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R v Swift

R v Swift

Case [2007] VSCA 52 21 March 2007

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 67 of 2006
THE QUEEN	v
WARWICK SWIFT

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JUDGES:	VINCENT and NETTLE JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2007
DATE OF JUDGMENT:	21 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 52

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CRIMINAL LAW – Sentencing – Whether sentence manifestly excessive – Obtaining property by deception (2 counts) and obtaining financial advantage by deception (6 counts) – Whether use of Victim Impact Statements was prejudicial in sentencing discretion – Whether contents of Victim Impact Statements are admissible and may be relied upon Sentencing Act 1991, ss 95B, 95D.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant	Mr P J Morrissey	Victoria Legal Aid

VINCENT JA:

I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

This is an appeal against a total effective sentence of five years and three months imprisonment, with a non-parole period of three years and six months, imposed on the appellant on 9 March 2006 after pleading guilty to two counts of obtaining property by deception (counts 1 and 6) and six counts of obtaining financial advantage by deception (counts 2, 3, 4, 5, 7 and 8) totalling more than $1.5 million.

The appellant was granted leave to appeal by a single judge of this court on 7 September 2006, principally on the basis that at least one of the appellant’s grounds of appeal was thought to be reasonably arguable but also because the judge thought that the court may wish to give some general guidance as to the way in which inadmissible, inaccurate or inappropriately prejudicial material in victim impact statements is to be handled by sentencing judges.

Use of victim impact statements

It is convenient to begin with that issue. Section 95B of the Sentencing Act 1991 provides that a victim impact statement may contain particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence but that the court may rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it. The section does not specify criteria of admissibility, and so it leaves the question of admissibility largely to the common law. But, in providing what may be included in a victim impact statement, it implies that a statement of particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence is not to be regarded as inadmissible by reason only that it is hearsay.

Section 95D enables the court to require the victim to attend and to give evidence and thereby to give first hand evidence of the contents of the statement. But that does not mean that a statement must be excluded…

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 Swift

Details

AGLC: R v Swift [2007] VSCA 52
Case: [2007] VSCA 52
Decision Date: 21 March 2007

CaseChat Overview and Summary

In the case of R v Swift, the respondent was convicted of obtaining property by deception on two counts and obtaining financial advantage by deception on six counts. The matter was heard in the Supreme Court of Queensland. The primary focus of the court was to determine whether the sentence imposed was manifestly excessive and whether the use of Victim Impact Statements (VIS) during the sentencing process was prejudicial in exercising the court's discretion. Furthermore, the court examined whether the contents of the VISs could be admissible and relied upon during sentencing under the Sentencing Act 1991.

The legal issues before the court revolved around the interpretation of the Sentencing Act 1991, specifically sections 95B and 95D, in the context of the sentencing discretion afforded to the court. The respondent argued that the sentence was manifestly excessive, and that the use of VISs during sentencing was prejudicial. The court was required to consider whether the statutory provisions allowed for the admission of VISs and if their contents could be relied upon when determining the appropriate sentence.

The court determined that the sentence imposed was not manifestly excessive, as it was within the range of sentences typically imposed for similar offences. The court also held that the use of VISs was not prejudicial in the exercise of the court's sentencing discretion. In reaching this conclusion, the court emphasised the importance of considering the impact of the offence on the victims and their families as a relevant factor in sentencing. The court found that the statutory provisions allowed for the admission of VISs and their contents could be relied upon, provided that they were relevant and not unfairly prejudicial.

The court further held that the VISs in this case were relevant and did not unfairly prejudice the sentencing process. The content of the VISs was deemed to be admissible and could be considered in determining the appropriate sentence. The court's decision was based on the principle that the sentencing process should take into account the impact of the offence on the victims and their families, as long as the process remains fair and just.

Orders