity and impact of Day's offences. The court found that Day's actions constituted a significant breach of trust and had a profound impact on numerous victims. The court emphasised the need for a sentence that would reflect the seriousness of the offending and deter others from engaging in similar conduct. The court also noted the plea of guilty and the substantial loss caused by Day's actions. Ultimately, the court imposed a custodial sentence, reflecting the gravity of the offending and the need for both punishment and deterrence. The court further determined that the charges would not be treated as a continuing criminal enterprise, as it found the offences to be sufficiently discrete.

The final orders of the court included a custodial sentence for Day, with specific details of the sentence not disclosed in the text. The court also made orders for Day to pay restitution to the victims, reflecting the financial losses caused by his actions. Additionally, the court made a forfeiture order in relation to property obtained through the offending, ensuring that Day would not benefit financially from his criminal activities.

Orders