R v Schaefer & Tran - [2007] VSCA 36

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 242 of 2006
No. 246 of 2006

THE QUEEN
THE QUEEN	v
ROBERT JACK SCHAEFER
and
VAN TAM TRAN

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JUDGES:	VINCENT and REDLICH JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 January 2007
DATE OF JUDGMENT:	15 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 36

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Criminal Law – Sentence – Dealing with proceeds of crime – Obtaining financial advantage by deception – Bank employee involved in the illegal transfer of money – Appellants’ bank accounts used for money laundering – Parity between co-offenders – Whether sentencing judge failed to adequately distinguish between role of appellants and another co-accused – Manifest excess – Whether sentencing judge failed to give sufficient weight to factors militating in favour of mitigation of penalty – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K G Gilligan	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant Schaefer	Mr D A Dann	Campbell McAuley
For the Appellant Tran	Mr M H Thomas	Victoria Legal Aid

VINCENT JA:

The appellants[1] Robert Jack Schaefer (“Schaefer”) and Tam Van Tran (“Tran”), were separately presented, before the County Court at Melbourne, on 4 July 2006, each on two counts of dealing with the proceeds of crime. The counts related to different activities but arose out of the same criminal enterprise. A third co-offender, Melissa Jennison (“Jennison”), came before the court at the same time; in her case, on four counts of obtaining a financial advantage by deception. Tran was presented on a further and unrelated count of obtaining property by deception.
[1]Leave to appeal was granted on 29 November 2006.

All entered pleas of guilty and, after hearing submissions advanced in mitigation of penalty, the judge, on 25 July 2006, imposed the following sentences upon them:

Schaefer:[2]
[2]Presentment No C0504622.1.
On count 1 - 15 months' imprisonment;
On count 2 - 15 months' imprisonment

These sentences were to be served concurrently. His Honour further ordered that six months of that period be served immediately, with the service of the balance of nine months to be suspended for a period of two years.[3]
[3]A confiscation order was also made pursuant to s 78(1) of the Confiscation Act 1997.
Tran:[4]
[4]Presentment No C0504622.
On count 1     -          18 months' imprisonment;
  On count 2     -          18 months' imprisonment;
  On count 3     -          18 months' imprisonment.

His Honour directed that six months of the term imposed on each of counts 1 and 2 be served cumulatively with that imposed on count 3 and upon each other. This created a total effective sentence of two years and six months' imprisonment in respect of which he fixed a non-parole period of 12 months.[5]
Jennison:[6]

Jennison was, on each of the four counts on which she was presented, sentenced to 18 months’ imprisonment. It was ordered that six months of each of the terms imposed on counts 1, 2 and 3 be served cumulatively upon the sentence imposed on count 4…

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 Schaefer & Tran

Details

AGLC: R v Schaefer and Tran [2007] VSCA 36
Case: [2007] VSCA 36
Decision Date: 15 March 2007

CaseChat Overview and Summary

In the case of R v Schaefer & Tran, the appellants, Schaefer and Tran, faced charges related to their involvement in the illegal transfer of money and subsequent money laundering. The case was heard in the Court of Appeal, where the appellants sought to challenge the sentences imposed upon them by the primary judge. Schaefer and Tran argued that the sentencing judge had failed to adequately distinguish between their respective roles in the crime and had not sufficiently considered the factors that should have led to a reduction in their penalties.

The primary legal issues before the court were whether the sentencing judge had adequately distinguished between the roles of the appellants and another co-accused and whether the judge had given sufficient weight to the mitigating factors in determining the sentences. The appellants contended that the sentences were a manifest excess and that the sentencing judge had not properly balanced the aggravating and mitigating factors.

The court found that the sentencing judge had carefully considered the roles of all parties involved and had appropriately distinguished between them. The court also determined that the judge had adequately weighed the mitigating factors and that the sentences were not a manifest excess. The court held that the appeals should be dismissed, as the sentences imposed were within the appropriate range and the judge had exercised their discretion correctly in determining the penalties for the appellants.

Orders