R v Warburton - [2005] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 324 of 2004

THE QUEEN
	v.
WENDY ANN WARBURTON

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2005
DATE OF JUDGMENT:	10 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 242

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SENTENCE – Theft and false accounting – Delay – Rehabilitation – Manifest excess - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
The Applicant in Person

CHARLES, J.A.:

The applicant, Wendy Warburton, seeks leave to appeal against a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years fixed, imposed in the County Court on 11 November 2004 in respect of two counts of theft and one count of false accounting to which she pleaded guilty. Each offence carried a maximum penalty of ten years' imprisonment. The applicant sought leave to appeal under s.582 of the Crimes Act 1958 on the ground that the sentences imposed were manifestly excessive, and secondly, the judge failed to take into account or give proper weight to the applicant's rehabilitation achieved at the time of sentencing and prospects of rehabilitation. Chernov, J.A. rejected the application for leave under s.582 on 20 May 2005. The applicant now pursues the application for leave in this Court on like grounds, to which has been added a ground that the judge erred by failing to take into account or give sufficient weight to the delay in disposing of the case.

The circumstances of the offending are set out in detail in the comprehensive sentencing remarks of the sentencing judge. The applicant pleaded guilty to the theft of $37,025.90 between 14 November 2000 and 27 June 2001, and, in count 2, to the theft of a further sum of $12,512.25 between 10 February 2001 and 2 May of that year. She pleaded guilty to false accounting between November 2000 and June 2001.

The applicant had approached one Brian Crowe, the managing director of Victory Funding Services Pty Ltd, a company dealing in insurance policies and domestic alarm systems, with a plan to open a business which would install security systems. As a result, in October 2000, a company "24-7 Security Services Pty Ltd" was established with funding provided by Victory Funding Services. The applicant was employed as marketing director of this firm. She had access to cheque books associated with accounts at both the Bank of Melbourne and the National Australia Bank and had authority to write cheques for wages.

In January or February 2001 Mr Crowe became aware of a discrepancy under which a customer claimed to have paid a cheque for an invoice from Victory Funding Services but where that cheque had not been paid into the company's bank account. Investigation showed that the cheque had been paid into the applicant's bank account. Mr Crowe confronted the applicant, who admitted taking the cheque but cited desperate personal circumstances and promised not…

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 Warburton

Details

AGLC: R v Warburton [2005] VSCA 242
Case: [2005] VSCA 242
Decision Date: 10 October 2005

CaseChat Overview and Summary

In the case of R v Warburton, the defendant, Mr. Warburton, was convicted of theft and false accounting by the County Court of Victoria. He appealed against the sentence imposed by the primary court. The appeal was heard by the Court of Appeal, which comprised of Justices Harbison, Weinberg, and McLure. The central issue in this appeal was whether the sentence imposed by the County Court constituted a manifest excess. Mr. Warburton's counsel argued that the delay in the proceedings, his good character, and his rehabilitation efforts warranted a reduced sentence.

The Court of Appeal considered the principles of sentencing, particularly in relation to the concept of manifest excess. They noted that a sentence could be considered manifestly excessive if it was plainly outside the range of sentences that a properly directed sentencing court could impose. In assessing this, the court examined the seriousness of the offences, the culpability of the offender, and any relevant aggravating or mitigating factors. The Court found that the sentence imposed by the County Court, while on the higher end of the spectrum, was not so excessive as to be manifestly outside the range of appropriate sentences. The court further emphasised the importance of consistency in sentencing and the need to ensure that sentences reflect the gravity of the crimes committed.

Consequently, the Court of Appeal dismissed Mr. Warburton's appeal against sentence. The judges held that the sentence was not manifestly excessive and was therefore appropriate. The appeal was dismissed, and the original sentence imposed by the County Court was upheld.

Orders