R v Rodgers - [2008] VSCA 52

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 420 of 2006

THE QUEEN
	v
BRENAN RODGERS

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JUDGES:	VINCENT, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2008
DATE OF JUDGMENT:	2 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 52

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Criminal Law – Sentence – Obtaining financial advantage by deception – Using a copy of a false document to the possible prejudice of another – Making a false document – Theft – Obtaining property by deception – Appellant with numerous and relevant prior convictions – Aggregate sentence imposed in respect of 21 counts – Whether sentencing judge erred in imposing an aggregate sentence in the circumstances – DPP v Felton [2007] VSCA 65 applied – Sentencing Act 1991, s 9(3) – Appeal allowed – Appellant re-sentenced – Same total effective sentence imposed but lesser non-parole period fixed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Rob Stary & Associates

VINCENT JA:

The appellant pleaded guilty in the County Court sitting at Bairnsdale, on 21 November 2006, to one count of obtaining financial advantage by deception (count 1), four counts of using a copy of a false document to the possible prejudice of another (counts 2, 3, 4 and 8), two counts of making a false document (counts 5 and 7), two counts of theft (counts 9 and 23), and 12 counts of obtaining property by deception (counts 10-18 and 20-22).

He admitted a large number of prior convictions and court appearances commencing in 1995 in Victoria, New South Wales and Queensland. They related to various drug and motor vehicle offences, the possession of tainted goods, receiving stolen goods, impersonating police officers and fraud offences. Notable, for present purposes, are four convictions for obtaining financial advantage by deception and 15 for obtaining property by deception, the last of which was entered against him in the Melbourne Magistrates’ Court on 25 February 2005; that is, approximately one month only prior to the commission of the first of the offences with which we are here concerned.

After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed, in respect of all counts, an aggregate sentence of five years’ imprisonment. He then fixed a minimum term of three years and six months’ imprisonment before the appellant would be eligible for parole.

The appeal is based upon the grounds that:

1.The learned sentencing judge erred by including in an aggregate sentence the “rolled up counts” numbered 3 and 4 … .
2.The learned sentencing judge erred by failing to identify the components of the aggregate sentence. …
3.The total effective sentence of 5 years imprisonment and the minimum term of 3 years and 6 months imprisonment are each manifestly excessive.

I now turn to the circumstances relating to the commission of the appellant’s offending about which I understand there is no dispute.

The background

Prior to…

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 Rodgers

Details

AGLC: R v Rodgers [2008] VSCA 52
Case: [2008] VSCA 52
Decision Date: 2 April 2008

CaseChat Overview and Summary

The appellant, Rodgers, appealed against the sentence imposed by the County Court for offences involving deception and the creation of false documents. The County Court found Rodgers guilty on 21 counts, including obtaining financial advantage by deception, using a copy of a false document, making a false document, and theft by deception. The appellant argued that the sentencing judge erred in imposing an aggregate sentence, which he claimed was excessive given the nature of the offences and his personal circumstances. The appeal was heard by the Court of Appeal, which was tasked with determining whether the sentence was appropriate and whether the sentencing judge had correctly applied the principles set out in the Sentencing Act 1991.

The legal issues before the Court of Appeal included whether the sentencing judge had correctly applied the principles of sentencing, particularly in relation to the imposition of an aggregate sentence, and whether the sentence was manifestly excessive. The appellant argued that the judge had failed to adequately consider the principles of proportionality and individualisation. The Court of Appeal needed to examine the sentencing principles and the case law, particularly the decision in DPP v Felton, to determine if the sentence was justified. The Court also needed to assess whether the sentence was disproportionate to the crimes committed and the appellant's personal history.

The Court of Appeal found that the sentencing judge had indeed erred in imposing an aggregate sentence without adequately considering the individual circumstances of each offence and the overall impact on the appellant. The Court held that the sentence was manifestly excessive and did not adequately reflect the principles of proportionality and individualisation. By applying the principles from the Sentencing Act and the decision in DPP v Felton, the Court concluded that the appellant should be re-sentenced. The Court allowed the appeal, re-sentenced the appellant, and while maintaining the same total effective sentence, reduced the non-parole period.

The Court of Appeal imposed a new sentence with the same total effective period but with a lesser non-parole period. This decision ensured that the sentence was proportionate and aligned with the legal principles of sentencing. The Court of Appeal's decision provided clarity on the application of aggregate sentencing and the need for individual consideration of each offence in complex cases involving multiple counts of deception and document fraud.

Orders