R v PACIFICO - [2009] SASC 379

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PACIFICO
[2009] SASC 379
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Bleby)
17 December 2009
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FORGERY AND UTTERING
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT
Application for permission to appeal against sentence following refusal of permission by single Judge – applicant pleaded guilty in District Court to 18 counts of obtaining property on forged instrument, one count of false pretences and one count of obtaining benefit by deception – loans totalling $25m obtained by use of forged documents – $8m remains outstanding – sentence of imprisonment for 12 years imposed for 18 counts of obtaining property on a forged instrument and one count of false pretences – sentence of imprisonment for four years imposed for one count of obtaining benefit by deception to be served cumulatively upon sentence of imprisonment for 12 years – whether sentence manifestly excessive – whether sentence imposed for offence of obtaining benefit by deception manifestly excessive in circumstances – whether Judge erred in application of principle of totality – whether Judge had adequate regard to time spent on home detention – whether Judge failed to have adequate regard to restitution on part of applicant.
Appeal dismissed – sentences appropriate given gravity of offences – Judge did not err in application of totality principle – no obligation on sentencing court to reduce sentence on account of time spent on home detention bail – Judge did not err in approach to restitution made by applicant.
Criminal Law Consolidation Act 1935 (SA) s 5AA, referred to.
R v Telford (2005) 242 LSJS 33; R v Carr (2008) 101 SASR 13; R v Malesevic (1999) 204 LSJS 32, considered.

R v PACIFICO
[2009] SASC 379
Court of Criminal Appeal: Duggan, Nyland and Bleby JJ

DUGGAN J: This is an application for permission to appeal against sentence following the refusal of permission by a single Judge.
The applicant pleaded guilty to 18 counts of obtaining property on a forged instrument and one count of false pretences. He also asked the Court to take into consideration when sentencing 17 further offences of obtaining property on a forged instrument.
The forgery offences, including those taken into consideration, were committed from 1999 to 2002. The documents were forged in order to obtain a series of loans from finance companies. The total amount obtained was over $25.5 million. More than $8 million remains outstanding.
In addition to these offences, the applicant pleaded guilty to obtaining a benefit by deception between 11 July 2007 and 15 August 2007. The benefit consisted of two mini loaders of the value of $71,300. This offence was committed while the applicant was on bail in relation to the previous offences. This resulted in the applicant being charged with breach of bail, an offence to which he also pleaded…

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 PACIFICO

Details

AGLC: R v PACIFICO [2009] SASC 379
Case: [2009] SASC 379
Decision Date: 17 December 2009

CaseChat Overview and Summary

The applicant, in this case, applied for permission to appeal against the sentence imposed by the District Court. The applicant pleaded guilty to 18 counts of obtaining property on a forged instrument, one count of false pretences, and one count of obtaining benefit by deception. The applicant had obtained loans totaling $25 million through forged documents, with $8 million still outstanding. The District Court sentenced the applicant to imprisonment for 12 years for the 18 counts of obtaining property on a forged instrument and one count of false pretences. Additionally, a sentence of imprisonment for four years was imposed for one count of obtaining benefit by deception, to be served cumulatively with the 12-year sentence. The applicant argued that the sentence was manifestly excessive, particularly the sentence for the obtaining benefit by deception offence. The applicant further argued that the sentencing judge had not adequately considered the principle of totality, the time spent on home detention bail, and the restitution made by the applicant.

The legal issues before the court were whether the sentences imposed were manifestly excessive, whether the sentencing judge had erred in applying the principle of totality, whether the judge had adequately considered the time spent on home detention bail, and whether the judge had failed to adequately consider the restitution made by the applicant. The court examined the gravity of the offences, the principle of totality, and the consideration of home detention bail and restitution in the sentencing process. The court held that the sentences were appropriate given the gravity of the offences and that the sentencing judge did not err in applying the principle of totality. The court also found that there was no obligation on the sentencing court to reduce the sentence on account of time spent on home detention bail. Finally, the court concluded that the sentencing judge had not erred in their approach to the restitution made by the applicant.

The court dismissed the appeal, finding that the sentences were appropriate given the gravity of the offences. The court held that the sentencing judge did not err in applying the principle of totality and that there was no obligation on the sentencing court to reduce the sentence on account of time spent on home detention bail. Furthermore, the court found that the sentencing judge had not erred in their approach to the restitution made by the applicant. The court's decision was that the sentences imposed were appropriate, and the applicant's appeal was dismissed.

Orders