R v Drasko - [2006] VSCA 257

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 365 of 2005

THE QUEEN
	v.
MARIJONETA DRASKO

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JUDGES:	VINCENT, EAMES and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2006
DATE OF JUDGMENT:	1 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 257

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Criminal Law – Conviction – Attempting to obtain property by deception – Applicant embarked upon a scheme to defraud her insurance company – Whether applicant’s tape recorded interview should have been excluded as involuntarily obtained or excluded in the exercise of discretion – Whether the applicant was “a person in custody” within the meaning of s.464 of the Crimes Act 1958 – Whether no case to answer – Application dismissed.

Criminal law – Sentence – Manifest excess – Depression – No prior convictions – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr K.T. Armstrong	Victoria Legal Aid

VINCENT, J.A.:

The applicant was found guilty, on 15 November 2005, by the jury empanelled on her trial in the County Court at Melbourne on one count of attempting to obtain property by deception.

After hearing a plea in mitigation of penalty, the sentencing judge, on 12 December 2005, imposed a term of imprisonment of 15 months. His Honour further ordered that the service of 12 months of that sentence be suspended for a period of two years.

The Applications for Leave to Appeal

The applicant seeks leave to appeal against both conviction and the sentence imposed upon her upon the grounds that:

Conviction
1.        The learned trial judge erred in admitting into evidence the evidence of the witness Peter Hiscock as to tape recorded and            other conversations with the applicant, in that such evidence should have been excluded as involuntarily obtained or should           have been excluded in the exercise of discretion.
2.        That the learned trial judge erred in admitting into evidence the      evidence of the witness Eamon Leahy as to conversations with            the applicant and a typewritten statement obtained from the          applicant, such evidence being said to evidence a consciousness        of guilt, in that such evidence should have been excluded as            involuntarily obtained or should have been excluded in the          exercise of discretion.
3.        That the learned trial judge erred in ruling that there was a case      to answer at the conclusion of the prosecution case.
Sentence
1.        That the learned sentencing judge gave insufficient weight to the     evidence of the applicant suffering from and being treated for depression at the time of the offence, there being unchallenged         medical evidence that this affected the applicant’s judgment at    the time of the offence.
2.        That the learned sentencing judge gave too much weight to the       matter of general deterrence.
3.        That the learned sentencing judge erred in his consideration of        the applicant’s plea of not guilty and continuing failure to         acknowledge her guilt after her conviction, in that he gave       excessive weight to the absence or remorse.
4.        That the learned sentencing…

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 Drasko

Details

AGLC: R v Drasko [2006] VSCA 257
Case: [2006] VSCA 257
Decision Date: 1 December 2006

CaseChat Overview and Summary

In the case of R v Drasko, the applicant sought to challenge her conviction for attempting to obtain property by deception. The applicant had engaged in a scheme to defraud her insurance company by submitting fraudulent claims. The matter came before the court to address several issues related to the admissibility of evidence and the sufficiency of the case against the applicant. The court was required to determine whether the applicant’s tape-recorded interview, which was obtained without legal representation, should have been excluded from evidence as it was involuntarily obtained or as a matter of discretion. Another significant issue was whether the applicant was considered "a person in custody" within the meaning of section 464 of the Crimes Act 1958, which would have entitled her to legal representation during the interview. Furthermore, the applicant challenged the sufficiency of the prosecution’s case, arguing that there was no case to answer.

The court examined the circumstances surrounding the applicant's interview and concluded that it was not involuntary, as she had been informed of her right to silence and legal representation but chose not to exercise it. The court held that the applicant was not "a person in custody" for the purposes of section 464, as she had not been formally arrested or charged at the time of the interview. Consequently, the court found that the interview was properly conducted and admissible as evidence. The court also found that the prosecution had presented a sufficient case for the jury to determine the applicant's guilt, dismissing the no case to answer submission. Regarding the sentence, the court considered the applicant's mental health and lack of prior convictions but ultimately found that the sentence was not manifestly excessive.

The application was dismissed, and the conviction and sentence remained intact. The court found that the evidence against the applicant was properly obtained and that the prosecution had established a case for the jury. The court also determined that the sentence imposed was appropriate given the circumstances. The applicant’s challenges to the admissibility of evidence and the sufficiency of the case were unsuccessful, and no grounds for appeal were found.

Orders