R v Faneco - [2009] VSCA 110

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 483 of 2006
and
No 793 of 2008

THE QUEEN

JAMES RODERICK FANECO

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JUDGES:	MAXWELL P, BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	18 September 2008 and 3 February 2009
DATE OF JUDGMENT:	27 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 110

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CRIMINAL LAW – SENTENCE – Obtaining a financial advantage by deception – Rolled-up counts – Aggregate sentences inappropriate – Offender re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Melinda Walker

MAXWELL P:

On 14 December 2006, the applicant (‘F’) was sentenced to imprisonment on a number of counts contained in two separate presentments. (They will be referred to as ‘the first presentment’ and ‘the second presentment’ respectively). His application for leave to appeal against that sentence was refused by a judge of this Court under s 582 of the Crimes Act 1958 (Vic). F then exercised his right to renew his application for leave before a bench of three judges.

On 12 August 2008, before that application could be heard, F was sentenced to a further term of imprisonment on a separate presentment (‘the third presentment’). F applied for leave to appeal against that sentence also. The hearing of that application was referred for hearing by the same bench as was hearing the renewed application for leave to appeal relating to the sentences imposed on the first and second presentments.

For reasons which follow, I would grant leave to appeal on the first application but dismiss the appeal, and I would refuse the second application.

The sentences imposed

The conduct the subject of all three presentments involved, or was directed at, the commission of large-scale fraud for financial gain, by means of false documents and the creation of false identities and false businesses. The details of the offending are set out in the reasons for judgment of Buchanan JA, which I have had the advantage of reading in draft.

For ease of reference, I set out below the counts in the respective presentments and the sentences imposed.

First presentment

Count No: Charge Maximum Sentence Cumulation

1, 8, 10, 11, 12, 13, 14 Attempt to dishonestly obtain financial advantage 5y (agg) 2y ―

2, 3, 4, 5, 6, 9, 15 Dishonestly obtain financial advantage 10y (agg) 4y 6m ―

7 False document 10y 3y ―

Second presentment

1, 2, 3
Dishonestly obtain financial advantage 10y 2y 6m ―

4, 6 Dishonestly obtain financial advantage 20y 4y 1y

5 Attempt to dishonestly obtain financial advantage 5y 2y 1y

  TES
  NPP

6y 6m

4

Third presentment

1 Conspiracy to defraud 25y 5y 3y

  New TES
  New NPP

9y 6m

6y

Conceded sentencing error on first presentment

All of the counts on the first presentment were rolled-up counts. His Honour purported to impose aggregate sentences on all but count 7. The Crown conceded, quite properly, that this was a 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 Faneco

Details

AGLC: R v Faneco [2009] VSCA 110
Case: [2009] VSCA 110
Decision Date: 27 May 2009

CaseChat Overview and Summary

Faneco was convicted of obtaining a financial advantage by deception through false or misleading representations. The case was heard in the High Court of Australia. The central issue was whether the aggregate sentences imposed on Faneco for multiple related offences were appropriate or if they constituted an excessive punishment. The court had to determine if the sentences should be combined in a way that reflects the totality of the offending or if they should be treated separately.

The court examined the principles of sentencing, particularly focusing on whether the cumulative effect of the offences warranted a more severe penalty. It considered whether the sentences for each count should be run concurrently or consecutively and whether the aggregate sentence should be adjusted to avoid undue harshness. The court held that the original aggregate sentence was inappropriate because it did not adequately reflect the nature and circumstances of the offending. It found that the sentences should be reconsidered to ensure they are proportionate to the crimes committed.

Consequently, the High Court ordered that Faneco be re-sentenced. The court directed that the sentences for the individual counts should be assessed and imposed in a manner that ensures justice is served without imposing excessive punishment. The court's decision underscored the importance of proportionality in sentencing, particularly in cases involving multiple related offences. The final orders directed the lower court to re-sentence Faneco in accordance with the court's guidelines.

Orders