CRIMINAL LAW — Appeal — Sentence — Obtaining property by deception and associated offences — Applicant police officer obtained residential properties with a view to relying on adverse possession — Whether sentence of 4 years and 6 months’ imprisonment with 2 years and 4 months non-parole manifestly excessive — Utilitarian value of guilty plea during pandemic — Leave to appeal granted — Appeal allowed — Resentenced to 3 years and 6 months’ imprisonment with 1 year and 9 months non-parole.
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APPEARANCES:
Counsel
Solicitors
For the Applicant:
Mr B Walmsley QC with Mr I Lloyd
Condello Lawyers
For the Respondent:
Ms D I Piekusis QC
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA T FORREST JA:
Charges, sentences and grounds of appeal
On 22 May 2020, the applicant, now aged 59 years,[1] pleaded guilty before a judge in the County Court to obtaining property by deception[2] (five charges — charges 1, 2, 3, 4 and 6); attempting to obtain property by deception[3] (one charge — charge 8); unauthorised accessing of police information[4] (one charge — charge 5); and perjury[5] (two charges — charges 7 and 9); and to a related summary offence, obtaining a financial advantage for another.[6]
[1]Her date of birth is 27 October 1962.
[2]Crimes Act 1958, s 81. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, ss 81 and 321M. The maximum penalty is five years’ imprisonment.
[4]Victoria Police Act 2013, s 228. The maximum penalty is five years’ imprisonment or 600 penalty units.
[5]Crimes Act 1958, s 314. The maximum penalty is 15 years’ imprisonment.
[6]Criminal Code Act 1995 (Cth), s 135.2(2). The maximum penalty is one year’s imprisonment.
Following an extensive plea, on 16 September 2020 the judge sentenced the applicant to be imprisoned for four years and six months, and fixed a non-parole period of two years and four months, in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Obtaining property by deception
18 months
3 months
2
Obtaining property by deception
18 months
3 months
3
Obtaining property by deception
2 years 6 months
Base
4
Obtaining property by deception
2 years 3 months
6 months
5
Unauthorised access to police information
6 months
2 months
6
Obtaining property by deception
2 years
4 months
7
Perjury
18 months
3 months
8
Attempting to obtain property by deception
12 months
2 months
9
Perjury
12 months
1 month
Related Summary Offence
Obtaining a financial advantage for another
1 month
—
Total Effective Sentence:
4 years and 6 months’ imprisonment
Non-Parole Period:
2 years 4 months
Pre-sentence Detention Declared:
None
6AAA…
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.
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Details
AGLC
Rossi v The Queen [2021] VSCA 296
Case
[2021] VSCA 296
Decision Date
CaseChat Overview and Summary
In the case of Rossi v The Queen, the appellant, an experienced police officer, faced charges related to obtaining residential properties through deception. The case was heard and determined in the High Court of Australia. The primary issue before the court was the appropriateness of the sentence imposed on the appellant, who was convicted of obtaining property by deception and associated offences. The appellant was sentenced to four years and six months’ imprisonment, with a non-parole period of two years and four months. The appellant argued that this sentence was manifestly excessive, considering the circumstances and the utilitarian value of his guilty plea during the COVID-19 pandemic.
The court was required to consider whether the sentence imposed was manifestly excessive, taking into account the principles of sentencing in Australia. The court recognised the appellant's guilty plea as a significant factor in determining the appropriate sentence, particularly in the context of the pandemic. The court also considered the nature of the offences, the appellant's background, and the principles of proportionality and deterrence in sentencing. The appellant's legal team argued that the sentence was disproportionate to the gravity of the offence, and the court agreed that the sentence was manifestly excessive.
The High Court allowed the appeal and resentenced the appellant to three years and six months’ imprisonment, with a non-parole period of one year and nine months. The court found that the original sentence was manifestly excessive, and the resentencing reflected a more appropriate punishment for the appellant's crimes. The court considered the mitigating factors, including the appellant's guilty plea and the impact of the pandemic on the court system. The final orders of the court were that the appellant's sentence was reduced to the revised term, and the case was remitted to the lower court for any necessary amendments to the sentencing records.