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R v Fernandez

R v Fernandez

Case [2006] VSCA 38 3 March 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 240 of 2005

THE QUEEN
	v.
KEITH JONATHAN FERNANDEZ

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JUDGES:	CHERNOV and EAMES, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 February 2006
DATE OF JUDGMENT:	3 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 38

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CRIMINAL LAW – Sentencing – 30 rolled-up counts of dishonestly obtaining a financial advantage by deception – Over $10 million in stamp duty payable to State Revenue Office taken over 2 years and 9 months – Total effective sentence ten years with 7 years non-parole period – Whether sentences manifestly excessive – Whether the sentencing Judge erred in treating the offender as in a position of trust – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.J. Croucher	Mr Maurice Gerkens
For the Respondent	Mr O.P. Holdensen, QC	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

CHERNOV, J.A.:

I agree, for the reasons given by Mandie, A.J.A., that the appeal against sentence should be dismissed.

EAMES, J.A.:

On any view, the total effective sentence and non-parole period fixed in this case were severe. That being so, one might have expected the learned sentencing judge to have said more in his sentencing remarks than he did. His Honour’s reasons (which were delivered two weeks after the completion of submissions) barely exceeded three pages of transcript. There was no discussion, at all, by his Honour as to why he imposed a sentence of six years’ imprisonment (out of what he was advised was the maximum of 10 years’ imprisonment) on count 29, which was the heaviest individual sentence of all. The paucity of reasons invited particular scrutiny of the complaint under ground one that the sentence imposed was manifestly excessive. However, despite my initial concern in that regard, I am persuaded that the ground has not been made out.

The question raised by ground one is whether the sentence imposed, as to the individual sentences, the total effective sentence or the non-parole period, was outside the appropriate range, and thereby manifestly excessive. For the reasons given by Mandie, A.J.A., and notwithstanding the paucity of the sentencing judge’s reasons, I am not persuaded that error has been shown. Brief as the judge’s reasons were, each of the considerations that were identified as particulars in the appeal ground were addressed by the judge, overall, and appropriately valued.

In concluding that the limited reasons do not betray sentencing error I bear in mind that no complaint is made in the grounds of appeal concerning the sufficiency of the reasons. That no doubt reflects the fact that the explanation for the sentence on count 29 must be the very fact, highlighted by Mandie, A.J.A., that it is a rolled up count, one that represents many hundreds of individual instances of dishonest

representations amounting, in all, to a total financial advantage of more than $2 million. Thus, count 29 represents a substantially greater degree of criminality than was represented by any of the other counts. To some…

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.

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Details

AGLC: R v Fernandez [2006] VSCA 38
Case: [2006] VSCA 38
Decision Date: 3 March 2006

CaseChat Overview and Summary

The defendant, Fernandez, appealed against his conviction and sentence, following his involvement in a scheme to defraud the State Revenue Office of over $10 million in stamp duty over a period of 2 years and 9 months. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed was manifestly excessive, taking into account the nature and circumstances of the offence. Additionally, the court had to determine if the sentencing judge erred in considering the defendant to be in a position of trust, which influenced the sentencing decision.

The court found that the sentence of ten years, with a non-parole period of seven years, was not manifestly excessive. The nature of the offence, the extent of the fraud, and the amount involved were considered significant factors in the sentencing decision. The court also found no error in the sentencing judge's consideration of the defendant's position of trust, as Fernandez held a position of responsibility within the company that facilitated the fraudulent activities. The court concluded that the sentence was appropriate and within the range of penalties that could be imposed for such serious and extensive criminal conduct.

The High Court dismissed the appeal, affirming the original sentence imposed by the sentencing judge. The court's decision was based on the severity and duration of the offending, as well as the defendant's role in perpetrating the fraud. The final orders of the court were to uphold the original sentence, with no changes or reductions made to the term or conditions of imprisonment.

Orders