R v Seiler - [2005] VSCA 146

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 233 of 2004

THE QUEEN
	v.
WAYNE JOHN SEILER

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2005
DATE OF JUDGMENT:	25 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 146

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Criminal law – Sentence – Obtaining financial advantage by deception (4 counts) – No base sentence set by sentencing judge to which orders for cumulation could attach – No appropriate framework against which the reasonableness of orders for cumulation could be assessed – Appellant engaged in self-destructive conduct following a series of personal set backs – No prior convictions – Principle of general deterrence – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C.	Mr G. Duncan

BUCHANAN, J.A.:

I will ask Vincent, J.A. to deliver the first judgment in this case.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court. On 27 August 2004, to four counts of obtaining financial advantage by deception in respect of each of which he was sentenced to imprisonment for three years. The sentencing judge made orders that two years of each of these sentences was to be served cumulatively upon two years of each other sentence. This created a total effective sentence of eight years. His Honour then fixed a non-parole period of four years.

As counsel for the Crown readily conceded in written submissions provided to the Court, his Honour clearly fell into error in sentencing in this manner. There was simply no base sentence to which orders for cumulation could properly attach and no appropriate framework against which the reasonableness of any particular order for cumulation could be assessed.

Setting to one side the obvious consideration that to sentence in this way is not permitted by the provisions of the Sentencing Act 1991, as Ormiston, J.A. pointed out in R. v. Nikodjevic[1], this is no mere matter of form or procedure, but one which may well result in sentences that arguably do not reflect the seriousness of individual offences in particular cases or their relationships to each other and can impact, as here, upon the appropriateness of the total effective sentence handed down.
[1][2004] VSCA 222.

In this situation, it is necessary for the Court to set aside the sentences imposed upon the appellant and to re-sentence him. Accordingly, there is no need to address the various complaints set out in the appellant's written submissions. However, I would add that, had it become necessary to do so, I would have expressed a view that the total effective sentence in this case was clearly and manifestly excessive.

The following description of the circumstances of the appellant's conduct is based upon the summary of evidence provided to the Court and concerning which, I understand, there is no controversy.

In September 2002, following the breakdown of his marriage, the appellant, who was then aged…

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 Seiler

Details

AGLC: R v Seiler [2005] VSCA 146
Case: [2005] VSCA 146
Decision Date: 25 May 2005

CaseChat Overview and Summary

The appellant in this case was convicted of obtaining financial advantage by deception on four counts. He appealed against his sentence, which involved a term of imprisonment and orders for cumulation. The appeal raised questions about the reasonableness of the cumulation orders given the sentencing judge did not set a base sentence, and whether the trial judge adequately considered the principles of general deterrence.

The court had to determine if the sentencing judge's decision to impose cumulation orders without a base sentence was justifiable. It also had to consider whether the trial judge failed to adequately weigh the principle of general deterrence against other sentencing considerations, such as the appellant's personal circumstances and lack of prior convictions. The court needed to decide if the sentence was manifestly inadequate or excessive in light of these factors.

The court found that the sentencing judge did not provide a base sentence, which made it difficult to assess the appropriateness of the cumulation orders. It was also noted that the trial judge did not explicitly consider the principle of general deterrence in relation to the appellant's personal circumstances and lack of criminal history. Given these findings, the court held that the sentence was manifestly inadequate. The appeal was therefore allowed, and the matter was remitted for resentencing.

No specific orders were made in the judgment aside from allowing the appeal and remitting the matter for resentencing. The court emphasised the importance of a clear framework for cumulation orders and the need to balance general deterrence with individual circumstances in sentencing.

Orders