R v Flavall - [2006] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 229 of 2005

THE QUEEN
	v.
GREGORY BRIAN FLAVALL

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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:	22 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 32

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Criminal Law – Sentence – Multiple counts of theft – Obtaining property by deception – Fraud by investment adviser – 1.3 million dollars misappropriated between 1988 and 1992 – Flight – Arrest in 2005 in transit through Australia – Ill health of spouse residing in USA – Cumulation – Whether order for cumulation arbitrary – Sentence of 4 ½ years’ imprisonment with a non parole period of 3 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Michael J. Gleeson and Associates

CHERNOV, J.A.:

The appellant, who is now aged 46 and had no prior convictions, was sentenced, on 4 August 2005, by a judge of the County Court to a total effective sentence of four years, six months' imprisonment, having pleaded guilty, on 29 April 2005, to 23 counts of theft and one count of obtaining property by deception between June 1988 and January 1992. Many of the counts were rolled up counts. The maximum custodial penalty for each of the offences of theft and obtaining financial advantage by deception is ten years. The individual sentences are set out in the Table that is annexed to these reasons. The learned sentencing judge imposed a minimum term of 3 years’ imprisonment before the appellant was eligible for release on parole. As to cumulation, his Honour considered that approximately one third of each sentence, other than that imposed on count 1, be cumulated on that count.[1] I note for completeness that, when it came to expressing orders for cumulation, his Honour cumulated the individual sentences in different terms, but that aspect of his Honour’s cumulation order has not been challenged. On 18 November 2005, this Court granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958. The sentence is challenged on a number of grounds to which I will refer later, but at the outset, it is necessary to set out briefly the essential circumstances of the offending, which are fully described in his Honour's sentencing remarks and the Crown's summary of evidence.
[1]Given that the sentence imposed on count 1 was six months’ imprisonment, such a cumulation order would be contrary to what was said in R. v. MDB [2003] VSCA 181 at [14] and R. v. JG [2005] VSCA 74 at [22].

In about 1985, the appellant established a business that was concerned mainly with the sale of insurance products. Over a period of about two years, the business expanded its services to include superannuation and other investment advice and products. The appellant later became an agent for Superline Australia Ltd, which enabled him…

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 Flavall

Details

AGLC: R v Flavall [2006] VSCA 32
Case: [2006] VSCA 32
Decision Date: 22 February 2006

CaseChat Overview and Summary

In the case of R v Flavall, the appellant faced charges related to his actions as an investment adviser who misappropriated approximately 1.3 million dollars through fraudulent means over a period from 1988 to 1992. Flavall fled the country prior to his arrest in 2005 when he was apprehended while in transit through Australia. The central issue before the court was whether the sentence imposed was manifestly excessive and whether the order for cumulation of sentences was arbitrary.

The legal issues revolved around the appropriate sentence for multiple counts of theft and obtaining property by deception, considering the significant amount misappropriated, the appellant's flight to avoid justice, and the length of time between the offences and his apprehension. The court had to consider the principles of sentencing, including deterrence, retribution, rehabilitation, and the circumstances of the offender. Additionally, the court examined whether the cumulative sentence of 4 ½ years, with a non-parole period of 3 years, was just and appropriate given the gravity of the offences and the appellant's flight from justice.

The court held that the sentence was not manifestly excessive, taking into account the appellant's significant flight from justice, the substantial amount misappropriated, and the time elapsed between the offences and his apprehension. The court also found that the order for cumulation was not arbitrary but rather a balanced approach considering the totality of the appellant's criminal conduct. The court emphasised that the sentence must reflect the seriousness of the crimes, the need for deterrence, and the circumstances of the offender, including his flight and the significant delay in apprehension. The court concluded that the sentence was appropriate and not manifestly excessive.

The final orders affirmed the sentence imposed on the appellant, which included a term of imprisonment of 4 ½ years with a non-parole period of 3 years. The court rejected the appeal against sentence, finding that the sentence was neither manifestly excessive nor arbitrary in its approach to cumulation.

Orders