SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 483 of 2006
and
No 793 of 2008
THE QUEEN
| v |
| 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…
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- AGLC
- R v Faneco [2009] VSCA 110
- Case
- [2009] VSCA 110
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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