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Rees v The Queen

Rees v The Queen

Case [2012] ACTCA 6 6 February 2012

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JESSE REES v THE QUEEN
[2012] ACTCA 6 (6 February 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 21 - 2011
No. SCC 57 of 2011

Judges: Higgins CJ, Refshauge and North JJ
Court of Appeal of the Australian Capital Territory
Date: 6 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 21 - 2011
  )          No. SCC 57 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JESSE REES
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Refshauge and North JJ
Date:  6 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be partly upheld.
The sentences imposed by Nield AJ be varied as follows:
i. with respect to count one on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to six months;
ii.with respect to count two on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to four months, one month of which is to be served concurrently with the sentence upon count one;
iii.with respect to count three on the indictment, being the offence of dishonestly obtaining financial advantage by deception, the period of imprisonment be reduced from one year to three months, which shall be cumulative upon the sentences imposed on counts one and four;
iv.with respect to count four on the indictment, being the offence of dishonestly obtaining financial advantage by deception, the period of imprisonment be reduced from one year to six months, which shall be cumulative upon the sentence imposed on count three as to three months ;
v.with respect to count five on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to six months, which shall be cumulative upon count three as to three months;
vi.with respect to count six on the indictment, being the offence of dishonestly obtaining property be deception, the period of imprisonment be reduced from one year to three months, which shall be cumulative upon the other counts.
Pursuant to those variations, the total term of imprisonment shall be 18 months dating from 25 May 2011.
A non-parole period of 11 months dating from 25 May 2011 be imposed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 21 - 2011
  )          No. SCC 57 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JESSE REES
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Refshauge and North JJ
Date:  6 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

In this matter there is an appeal by Mr Rees against sentences imposed in respect of six matters by his…

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 Rees v The Queen

Details

AGLC: Rees v The Queen [2012] ACTCA 6
Case: [2012] ACTCA 6
Decision Date: February 6, 2012

CaseChat Overview and Summary

The case of *Rees v The Queen* concerned an appeal against sentences imposed by Nield AJ. The appellant, Rees, had been convicted on multiple counts of dishonestly obtaining property by deception and dishonestly obtaining financial advantage by deception. The dispute centred on the severity of the custodial sentences and the non-parole period fixed by the trial judge.

The primary legal issue before the appellate court was whether the sentences imposed were manifestly excessive, thereby warranting appellate intervention. This required the court to consider the principles of sentencing, including the gravity of the offences, the appellant's personal circumstances, and the need for deterrence and rehabilitation, in determining if the original sentences were just.

The court reasoned that while the offences were serious, the original sentences of one year imprisonment for each of the six counts, with some concurrency and some cumulation, resulted in a total term that was disproportionate to the overall criminality. The appellate court applied the principle that sentences should reflect the totality of the offending and that individual sentences should not be so severe as to be unjust. Consequently, the court varied the sentences on each count, reducing the periods of imprisonment and adjusting the concurrency and cumulation provisions.

As a result of these variations, the appeal was partly upheld. The total term of imprisonment was reduced to 18 months, dating from 25 May 2011, with a non-parole period of 11 months also dating from 25 May 2011.

Orders

Orders of the court

The appeal be partly upheld.

The sentences imposed by Nield AJ be varied as follows:

i. with respect to count one on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to six months;

ii. with respect to count two on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to four months, one month of which is to be served concurrently with the sentence upon count one;

iii. with respect to count three on the indictment, being the offence of dishonestly obtaining financial advantage by deception, the period of imprisonment be reduced from one year to three months, which shall be cumulative upon the sentences imposed on counts one and four;

iv. with respect to count four on the indictment, being the offence of dishonestly obtaining financial advantage by deception, the period of imprisonment be reduced from one year to six months, which shall be cumulative upon the sentence imposed on count three as to three months ;

v. with respect to count five on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to six months, which shall be cumulative upon count three as to three months;

vi. with respect to count six on the indictment, being the offence of dishonestly obtaining property be deception, the period of imprisonment be reduced from one year to three months, which shall be cumulative upon the other counts.

Pursuant to those variations, the total term of imprisonment shall be 18 months dating from 25 May 2011.

A non-parole period of 11 months dating from 25 May 2011 be imposed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Rees v The Queen [2012] ACTCA 6

Most Recent Citation

Westin v Gordon [2012] ACTSC 44

Cases Citing This Decision

R v West [2023] ACTSC 412
Citation 1 (Para 16)

…or both. The principal consideration in this offence, as well as in the underlying criminality, is the value of the property taken: Rees v The Queen [2012] ACTCA 6 at [3]. Of course, this is not limited to the monetary value of the property, but includes the personal or sentimental value of the property and the…
R v Ruwhiu [2022] ACTSC 290
Citation 2 (Para 1)

…iness proceeds, and the loss will cause some inconvenience. So far as penalty for the offence involving this amount of property, see Rees v The Queen [2012] ACTCA 6 at [5].…
R v Guy [2022] ACTSC 373
Citation 3 (Para 21)

…0] ACTSC 59 at [80], however, if there were no receivers, there would not be so many thieves. This shows its underlying criminality: Rees v The Queen [2012] ACTCA 6 at [3]. Factors that aggravate the offence include: (a)the value of the property: R v Pelecky (No 2) [2020] ACTSC 370 at [40], Law v Illievski [2016]…
R v Mathews [2020] ACTSC 364
Citation 4

…R v Tran [1999] NSWCCA 109 Rees v The Queen [2012] ACTCA 6 Sampson v De Haan [2016] ACTSC 327 Simonds v The Queen [2013] ACTCA 13 Tracey v The Queen [2020] ACTCA 51…
R v Singh [2019] SASCFC 51
Citation 5 (Para 16)

…led without it. In this respect, the evidence was more akin to the evidence in Burrell v The Queen [38] than the evidence in R v Tartaglia. [39] [37] Rees v The Queen (2009) 196 A Crim R 199 at [133]-[134] (Beazley JA, Hulme and Latham JJ agreeing). [38] Burrell v The Queen (2009) 196 A Crim R 199. [39] R v Tartaglia (201…
R v Carmody (No 3) [2017] ACTSC 60
Citation 6 (Para 1)

…entence him, were committed in September and November 2011, over five years ago. Such a gap was recognised by the Court of Appeal in Rees v The Queen [2012] ACTCA 6 at [2] as being relevant when considering such a record. I further note that the central authority on this issue is, of course, Veen v The Queen (No…
R v Horne [2017] ACTSC 36
Citation 7 (Para 1)

…ces (judged by the penalties imposed) since March 2002. Such a gap is a significant matter, as pointed out by the Court of Appeal in Rees v The Queen [2012] ACTCA 6 at [2].…
Amos v McCarron [2017] ACTSC 6
Citation 8 (Para 1)

…Insofar as it is relevant because “continuing criminality” may require a deterrent sentence, I note that, in Rees v The Queen [2012] ACTCA 6 at [2], the Court of Appeal held that four years, much less than in this case, was a relevant gap to negate such a conclusion. Of course, following that gap, Mr Amos had bee…
R v Eyles (No 3) [2017] ACTSC 1
Citation 9 (Para 1)

…ending and the fact that his most recent offending before this offending was committed on 27 June 2010. That gap is significant. See Rees v The Queen [2012] ACTCA 6 at [2].…
Law v Ilievski [2016] ACTSC 291
Citation 10 (Para 1)

…I note that in Rees v The Queen [2012] ACTCA 6, the Court considered that the value of property misappropriated was relevant to sentence after the “underlying criminality” was taken into account. It is also relevant to sentencing for such offences whether the property stolen dishonestly obtained or unlawfully pos…
R v Ware [2016] ACTSC 264
Citation 11 (Para 1)

…The theft offences were also serious. The amount of property is a significant indicator of seriousness: Rees v The Queen [2012] ACTCA 6. In this case, the value of the items stolen were not always available from the evidence. The property for which I did have a value was estimated to be worth $4800, $3000, $500,…
R v Kelly [2016] ACTSC 281
Citation 12 (Para 1)

…he property stolen was also of a considerable value, which is relevant to the seriousness of the offence of theft. See, for example, Rees v The Queen [2012] ACTCA 6 at [5]-[6]. See also R v Hyunh [2005] NSWCCA 220 at [12].…
The Queen v Blundell [2015] ACTSC 383
Citation 13 (Para 1)

…The value of the property stolen is a relevant factor in determining appropriate sentences. See R v Huynh [2005] NSWCCA 220 at [27]; Rees v The Queen [2012] ACTCA 6. It seems to me, the value of the property stolen is very relevant to the seriousness of the theft offences and, at least in one case, amounted to a…
R v Roux (No 2) [2015] ACTSC 361
Citation 14 (Para 1)

…rade. Apart from this, the properties stolen was not of particularly substantial value. A relevant matter of seriousness is noted in Rees v The Queen [2012] ACTCA 6.…
Brendan Dickson v Amanda Patricia Johnston, Damien John Quinn, Andrew John Spencer Gregory, Gregory Martin Palethorpe, Matthew John Craft, Megan Louise Maskill, Graeme Robert Cooper and Rebecca Baynes [2013] ACTSC 94
Citation 15 (Para 1)

…ere is no doubt that the value of property stolen is a relevant factor on sentence, as noted in R v Huynh [2005] NSWCCA 220 at [27]; Rees v The Queen [2012] ACTCA 6. Here the value was less than that of the property stolen in the earlier minor theft for which his Honour imposed a sentence of three months imprison…
Westin v Gordon [2012] ACTSC 44
Citation 16 (Para 1)

…ffic offences and over four years after her most recent offence is highly relevant and entitled Ms Westin to some leniency: see, eg, Rees v The Queen [2012] ACTCA 6 at [2].…

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