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R v Senese

R v Senese

Case [2004] VSCA 136 13 August 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.253 of 2002

THE QUEEN
	v.
ANTHONY EUSTACE SENESE

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JUDGES:	WINNEKE, P., CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2004
DATE OF JUDGMENT:	13 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 136

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Criminal law – Theft – Appropriation by applicant of funds belonging to shareholders – False accounting by applicant to owners of the money – Claimed belief by applicant of right to deal with money in impugned manner – Onus on prosecution to establish lack of such belief – Whether jury sufficiently directed on this issue – Whether charge effectively reversed onus of proof – Jury sufficiently directed that prosecution must establish lack of honest belief – No reasonable likelihood that jury understood that the onus was on the applicant to prove honest belief – Failure to take exception to charge - Duplicity – Prosecution case that proceeds were stolen by applicant when they were banked or when applicant commenced withdrawing them – Whether counts bad for duplicity - Whether evidence revealed two or more offences – Whether latent duplicity in the verdict – Meaning of “latent duplicity” – Whether verdict lacked necessary unanimity – Inference or hypothesis consistent with innocence entitles offender to acquittal – Crimes Act 1958 ss.74, 83(1)(a) – R v. Walsh [2002] VSCA 98 applied.

Criminal law – Sentence – Theft by applicant of over $5m belonging to shareholders – Head sentence of 7 years’ imprisonment with non-parole period of 5 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. M.A. Lincoln	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. M.J. Croucher	Purcell Balfe and Webb

WINNEKE, P.:

For the reasons advanced by Chernov, J.A., I agree that the applications for leave to appeal against conviction and sentence should be dismissed.

CHERNOV, J.A.:

On 4 September 2002, the applicant, Anthony Eustace Senese, who is now aged 57 years, was found guilty after a lengthy trial in the County Court at Melbourne of 25 counts of false accounting (counts 2-24, 53 and 54) contrary to s.83(1)(a) of the Crimes Act 1958[1] and two counts of theft (counts 25 and 26) contrary to s.74 of the Crimes Act[2]. The two theft counts alleged that on or about 22 November 1995 and on or about 28 March 1996 the applicant stole approximately $4.3m. and one $1m. respectively, being the proceeds of certified deposits belonging to shareholders in one of his companies. The false accounting charges were concerned with the applicant’s false representations to those shareholders as to the state of their respective interests in the certified deposits. The applicant pleaded guilty to count 52, which alleged that he obstructed an auditor of a company contrary to ss.333 and 1311(1) of the Corporations Law 2001. The maximum penalty for breach of s.83(1)(a) of the Crimes Act was, at the relevant time, 7 years and six months’ imprisonment.[3] The maximum penalty for theft was, at the relevant time, 10…

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 Senese

Details

AGLC: R v Senese [2004] VSCA 136
Case: [2004] VSCA 136
Decision Date: 13 August 2004

CaseChat Overview and Summary

The case of R v Senese involves the applicant, Senese, who stands accused of appropriating funds belonging to shareholders through false accounting. The dispute reached the court where the prosecution had to establish that Senese lacked the honest belief that he had the right to deal with the money in the manner he did. The applicant argued that he believed he had a right to the funds, and the onus was on the prosecution to prove otherwise. The court had to determine if the jury was sufficiently directed on this issue and whether the charge effectively reversed the onus of proof.

The court examined the charge given to the jury and noted that it was insufficiently directed on the issue of the prosecution's burden to establish a lack of honest belief by the applicant. The court found that there was no reasonable likelihood that the jury understood that the onus was on Senese to prove his honest belief. Furthermore, the court found that the failure to take exception to the charge precluded an appeal on this ground. Regarding duplicity, the prosecution alleged that the proceeds were stolen when they were banked and when the applicant began withdrawing them. The court found that the counts were not bad for duplicity as the evidence revealed a single offence.

The court also examined the sentence imposed on Senese, a head sentence of seven years' imprisonment with a non-parole period of five years for stealing over $5 million from shareholders. The court concluded that this sentence was not manifestly excessive. The applicant's appeal against conviction and sentence was dismissed.

Orders