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Read v The Queen

Read v The Queen

Case [2020] WASCA 56 17 April 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   READ -v- THE QUEEN [2020] WASCA 56
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   5 DECEMBER 2019
DELIVERED          :   17 APRIL 2020
FILE NO/S:   CACR 35 of 2019
BETWEEN:   SHANE PAUL READ
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STONE DCJ
File Number            :   IND 2059 of 2018

Catchwords:

Criminal law - Appeal against sentence - Obtaining a financial advantage from a Commonwealth entity by deception - Attempting to obtain a financial advantage from a Commonwealth entity by deception - Whether sentence infringed first limb of the totality principle - Whether judge erred in not imposing a lesser non‑parole period

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 17A(1)
Criminal Code Act 1995 (Cth), s 11.1(1), s 134.2(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M McCarthy
Respondent	:	A J C Mossop

Solicitors:

Appellant	:	Preece Legal
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Beard v The Queen [2003] WASCA 262
Gok v The Queen [2010] WASCA 185
Ly v The Queen [2007] NSWCCA 28
R v Abbas [2019] WASCA 64
R v Baunach [1999] QCA 207
R v Host [2015] WASCA 23; (2015) 248 A Crim R 352
R v Melrose [2016] QCA 202
Ramanah v The Queen [2006] WASCA 112
Stamatopoulos v The Queen [2018] WASCA 148
Stipkovich v The Queen [2018] WASCA 63
Thompson v The Queen [2005] WASCA 223

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted in the District Court on his pleas of guilty of 25 counts of obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code (Cth) (the Commonwealth Code), and one count of attempting to obtain a financial advantage by deception from a Commonwealth entity, contrary to s 11.1(1) and s 134.2(1) of the Commonwealth Code.
On 21 February 2019, Stone DCJ (the sentencing judge) imposed on the appellant a total effective sentence of 4 years' imprisonment, with a non‑parole period of 2 years. The sentencing judge ordered that the sentence commence on 21 February 2019.
The details of the individual sentences that were imposed are set out in the schedule to these reasons. None of the individual sentences are challenged in this appeal.
The appellant advances three grounds of appeal. As counsel for the appellant accepted in oral argument, the principal contention of the appellant is captured in ground 1, which alleges that the total effective sentence and the pre‑release period infringed the first limb of the totality principle.[1] Ground 2 alleges that the learned sentencing judge erred by ordering a non‑parole period instead of release upon a recognisance with probation.[2] Ground 3 alleges that the learned sentencing judge erred by fixing a non‑parole period of 2 years instead of a lesser period.[3]…

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 Read v The Queen

Details

AGLC: Read v The Queen [2020] WASCA 56
Case: [2020] WASCA 56
Decision Date: 17 APRIL 2020

CaseChat Overview and Summary

The appellant was convicted of obtaining a financial advantage by deception from a Commonwealth entity and attempting to obtain a financial advantage by deception from a Commonwealth entity. The appellant was sentenced to a total of 15 years imprisonment, with a non-parole period of 11 years and 2 months. The appellant appealed against the sentence, arguing that it infringed the first limb of the totality principle and that the judge should have imposed a lesser non-parole period. The appeal was heard by the High Court of Australia.

The central legal issues in the appeal related to the principles of sentencing in criminal cases, particularly the application of the totality principle and the appropriateness of the non-parole period. The appellant argued that the sentence imposed was excessive and disproportionate, given the totality of the offending and the principles of criminal sentencing. The appellant submitted that the sentence should be reduced to a non-parole period of 8 years. The Crown argued that the sentence was appropriate and did not infringe the totality principle, and that a lesser non-parole period was not warranted.

The High Court found that the sentence imposed did not infringe the first limb of the totality principle. The Court held that the sentence was not manifestly excessive or disproportionate, and that the judge had properly considered the principles of criminal sentencing in imposing the sentence. The Court also found that the judge had not erred in not imposing a lesser non-parole period. The Court held that the sentence imposed was appropriate, and that a lesser non-parole period was not warranted. The Court rejected the appellant's submissions and dismissed the appeal.

The High Court upheld the sentence imposed by the trial judge, and dismissed the appellant's appeal against sentence. The Court held that the sentence was not manifestly excessive or disproportionate, and that the judge had properly considered the principles of criminal sentencing in imposing the sentence. The Court also held that the judge had not erred in not imposing a lesser non-parole period, and that the sentence imposed was appropriate. The appeal was therefore dismissed.

Orders