R v Penny - [2012] VSC 25

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA

CRIMINAL DIVISION

No. 0004 of 2012

DIRECTOR OF PUBLIC PROSECUTIONS

BRUCE RICHARD PENNY

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JUDGE:	KING J
WHERE HELD:	Mildura
DATE OF HEARING:	6 February 2012
DATE OF SENTENCE:	7 February 2012
CASE MAY BE CITED AS:	R v Penny
MEDIUM NEUTRAL CITATION:	[2012] VSC 25

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Plea of guilty - Theft (8 Counts), False Accounting (2 Counts), Obtaining financial advantage by deception (9 Counts) - total 7 Million dollars plus – no financial gain by accused, continuing criminal enterprise, position of trust, early plea, previous pillar of community, no criminal history, exemplary character reflecting substantial history of community involvement.

Sentence: 6 Years imprisonment. Minimum of 4 Years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose S.C. Mr Y Hardjadibrata	Office of Public Prosecution
For the Accused	Mr B Walmesley S.C.	Martin, Irwin & Richards

HER HONOUR:

Bruce Richard Penny you have pleaded guilty to eight charges of theft being charges 1, 3, 4, 5, 6, 17, 18 and 19; two charges of false accounting, being charges 2 and 15; and nine counts of obtaining financial advantage by deceptions, being counts 7, 8, 9, 10, 11, 12, 13, 14 and 16. The maximum penalty for each of the offences to which you have pleaded guilty is 10 years. However, the majority of the charges relating to theft and those of obtaining financial advantage by deception, and more specifically, charges 3 to 6 inclusive, 7 to 14 and 17 to 19 inclusive all carry a maximum penalty, pursuant to s 6H of Part 2B of the Sentencing Act 1991 of 20 years imprisonment. Those offences to which I have just referred and to which you have pleaded guilty are all continuing criminal enterprise offences making you a continuing criminal enterprise offender for the purposes of sentencing for all bar four of the offences.

Your offending has taken place over a lengthy period of time with the first of the charges being November of 1997 and the last the 30^th January 2009. You are currently 62 years of age and have no prior convictions.

The circumstances relating to your offending are set out in detail in the prosecution opening for the plea hearing which is Exhibit 1. I do not intend to repeat the whole of that opening and will attempt to make my summation of your offending relatively short and intelligible to any member of the community who wishes to read what in fact has occurred. I have, however, looked closely at the materials contained including the extensive opening and the flow chart that has been provided by the Crown on the plea and have married together the documents to ensure I had a full comprehension of your criminality. The theft charges are relatively straightforward, whilst the false accounting and obtaining by deception a little more complicated.

The background to the actual offending requires me to go back some period of time. As a young man you…

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 Penny

Details

AGLC: R v Penny [2012] VSC 25
Case: [2012] VSC 25
Decision Date: 7 February 2012

CaseChat Overview and Summary

The case before the court was R v Penny, in which the defendant was charged with a multitude of offences including theft, false accounting, and obtaining financial advantage by deception, amassing a total loss of over seven million dollars. Penny, despite not personally gaining financially from these crimes, was found to have abused a position of trust and was involved in a continuing criminal enterprise. The defendant, previously a pillar of the community with a clean criminal record and a long history of community involvement, entered an early guilty plea which was recognised by the court.

The court was required to determine the appropriate sentence considering the significant financial loss, the nature and circumstances of the offences, Penny's position of trust, and the personal characteristics of the defendant. A critical issue was whether the substantial history of community involvement and the absence of personal financial gain should mitigate the severity of the sentence. Additionally, the court had to assess the impact of Penny's early guilty plea on the sentencing process.

In delivering the judgment, the court recognised the significant harm caused by Penny's actions, the breach of trust, and the scale of the offences. However, it also took into account the defendant's early guilty plea, lack of personal gain, and his previous exemplary character and community contributions. The court concluded that while the offences were serious and warranted a significant penalty, the circumstances warranted a sentence that also reflected the mitigating factors. Therefore, the court sentenced Penny to six years imprisonment, with a minimum of four years to be served before being eligible for parole, balancing the need for punishment with the personal circumstances of the defendant.

Orders