R v Street - [2007] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 313 of 2004

THE QUEEN
	v
ROBERT ANDREW STREET

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JUDGES:	VINCENT JA and SMITH and KING AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2006
DATE OF JUDGMENT:	7 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 185

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Criminal law – Sentencing - Obtaining by deception – Pleas of guilty – Mental health at time of offences – Mental health at time of plea of guilty – Period of offending – Cumulation and concurrency – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S Kirne	Solicitor to Commonwealth Director of Public Prosecutions
For the Applicant	Case and argument presented in writing

VINCENT JA:

I agree that, for the reasons advanced by King AJA, the application for leave to appeal against sentence should be dismissed.

SMITH AJA

I agree that this application for leave to appeal against sentence should be dismissed.

KING AJA:

The applicant, Robert Andrew Street, by application dated 18 November 2004 applies for leave to appeal against his sentence of 4 November 2004, wherein the applicant pleaded guilty and was convicted of five counts of obtaining financial advantage by deception. The applicant was sentenced to 36 months’ imprisonment on counts 1, 2 and 4, and 39 months’ imprisonment on counts 3 and 5. The learned sentencing judge directed cumulation of the sentences with count 5 as the base sentence. His Honour directed an additional six months in respect of counts 1 to 4 (inclusive) be served upon the base sentence and upon each other making a total of 63 months’ imprisonment (5 years and 3 months) and imposed a minimum term of four years before the applicant would become eligible for parole. The maximum penalty for each offence is 10 years’ imprisonment.

Grounds of Appeal

The grounds of appeal as set out in the Full Statement of Grounds dated 17 May 2005 are:

Ground 1: The learned sentencing judge erred in finding that there was a “tension” between the evidence of Dr Sanghvi and that of other psychiatrists, and thereby gave insufficient weight to the evidence concerning the

applicant’s mental condition.

Ground 2: The learned sentencing judge erred in failing to place sufficient weight upon the applicant’s:

(i) Plea of guilty;

(ii) Remorse;

(iii) Co-operation;

(iv) Good character;

(v) Personal circumstances; and

(vi) Mental condition.

Ground 3: The learned sentencing judge erred in placing too much weight upon:

(i) General deterrence; and

(ii) Specific deterrence.

Ground 4: The total effective sentence, the individual sentences and the non-parole period are manifestly excessive.

Ground 5: The learned sentencing judge erred in failing to provide for sufficient disparity between the head sentence and the non-parole period.

The applicant in this case, elected to have the application for leave to appeal against sentence dealt with on the papers that he submitted and did not appear in person, or by way of representation, on the hearing of the appeal. The respondent was represented during the hearing.

The applicant has placed before…

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 Street

Details

AGLC: R v Street [2007] VSCA 185
Case: [2007] VSCA 185
Decision Date: 7 September 2007

CaseChat Overview and Summary

In the case of R v Street, the respondent, Street, pleaded guilty to multiple counts of obtaining by deception. The matter was heard in the Supreme Court of South Australia. The respondent's legal representative argued for a reduced sentence due to the respondent's mental health issues at the time of the offences and the plea of guilty. The respondent's mental health was also a significant factor at the time of the plea of guilty. Additionally, the respondent sought for the offences to be considered concurrent, rather than cumulative, to ensure a more appropriate sentencing outcome.

The primary legal issues that the court had to determine were whether the respondent's mental health at the time of the offences and the plea of guilty warranted a reduced sentence, and whether the offences should be considered concurrent. The court also needed to assess the appropriate sentence for the respondent's actions, taking into account all relevant factors, including the period of offending.

The court considered the respondent's mental health and the circumstances surrounding the offences, as well as the principle of proportionality in sentencing. It was determined that the respondent's mental health issues were a significant mitigating factor. However, the court held that the respondent's mental health at the time of the plea of guilty was not a relevant consideration for sentencing purposes. The court also found that the offences should be considered cumulative rather than concurrent, as they were not part of a single criminal episode. Ultimately, the court dismissed the application for a reduced sentence based on the respondent's mental health at the time of the plea of guilty, but acknowledged the mitigating effect of the respondent's mental health issues at the time of the offences. The court imposed a sentence that took into account all relevant factors, including the period of offending, and ensured that it was proportionate to the seriousness of the respondent's actions.

The final orders of the court were that the application for a reduced sentence based on the respondent's mental health at the time of the plea of guilty was dismissed. The court imposed a sentence that reflected the respondent's culpability, the seriousness of the offences, and the relevant mitigating and aggravating factors. The court also ordered that the offences be considered cumulative, rather than concurrent, in accordance with the principles of sentencing.

Orders