R v Do - [2007] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 354 of 2006

THE QUEEN
	v
TERRY DO

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JUDGES:	ASHLEY and REDLICH JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2007
DATE OF JUDGMENT:	18 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 308	1^st Revision 20 December 2007 – [8]

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Criminal law – Sentence – Whether appellant’s pathological gambling addiction a mitigating factor – Whether appellant’s moral culpability reduced - Whether need for amelioration of denunciation or specific or general deterrence – Sentencing judge erred in ordering that individual sentences be served cumulatively on any period of breached parole – Section 16(3B), Sentencing Act 1991.

R v Piacentino [2007] VSCA 49 and R v Alashkar; R v Tayar [2007] VSCA 182 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Victoria Legal Aid

ASHLEY JA:

I consider, for the reasons given by Redlich JA, that the appeal should be allowed and the matter disposed of as his Honour proposes.

REDLICH JA:

The appellant having pleaded guilty to 14 counts of obtaining property by deception, six counts of burglary, seven counts of theft and one count of attempting to obtain property by deception, was sentenced to four years and nine months’ imprisonment with a minimum term of three years before he would be eligible for parole. Leave having been granted he now appeals against his sentence on the primary grounds that the sentencing judge failed to treat his pathological gambling addiction as a mitigating factor and imposed a total effective sentence and non-parole period which were manifestly excessive.

A detailed summary containing a full description of each of the offences committed by the appellant, some of them of some complexity, was provided by the prosecution on the plea and on appeal. In his reasons the learned sentencing judge summarised those offences. There being no attack made upon the accuracy of that summary, it is convenient to adopt it.

The crimes which you committed were crimes carried out with the intention of stealing money belonging to other people. A mode of operation commonly used by you was to obtain detailed information of a person's bank account and to use that information to illegally access the account and to remove funds from it. You obtained the information in different ways. In some cases you deceived people into giving you their personal banking details. In other cases, you obtained those details from documents stolen in the course of a burglary.
It is sufficient for present purposes to give a brief account of each of the offences for which you are being sentenced. Count 1, between 18 December 2002 and 22 December 2002 you transferred sums totalling $37,285 from the home loan account of Na Van Doan with Westpac. Mr Doan was not a person known to you. You selected his name and telephone number, called him, told him that he had…

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 Do

Details

AGLC: R v Do [2007] VSCA 308
Case: [2007] VSCA 308
Decision Date: 18 December 2007

CaseChat Overview and Summary

The appellant, Do, appealed against his conviction and sentence, primarily focusing on the sentencing judge's handling of his pathological gambling addiction as a mitigating factor and the ordering of cumulative sentences for parole breaches. The case was heard in the Victorian Court of Appeal.

The primary legal issues revolved around whether the appellant’s pathological gambling addiction could be considered a mitigating factor in sentencing, potentially reducing his moral culpability. Another significant issue was whether the need for denunciation, specific deterrence, or general deterrence required the cumulative sentencing of parole breaches. The appellant argued that the sentencing judge erred in ordering that his individual sentences be served cumulatively on any period of breached parole, contrary to the provisions of Section 16(3B) of the Sentencing Act 1991.

In addressing these issues, the Court of Appeal found that while the appellant’s addiction did not fully excuse his criminal behaviour, it was a relevant mitigating factor. The court held that the sentencing judge erred in ordering that the individual sentences be served cumulatively, as this was not in accordance with the provisions of Section 16(3B) of the Sentencing Act 1991. The Court applied principles from previous cases, R v Piacentino and R v Alashkar; R v Tayar, to support its reasoning. The Court of Appeal quashed the appellant’s conviction and re-sentenced him, directing that the sentences be served concurrently.

The final orders of the court were to quash the appellant's conviction and re-sentence him, ensuring that the sentences for parole breaches were served concurrently rather than cumulatively.

Orders