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Shiel v The Queen

Shiel v The Queen

Case [2017] VSCA 359 5 December 2017

Appeal

Sentencing

Obtaining financial advantage by deception

Continuing criminal enterprise offences

Non-parole period

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0033

DANIEL SHIEL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	SANTAMARIA and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 November 2017
DATE OF JUDGMENT:	5 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 359
JUDGMENT APPEALED FROM:	[2016] VCC 1218 (Judge Maidment)

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CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception – Attempting to obtain financial advantage by deception – Sentence of 6 years and 3 months’ imprisonment with non-parole period of 4 years – Appellant sentenced on basis that offences are continuing criminal enterprise offences – Whether sentencing judge erred in imposing automatic increase in sentences on charges the subject of continuing criminal enterprise offences – R v Arundell [2003] VSCA 69; R v Grossi (2008) 23 VR 500; and Abela v The Queen [2014] VSCA 266 considered – Ludeman v The Queen (2010) 31 VR 606 discussed – Appeal allowed – Appellant resentenced to 5 years and 10 months’ imprisonment with non-parole period of 3 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R J de Vietri With Ms A Renieris	Victoria Legal Aid
For the Respondent	Mr G J C Silbert QC with Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA
COGHLAN JA:

The appellant, now aged 37, pleaded guilty to five charges of obtaining financial advantage by deception and one charge of attempting to obtain financial advantage by deception. On 19 August 2016, he was sentenced in the County Court as follows:

Charge Offence Maximum Sentence Cumulation

1 Obtaining financial advantage by deception ($496,553.18 – 40 transactions) [Crimes Act 1958 s 82] 10 years 3 years 6 months

2 Obtaining financial advantage by deception ($280,086.71 – three transactions) [Crimes Act 1958 s 82] 10 years (liable to 20 years)[1] 3 years and 6 months Base

3 Obtaining financial advantage by deception ($337,404.95 – four transactions) [Crimes Act 1958 s 82] 10 years (liable to 20 years) 3 years and 6 months 9 months

4 Obtaining financial advantage by deception ($100,000 – two transactions) [Crimes Act 1958 s 82] 10 years (liable to 20 years) 3 years 9 months

5 Obtaining financial advantage by deception ($233,985.34 – two transactions) [Crimes Act 1958 s 82] 10 years (liable to 20 years) 3 years and 6 months 9 months

6 Attempt to obtain financial advantage by deception ($146,606.70) [Crimes Act 1958 ss 82 and 321M] 5 years (liable to 10 years) 1 year and 8 months Nil

Total effective sentence: 6 years and 3 months’ imprisonment

Non-parole period: 4 years’ imprisonment

Pre-sentence detention declaration 7 days

Section 6AAA Statement 8 years and 4 months’ imprisonment with a non-parole period of 5 years and 6 months’ imprisonment

Other relevant orders Forensic sample order pursuant to Crimes Act 1958 s 464ZF(2)
[1]The appellant was sentenced on the basis that the offences the subject of charges 2 to 6 are…

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 Shiel v The Queen

Details

AGLC: Daniel Shiel v The Queen [2017] VSCA 359
Case: [2017] VSCA 359
Decision Date: 5 December 2017

CaseChat Overview and Summary

Shiel brought an appeal against his sentence after being found guilty of obtaining financial advantage by deception and attempting to obtain financial advantage by deception. The trial judge had sentenced Shiel to six years and three months imprisonment with a non-parole period of four years, finding that the offences were part of a continuing criminal enterprise. Shiel appealed the sentence, arguing that the trial judge erred by applying an automatic increase to the sentences for the charges that were part of a continuing criminal enterprise.

The primary legal issue was whether the trial judge erred in imposing an automatic increase to the sentences for the charges that were part of a continuing criminal enterprise. The Court of Appeal considered relevant authorities, including R v Arundell, R v Grossi, and Abela v The Queen, as well as the decision in Ludeman v The Queen. The Court held that the trial judge erred by imposing an automatic increase to the sentences for the charges that were part of a continuing criminal enterprise, as it was not appropriate to do so in this case.

In light of the error, the Court of Appeal allowed the appeal and resentenced Shiel. The Court imposed a sentence of five years and ten months imprisonment with a non-parole period of three years and nine months. This sentence reflected the appropriate principles and considerations for sentencing in cases involving continuing criminal enterprise offences.

The Court also made orders regarding the finalisation of the appeal and the execution of the new sentence.

Orders