Wells v The Queen - [2018] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0222

BARRY JOHN WELLS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 March 2018
DATE OF JUDGMENT:	28 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 79
JUDGMENT APPEALED FROM:	[2017] VSC 575 (John Dixon J)

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CRIMINAL LAW – Sentence – Appeal – Conspiracy to defraud the State of Victoria and receiving secret commissions – Sentenced to 8 years and 9 months’ imprisonment with non-parole period of 6 years and 3 months – Whether sentence on conspiracy charge manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Thomas	Furstenberg Law
For the Respondent	Mr C B Boyce SC with Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

TATE JA
BEACH JA
NIALL JA:

On 30 June 2017, the applicant, Barry John Wells, pleaded guilty to one charge of conspiracy to defraud contrary to the common law and three charges of receiving a secret commission contrary to s 176(1) of the Crimes Act 1958.

On 25 September 2017, he was sentenced by the Supreme Court as follows:

Charge Offence Maximum penalty Sentence Cumulation

1 Conspiracy to defraud (common law) 15 years’ imprisonment (Crimes Act s 320) 7 years and 6 months’ imprisonment Base

2 Receiving a secret commission (Crimes Act s 176(1)) 10 years’ imprisonment 1 year’s imprisonment 6 months

3 Receiving a secret commission (Crimes Act s 176(1)) 10 years’ imprisonment 1 year’s imprisonment 6 months

4 Receiving a secret commission (Crimes Act s 176(1)) 10 years’ imprisonment 1 year’s imprisonment 3 months

Total effective sentence: 8 years and 9 months’ imprisonment

Non-parole period: 6 years and 3 months

Pre-sentence detention: 33 days

S 6AAA statement: 11 years and 6 months’ imprisonment with a non-parole period of 8 years and 6 months.

Other orders: A pecuniary penalty order of $1,375,153.91, made by consent.

The applicant has applied for leave to appeal on the ground that the sentence imposed in respect of charge 1, the conspiracy charge, is manifestly excessive. The application for leave was heard at the same time as the appeal against sentence brought by the applicant’s co-accused, Albert Hoe Ooi (‘Ooi’).[1]
[1]Ooi v The Queen [2018] VSCA 78.

For the reasons that follow, we would grant leave but we would dismiss the appeal.

The circumstances of the offending[2]

Charge 1

[2]This summary is largely drawn from the detailed Prosecution Opening on Plea which was tendered before the sentencing judge.

The applicant was employed by the Victorian Department of Infrastructure (‘DOI’) from 13 April 2006, and then by the Department of Transport (‘DOT’) from April 2008. In April 2012, he transferred to Public Transport Victoria (‘PTV’). Throughout this time, the applicant was a manager of bus and regional infrastructure, and undertook project management of civil works and infrastructure projects.

Sometime in 2007, the applicant suggested to Ooi that he could source and supply…

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 Wells v The Queen

Details

AGLC: Barry John Wells v The Queen [2018] VSCA 79
Case: [2018] VSCA 79
Decision Date: 28 March 2018

CaseChat Overview and Summary

The respondent, Wells, was convicted of conspiracy to defraud the State of Victoria and receiving secret commissions, for which he was sentenced to eight years and nine months’ imprisonment with a non-parole period of six years and three months. The primary judge found that the offences were of high moral blameworthiness and required significant deterrence. The respondent appealed, arguing that the sentence on the conspiracy charge was manifestly excessive. The appeal was dismissed by the Court of Appeal, which found that the sentence was within the range of appropriate sentences for the offences committed.

The legal issue before the Court of Appeal was whether the sentence imposed on the respondent for the conspiracy charge was manifestly excessive. The Court of Appeal noted that the trial judge had considered the relevant sentencing principles and the principles of totality, and had imposed a sentence that was within the range of appropriate sentences for the offences committed. The Court of Appeal held that the sentence was not manifestly excessive, and dismissed the appeal.

The Court of Appeal found that the trial judge had appropriately considered the relevant sentencing principles, including the need for general and specific deterrence, and the need to reflect the community’s condemnation of the offences. The Court of Appeal held that the trial judge had correctly found that the offences were of high moral blameworthiness and required significant deterrence. The Court of Appeal also found that the sentence imposed was within the range of appropriate sentences for the offences committed, and that the principles of totality had been appropriately applied. The Court of Appeal held that the appeal should be dismissed.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the primary judge.

Orders