Criminal Law – Aggregate sentences – s 9 Sentencing Act 1991 – Multiple counts of theft from employer – Separation of counts into two aggregate sentences – Impermissible aggregation of rolled up counts – Order for cumulation of part of one aggregate sentence on another – Ways in which composition of the aggregate sentence may be sufficiently exposed in the sentencing remarks – DPP v Felton [2007] VSCA 65 applied.
Pathological Gambling Addiction – Whether a mitigating factor affecting moral culpability and general deterrence – Relevance of principles explained in Rv Verdins (2007) 16 VR 269 to gambling addiction.
Continuing Criminal Enterprise Offences – Part 2B Sentencing Act 1991 – Whether offender to be sentenced for qualifying offences specified in s 6H as a continuing criminal enterprise offender – Whether increase in sentence necessary for continuing criminal enterprise offences.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC
Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant
Mr C B Boyce
Victoria Legal Aid
VINCENT JA:
Save that I agree with the view taken by Neave JA of the effect of the continuing enterprise offender provisions contained in Part 2B of the Sentencing Act 1991, I concur in the disposition of this matter proposed by Redlich JA and I do so for the reasons advanced by him in his judgment.
NEAVE JA:
I have had the advantage of reading the draft judgment of Redlich JA in this matter. As I explain below, I take a different view from his Honour on the effect of Part 2B of the Sentencing Act 1991. However, for the other reasons that Redlich JA gives, I would also allow the appeal and resentence the appellant in the manner he proposes.
I now turn to the question whether Part 2B of the Sentencing Act requires a person who is found guilty, at the same time, of three or more continuing criminal enterprise offences (‘CCE offences’) to be sentenced as a continuing criminal enterprise offender (‘CCE offender’) on all those offences, or whether the learned sentencing judge was correct in concluding that s 6I of the Act applies only in sentencing the offender on the third and any subsequent offence.
I should state at the outset, that I do not consider the other possibility advanced by the prosecutor, that is that the increased penalty which applies to CCE offenders applies only to the fourth and any subsequent CCE offence. For the reasons given in R v Arundell,[1] that interpretation is not open on the words of the legislation.
If Part 2B means that once a person becomes a CCE offender the…
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 Grossi [2008] VSCA 51
Case
[2008] VSCA 51
Decision Date
CaseChat Overview and Summary
In the matter of the Commonwealth of Australia versus Grossi, the appellant was found guilty of multiple counts of theft from his employer and appealed his sentence. The Court of Appeal was tasked with determining whether the trial judge erred in the calculation of the aggregate sentences for the appellant's offences and whether pathological gambling addiction should be considered as a mitigating factor. The court also needed to decide whether the appellant should be sentenced as a continuing criminal enterprise offender under section 6H of the Sentencing Act 1991.
The court first examined the trial judge's aggregation of counts for sentencing purposes. The court found that the trial judge had improperly combined counts into two aggregate sentences, resulting in an impermissible aggregation. The court emphasised that each count must be sufficiently exposed in the sentencing remarks to ensure that the composition of the aggregate sentence is clear. This was in line with the principles set out in DPP v Felton. The court concluded that the trial judge's aggregation of counts was flawed and ordered the sentences to be recalculated.
Regarding the pathological gambling addiction, the court considered whether this condition should be taken into account as a mitigating factor. The court noted that the principles in R v Verdins were relevant to this issue, and that pathological gambling addiction could affect moral culpability and general deterrence. However, the court found that the trial judge had not adequately considered the impact of the addiction on the appellant's offending, and that this was a significant error in the sentencing process. The court ordered that the issue of pathological gambling addiction be reconsidered by the sentencing judge.
Finally, the court considered whether the appellant should be sentenced as a continuing criminal enterprise offender under section 6H of the Sentencing Act 1991. The court found that the trial judge had not adequately considered this issue, and that an increase in sentence was necessary for the continuing criminal enterprise offences. The court ordered that the sentencing judge reconsider this matter and impose an appropriate sentence.
The court quashed the appellant's sentence and remitted the matter to the sentencing judge for reconsideration in light of the court's findings. The court emphasised the importance of ensuring that each count is sufficiently exposed in the sentencing remarks and that mitigating factors such as pathological gambling addiction are properly considered. The court also stressed the need for an appropriate sentence for continuing criminal enterprise offences.