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R v Kinnear

R v Kinnear

Case [2009] VSCA 104 18 May 2009

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 693 of 2007

THE QUEEN
	v
JEFFREY KINNEAR aka GEOFFREY PAUL THOMAS

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JUDGES:	REDLICH & DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2009
DATE OF JUDGMENT	18 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 104	1^st Revision 19 May 2009 – [1]

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CRIMINAL LAW – Sentence – Multiple counts of obtaining property or financial advantage by deception – $1.2 million obtained by financial advantage and $1 million in property – Appellant suffering from cyclothymic disorder involving major depressive illness – Appeal allowed – Sentence of eight years with non-parole period of four years and nine months.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Appellant

Ms G Cannon

Mr T Kassimatis

Mr C Hyland, Solicitor for OPP

Galbally Rolfe

REDLICH JA:

The appellant was presented on 21 counts involving offences of financial deception and theft spanning a 7 year period. The appellant in the course of working as a financial broker and consultant by various deceptions obtained financial advantages in the amount of $1,216,817.10 and property to the value of $1,000,165 and attempted to obtain a financial advantage to the value of $285,000. Following a plea of guilty to all counts he was sentenced to a total effective sentence of 11 years and 4 months imprisonment. A non-parole period of 8 years and 6 months was fixed and a compensation order requiring the payment of $961,289 was made.

To establish error, the appellant relied upon two grounds which complained that the sentencing judge had, on a number of counts, sentenced the appellant on the basis of a misunderstanding as to the maximum penalty referable to the offences comprising those counts.

By ground one it was submitted that the appellant was wrongly sentenced on the basis that counts 16-20 inclusive were capable of qualifying as continuing criminal enterprise (CCE) offences under the Sentencing Act 1991 (‘the Act’). The sentencing judge considered ss 6H and 6(I) of the Act to operate so as to subject those counts to a ‘maximum term of imprisonment twice the length of the maximum term prescribed’ by Parliament.

Similarly, ground 2 alleged that on counts 4 and 16 (attempting obtain a financial advantage by deception), the sentencing judge also sentenced by reference to the incorrect maximum, that being a period of 10 years imprisonment instead of the 5 years imprisonment prescribed by the Crimes Act.[1]
[1]ss 82(1) and 321(1)(a).

Sentencing on the basis of an incorrect maximum is a significant error and in the present case it cannot be said that it could not have materially effected the sentencing discretion.[2] The consequence of the error was that the sentencing judge was liable to consider the appropriate sentence, by measure of an inaccurate yardstick. It was conceded by the Crown that the learned sentencing judge had been led into error as he was incorrectly informed by the prosecutor that these were CCE offences. The respondent accepted that these errors required the re-opening…

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 Kinnear

Details

AGLC: R v Kinnear [2009] VSCA 104
Case: [2009] VSCA 104
Decision Date: 18 May 2009

CaseChat Overview and Summary

The appeal in R v Kinnear involved the appellant who had been found guilty of multiple counts of obtaining property or financial advantage by deception. The appellant had obtained a total of $1.2 million in financial advantage and $1 million in property. The matter came before the court on appeal against the sentence imposed, which was eight years imprisonment with a non-parole period of four years and nine months. The appellant contended that the sentence was excessive given his mental health conditions, including cyclothymic disorder involving major depressive illness.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the primary judge had failed to give appropriate weight to the appellant’s mental health conditions. The appellant argued that the sentence should be reduced, or alternatively, the appeal should be allowed and the matter remitted for resentencing. The prosecution contended that the sentence was appropriate and that the primary judge had adequately considered the appellant’s mental health in the sentencing process.

The court found that while the appellant’s mental health was a significant mitigating factor, it was not sufficient to warrant a reduction in sentence. The court held that the appellant’s actions were serious and involved a significant degree of premeditation and planning. However, the court also found that the sentence imposed was manifestly excessive. The court noted that the appellant’s mental health conditions were a significant mitigating factor, and that the primary judge had not given adequate weight to the appellant’s mental health in the sentencing process. The court allowed the appeal, set aside the sentence, and remitted the matter to the original sentencing court for resentencing.

The court emphasised the importance of taking into account the impact of mental health conditions on an offender’s culpability and the need for appropriate treatment and rehabilitation. The court also noted that the appellant’s mental health conditions did not excuse his criminal conduct, but they were a significant mitigating factor that should be taken into account in the sentencing process. The court did not specify what the appropriate sentence should be, leaving that matter to the original sentencing court on remittal.

Orders