R v Fletcher - [2002] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 423 of 2000

THE QUEEN
	v.
GAVIN MICHAEL FLETCHER

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2002
DATE OF JUDGMENT:	21 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 40

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Criminal law – Sentencing – Obtaining, and attempting to obtain, financial advantage by deception – Fifteen counts – Whether sentences on individual counts must reflect amounts involved – Offences motivated by threats to appellant and his family – Mistake by judge as to Crown’s position on sentence – Appellant re-sentenced to three years' imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Hale & Wakeling

CALLAWAY, J.A.:

The appellant, who is now aged 31, pleaded guilty in the County Court to eight counts of attempting to obtain a financial advantage by deception (counts 1, 3, 5, 6, 9, 10, 12 and 14) and seven counts of obtaining a financial advantage by deception (counts 2, 4, 7, 8, 11, 13 and 15). The maximum custodial penalties are 5 years' and 10 years' imprisonment respectively. He admitted five previous convictions for obtaining by false pretences, which related to drawing cheques without funds, and two previous convictions for theft from one court appearance in the Magistrates' Court at Maroochydore, Queensland in November 1992. On that occasion he was released on probation for two years. After hearing a plea for leniency on behalf of the appellant, the learned County Court judge sentenced him to 2 years' imprisonment on each of the counts of attempting to obtain a financial advantage by deception and 3 years' imprisonment on each of the counts of obtaining a financial advantage by deception. A direction for cumulation resulted in a total effective sentence of 4 years' imprisonment, of which his Honour directed that 27 months be served before the appellant becomes eligible for parole.

Leave to appeal was granted on 3rd August 2001. There are seven grounds of appeal. The first is that the learned sentencing judge erred in failing to give sufficient weight to matters of mitigation, including the appellant's personal circumstances, the impact of incarceration on his family, his prior criminal history, his background, his substantial degree of remorse and his plea of guilty. The second is that his Honour gave insufficient weight to the circumstances surrounding the appellant's offending, in particular the fact that the offences were committed in order to repay a gambling debt under threat of violence to both himself and his family. The third is that his Honour erred in giving undue weight to the principles of general and specific deterrence, the fourth that he erred in not giving due weight to the fact that all property was recovered, the fifth that both the head sentence and the term to be actually served are manifestly excessive and the sixth that in all the circumstances the sentence…

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 Fletcher

Details

AGLC: R v Fletcher [2002] VSCA 40
Case: [2002] VSCA 40
Decision Date: 21 March 2002

CaseChat Overview and Summary

In the case of R v Fletcher, the appellant was convicted of fifteen counts of obtaining, and attempting to obtain, financial advantage by deception. The matter was heard in the Supreme Court of Victoria. The primary dispute centred on the appropriate sentencing for the appellant’s convictions, particularly whether the sentences on individual counts should reflect the amounts involved and whether the offences were motivated by threats made against the appellant and his family. The appellant argued for a lesser sentence due to these mitigating factors, while the Crown sought a sentence that would adequately reflect the seriousness of the offences.

The court was required to determine the appropriate weight to give to the mitigating factors presented by the appellant, particularly the threats made against him and his family, and whether these warranted a departure from the usual sentencing principles. Additionally, the court had to consider whether the sentences on individual counts should vary based on the amounts involved, and how best to balance the need for deterrence with the appellant's personal circumstances. The court also had to address the issue of the judge’s earlier mistake regarding the Crown’s position on sentence, which led to the appellant initially being sentenced to a term that did not fully account for the Crown’s stance.

The court found that the appellant's personal circumstances and the threats made against him and his family were mitigating factors that warranted consideration. However, these factors did not entirely outweigh the need for a sentence that reflected the seriousness of the offences committed. The court determined that the sentences on individual counts should reflect the amounts involved, but also took into account the overall impact of the offences. After reassessing the appropriate sentence in light of the Crown's position, the court re-sentenced the appellant to three years’ imprisonment with a non-parole period of 18 months. This decision balanced the need for punishment and deterrence with the mitigating factors presented by the appellant.

Orders