R v Shannon - [2005] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 279 of 2004

THE QUEEN
	v.
LAWRENCE SHANNON

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JUDGES:	VINCENT and NETTLE, JJ.A. and OSBORN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2005
DATE OF JUDGMENT:	2 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 143

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Criminal law – Obtaining property by deception – 28 counts – Whether continuing criminal enterprise offences – Elaborate fraudulent scheme involving bogus raffles – Sentencing – Substantial funds used by appellant to maintain lifestyle – R. v. Ralph [2004] VSCA 33 followed – Sentencing Act 1991, Part 2B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M. Kowalski	Galbally & O’Bryan

VINCENT, J.A.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

On 31 March 2004 the appellant was arraigned before the County Court at Melbourne on 28 counts of obtaining property by deception in the period between 10 October 1995 and 18 October 2001, to all of which he pleaded guilty. The offences were committed as part of an elaborate fraudulent scheme to obtain large amounts of money through the conduct of bogus raffles. Each raffle was rigged to ensure that no one won the major prize. The raffles purported to be for the purposes of raising funds for a charity called "Kids at Sea" to teach children to sail and provide them with sailing experience, but in truth a substantial part of the money went to maintain the appellant and his family in grand style with expensive cars, a FARR 40 yacht in which to sail to and from Sydney and the Whitsundays, school fees for the appellant's children, luxury accommodation at tourist resorts and general spending money. Over the period in question, honest members of the public were induced to purchase raffle tickets to the value of more than $7 million. As the judge below put it, the scheme gave the appellant an excuse to live like a millionaire at the expense of his victims.

After hearing a plea in mitigation, on 7 October 2004 the judge sentenced the appellant on count 1 to a term of imprisonment of 12 months, on each of counts 2 to 13 to imprisonment for a term of 18 months, and on each of counts 14 to 28, as a continuing criminal enterprise offender, to a term of imprisonment of 24 months. In his sentencing remarks the judge observed that he had concluded that there should be a total effective head sentence of seven-and-a-half years, but that, rather than embark upon what his Honour described as a rather artificial exercise in accumulation count by count, he would simply direct that the whole of the sentences on counts 2, 3, 4 and 5, together with six months of the sentence on count 6, be served cumulatively on the sentence on count 1 and on each other, making for a total effective sentence of seven years and six months,…

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 Shannon

Details

AGLC: R v Shannon [2005] VSCA 143
Case: [2005] VSCA 143
Decision Date: 2 June 2005

CaseChat Overview and Summary

In the matter of R v Shannon, the appellant faced a criminal prosecution involving 28 counts of obtaining property by deception. The court was presented with an elaborate scheme wherein the appellant conducted fraudulent raffles to obtain funds from numerous victims. The appellant's actions were considered part of a continuing criminal enterprise, raising significant legal issues regarding the classification and sentencing of the offences. The Supreme Court of Victoria was tasked with determining the appropriate legal characterisation of the offences and the subsequent sentencing.

The court had to decide whether the appellant's actions constituted continuing criminal enterprise offences, as opposed to isolated incidents. This classification was crucial as it would impact the severity of the penalties imposed. The court examined the nature and extent of the appellant's fraudulent activities, noting the significant number of victims and the substantial funds obtained through deception. The court also considered the appellant's use of the funds to maintain a lifestyle, which was indicative of a more organised and persistent criminal enterprise.

Following the principles outlined in R v Ralph, the court found that the appellant's actions did indeed form part of a continuing criminal enterprise. The court emphasised the appellant's persistent and systematic use of deception to obtain property, which aligned with the criteria for a continuing criminal enterprise. The court further applied the provisions of the Sentencing Act 1991, Part 2B, to determine an appropriate sentence. The substantial impact on the victims and the appellant's lifestyle funded by the proceeds of crime were critical factors in the sentencing decision.

The court imposed a sentence that reflected the seriousness of the offences, considering both the harm caused to the victims and the appellant's persistent criminal conduct. The court's decision underscored the importance of addressing organised and ongoing criminal activities through appropriate legal classifications and sentencing. The final orders included a substantial custodial sentence and additional penalties to ensure the appellant could not profit from the criminal enterprise.

Orders