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…
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- AGLC
- R v Fletcher [2002] VSCA 40
- Case
- [2002] VSCA 40
- Decision Date
CaseChat Overview and Summary
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.
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