CRIMINAL LAW - Sentencing - Obtaining property by deception and obtaining financial advantage by deception - Numerous counts - Whether judge erred in relying on offences committed prior to commencement of continuing criminal enterprise - Whether manifestly excessive and in breach of totality - Whether judge gave sufficient regard to plea of guilty and prospects of rehabilitation - Sentenced to a term of 11 years and two months’ imprisonment with a non-parole period of eight years - Appeal allowed - Appellant re-sentenced to 11 years and one months’ imprisonment with a non-parole period of seven years - Sentencing Act 1991 Part 2B, ss 6H(a), (b), (c), 21, 81(1) and 82(1) - R v Arundell [2003] VSCA 69 followed,R v Grossi [2008] VSCA 51, not followed.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC and Mr D A Trapnell SC
Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant
Mr M J Croucher
Slades & Parsons
VINCENT JA:
I agree that this appeal should be allowed and the appellant re-sentenced as proposed by Nettle JA in his judgment. Perhaps not unsurprisingly, I find my own reasoning in Arundell[1] quite persuasive and am comforted that other members of the Court agree that the decision was correct. There is, I also accept, some force in Nettle JA’s criticism of the reasoning of the majority judgment in which I joined in Grossi.[2] However, and without debating the point, I remain unpersuaded that the alternative interpretation is much less problematic. Accordingly, I find myself unable to recant. Regrettably, the provisions in Part 2B of the Sentencing Act were not well drafted and, as Weinberg JA pointed out, however they are interpreted, there will be anomalies.
It appeared to me when considering the matter in Grossi to be highly unlikely that the legislature intended that, overall, a person who was found guilty of three relevant offences at the same time, perhaps arising out of the same course of conduct and not demonstrating a continuing propensity to engage in that type of behaviour would be, for sentencing purposes, in a worse position than an individual who had twice previously been found guilty of such offences and had demonstrated a tendency to recidivism. What could be the accident of separate presentation would result in quite different applicable maximum penalties applicable to the various offences.
... I am not unmindful of the differences in the provisions concerning serious violent offenders,…
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 Roussety [2008] VSCA 259
Case
[2008] VSCA 259
Decision Date
CaseChat Overview and Summary
The appeal concerns the sentencing of the appellant, Roussety, who was convicted of numerous counts of obtaining property by deception and obtaining financial advantage by deception. The case was heard in the Court of Appeal, where the appellant challenged the severity of the sentence imposed by the trial judge. The central issue was whether the trial judge erred in considering offences committed before the commencement of what was described as a continuing criminal enterprise, and whether the sentence was manifestly excessive, breached the principle of totality, and failed to adequately consider the appellant's guilty plea and prospects of rehabilitation.
The court found that the trial judge did err in considering the pre-continuing criminal enterprise offences, as they were not relevant to the assessment of the appellant’s culpability or the appropriate punishment for the crimes at hand. Additionally, the court concluded that the sentence imposed was manifestly excessive and contravened the principle of totality. The sentence, which was 11 years and 2 months with a non-parole period of 8 years, did not sufficiently account for the appellant’s guilty plea nor his prospects of rehabilitation. The court emphasised the importance of these factors in the sentencing process, highlighting the need for a balanced approach that recognises both the seriousness of the crimes and the potential for the offender’s reform.
In light of these findings, the appeal was allowed, and the appellant was re-sentenced. The new sentence was 11 years and 1 month with a non-parole period of 7 years, reflecting a more balanced consideration of all relevant sentencing principles. The court's decision underscores the necessity for trial judges to carefully weigh all factors, including the totality principle and the offender's prospects for rehabilitation, when determining an appropriate sentence. The final orders of the court mandated the re-sentencing of the appellant in accordance with the new sentence determined by the Court of Appeal.