R v Rodgers [2008] VSCA 52

2 He admitted a large number of prior convictions and court appearances commencing in 1995 in Victoria, New South Wales and Queensland. They related to various drug and motor vehicle offences, the possession of tainted goods, receiving stolen goods, impersonating police officers and fraud offences. Notable, for present purposes, are four convictions for obtaining financial advantage by deception and 15 for obtaining property by deception, the last of which was entered against him in the Melbourne Magistrates' Court on 25 February 2005; that is, approximately one month only prior to the commission of the first of the offences with which we are here concerned.

3 After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed, in respect of all counts, an aggregate sentence of five years' imprisonment. He then fixed a minimum term of three years and six months' imprisonment before the appellant would be eligible for parole.

1. The learned sentencing judge erred by including in an aggregate sentence the "rolled up counts" numbered 3 and 4 ... .
2. The learned sentencing judge erred by failing to identify the components of the aggregate sentence. ...
3. The total effective sentence of 5 years imprisonment and the minimum term of 3 years and 6 months imprisonment are each manifestly excessive.

5 I now turn to the circumstances relating to the commission of the appellant's offending about which I understand there is no dispute.

**6 Prior to his appearance before the Magistrate's Court in Melbourne on 25 February 2005, the appellant was in custody on remand when he was visited by his sister, Deborah Fisher. She offered him accommodation once he was released for such time as he required to enable him to make other arrangements. At that time, her husband, Wayne Fisher, and she resided at premises in Gooch Road, Stratford.

7 When the appellant appeared before the Melbourne Magistrates' Court he was, on a Federal offence, released pursuant to a Recognisance Release Order. With regard to a State offence dealt with at the same time, he was sentenced to a term of imprisonment for seven months to be served by way of an Intensive Corrections Order.

8 Upon his release, he travelled by train to Stratford where he was picked up at the railway station by his sister and taken to her home. He lived there for approximately three weeks.

9 On or about 7 March 2005, the appellant went to the Quality Inn Bellevue (the 'Bellevue'), Lakes Entrance, seeking work. He was successful and secured employment as a sous chef on a trial basis and, on 14 March 2005, using the false name of Brenan Roger-Marciano, he signed a work agreement with the management which incorporated a three month probation period. His employment at the Bellevue ceased on 18 May 2005.

10 During the period that he was living at his sister's home, the appellant drove each day from Stratford until he rented a unit in Orme Street, Lakes Entrance, on 29 March 2005.

11 On 30 March 2005, the appellant went to The Big Garage Motor Group ('The Big Garage') in Bairnsdale in order to purchase a car. He introduced himself as Brenan Marciano and, within an hour, had signed a contract to purchase a 2005 Holden Monaro for $61,601.91, indicating that he would arrange for the finance himself. However, the financial manager of the business later contacted him, conveying a quote for finance, from a company known as Capital Finance, that the appellant accepted. An application form was forwarded which he completed and returned. In this application, the appellant claimed that he owned a property at Stratford valued at $340,000, had $25,000 in the bank, a vehicle valued at $35,000 and other assets valued at $50,000. He listed his liabilities as a $10,532 car loan and a credit card limit of $25,000. He stated that he had owned the Stratford property for five years; that he had been employed as a manager at the 'Bellevue' for the last three months; and that he had been employed for the previous five years as a consultant for Bluisys Pty Ltd.

12 Between 30 March 2005 and delivery of the vehicle to him, on 12 April 2005, the appellant attended at The Big Garage several times. On one occasion, he produced a photocopy of a New South Wales issued birth certificate no 206004/1971C, a copy of a New South Wales drivers licence and two rate notices for premises in Gooch Road, Stratford, all in the name of Brenan Marciano. These documents were required as proof of identity and his asset backing.

13 On 12 April 2005, the appellant attended at The Big Garage and signed his finance application as being true and correct. It was approved for the sum of $51,903.91 and he paid the balance of the purchase price ($10,000) by a cheque from his sister Deborah Fisher. The appellant then took possession of the car and left (count 1). The vehicle was later seized by the police when the appellant was arrested on 27 July 2005.

14 Investigations later revealed that the recorded birth certificate no 206004/1971 C is in the name of Brenan Rodgers (count 4) and that the applicant had never held a New South Wales driver's licence (count 3). The two rate notices produced by him related to a different property and the name and address of the owner had been changed (count 2). The copy licence referred to in count 3 was also used in the commission of the offences in counts 1, 14, 15 and 16. Likewise, the copy birth certificate mentioned in count 4 was used in the commission of the offences in counts 1, 11 and 12.

15 On 29 March 2005, the appellant made contact with the LJ Hooker Real Estate Agency of Lakes Entrance. Again, he introduced himself as Brenan Marciano to salesman, Clinton Daniel, and was shown a property which he rejected as being too expensive. He then asked to inspect another in Lake Bunga. The appellant made an initial offer on this property of $380,000 that was declined by the vendor. After some further negotiation, he increased his offer to $395,000 and this was later accepted. The contract was conditional upon him obtaining finance approval of not less than $320,000 by 4 May 2005 and the provision of a deposit ($39,500) also payable by that date. The deposit was to include an immediate payment of $1,000. However this was never made. The salesman referred the appellant to Geoffrey Smith, a home loan consultant from LJ Hooker at Frankston.

16 On 12 April 2005 Mr Smith spoke with the appellant who said that he required a loan of about $410,000. With respect to his financial position, he asserted that he owned a property with his sister valued at $380,000 and that he had about $38,000 deposited with the National Bank. He claimed he had been in his current employment for two-and-a-half months and had worked in the mining industry for the previous four-and-a-half years. They arranged to meet at a café in St Kilda, on 15 April, and Mr Smith told the appellant to bring all necessary documentation required for the preparation of a formal application, including a birth certificate, driver's licence, pay slips, group certificates and evidence of the source of the deposit.

17 This meeting was held as arranged but the appellant failed to bring the documentation requested. Due to the distance between Lakes Entrance and Frankston, the consultant decided to commence the process to secure a loan from the ANZ Bank from information supplied by the appellant, who filled in part of the application form himself before signing it on numerous pages including the various declarations. This form contained some pages that were left blank and were to be filled out later when the appellant supplied the required information.

18 During the meeting, the appellant was given another blank ANZ Bank finance application form as he claimed he owned a property with his sister in Gooch Road, Stratford and he was unsure whether she was going to buy his share from him, whether she would give him $100,000 or use $100,000 of equity from this property.

19 Mr Smith subsequently spoke with him on a number of occasions, trying to secure the additional details required in order to complete the application. He did supply some further information and claimed that he had $100,000 to contribute. Mr Smith then determined that the appellant needed a loan of $315,467.

20 On 24 April 2005, Mr Smith received an email from the appellant with an image of a New South Wales issued driver's licence no 303354FD in the name of Brenan Marciano with the appellant's photograph on it as proof of identification.

21 On 30 April 2005 he received the second ANZ application for finance from the appellant in the mail. This was only partially completed, but contained a declaration, dated 29 April 2005, that had been purportedly signed by Brenan Marciano and a 'D Fisher' (count 5).

22 On 17 May 2005, Mr Smith received another email from the appellant to which was attached Heritage On Line Building Society bank statement in the name of Brenan Marciano c/- La Rival Restaurant in Paris. It was dated 7 May 2005 and listed monies in his various accounts, including $56,192.61 in a 'living equity' account and $123,923.81 in a secure trust (counts 7 and 8).

23 Also on this date Mr Smith received a copy of a New South Wales birth certificate no 206004/1971 C in the name of Brenan Marciano as additional proof of identity.

24 Despite several requests by Mr Smith, the appellant was, of course, unable to produce proof of employment, including pay slips.

25 After several extensions, the contract was rescinded on 15 May 2005. The appellant kept in contact with both Mr Daniel and Mr Smith claiming that he still wanted to purchase the property and, on 26 May 2005, a second contract was signed by him and settlement was to take place on 20 July 2005. Under this arrangement, which contained no provision with respect to finance, the appellant was to pay a deposit of $79,000. This contract was rescinded on 29 June 2005.

26 Investigations later revealed that the appellant's sister did not sign the second application for finance, that the appellant has never held an account with Heritage Building Society and, as earlier mentioned, he has never held a New South Wales driver's licence nor has a birth certificate been issued in the name of Brenan Marciano.

27 On 13 March 2005, the appellant attended at Avis Rent-a-Car depot in Sale where he introduced himself to staff as Brenan Marciano. He rented a Holden Commodore sedan using his sister's credit card and this vehicle was later returned on or about 8 May 2005. When it was first hired by the appellant, the car contained a Melbourne Street Directory valued at $50. Police located this street directory in the Monaro earlier mentioned, on 27 July 2005, just after his arrest (count 9).

28 The appellant's brother-in-law kept some of his personal documents in a walk-in-robe in the house at Stratford. They included his passport, International certificate of vaccination, his Gold Coast Access Authority, a permit to enter Aboriginal Lands, a Republic of Nigeria Alien Certificate, a Lloyd Aviation Identification pass and two expired New South Wales driver's licences. He saw these documents in February 2005, but noticed that his passport was missing on 2 July 2005.

29 The Lloyd Aviation Identification pass and the two driver's licences were found in the appellant's wallet at the time of his arrest, on 27 July 2005. The passport, Gold Coast Airport Access Authority and International Certificate of Vaccination were later located in a crate in a unit he was renting at Pinnacle Valley near Merrjig, on 9 July 2005. The permit to enter Aboriginal Lands and the Republic of Nigeria Alien Certificate were recovered from the appellant's unit in Orme Street, Lakes Entrance (count 23).

30 On 26 May 2005, the appellant, driving the Monaro, attended at Lakes Tyrepower and Exhaust Centre in Lakes Entrance. He introduced himself as Brenan Marciano and said that he wanted wheels and tyres for his new car. He selected four Enkei brand RP03 19 x 8.5 inch wheels and four Pirelli 245 35R Dragon tyres and was quoted $5,180 for fitting and installation. The appellant agreed on the price and applied for finance through GE Finance. He filled out the application form[1] in the name of Brenan Marciano, claiming that he had total assets of $385,000 and signed it as true and correct.

31 The application was initially approved by GE Finance and the wheels and tyres were fitted to the vehicle. The old wheels and tyres were removed and taken, at his request, to the house of a friend for storage.

32 GE Finance subsequently declined to provide the finance resulting in a loss to Lakes Tyrepower and Exhaust of $5,180. When the Monaro was seized by police on 27 July 2005 the wheels and tyres were still fitted to the car (count 10).

33 On 29 March 2005, the appellant using the name of Brenan Marciano of premises in Marine Parade, Lakes Entrance contacted Radio Rentals in Traralgon indicating that he wanted to hire a wide screen CTV and DVD home theatre system.[2] He agreed to the terms and conditions of the rental ($141.81 per month for 18 months) and provided details of a Bendigo Bank account for monthly payments. Investigations later revealed this account to be owned by the appellant's sister who did not give him permission to use it. The total sum involved was $2,541.24.

34 On 31 March 2005, a 66 cm LG flat screen CTV and Panasonic mini-stereo was taken to Lakes Entrance, but the Radio Rentals personnel found that the address the appellant supplied in Marine Parade did not exist. They contacted him and he said that there had been a mistake and directed them to the Orme Street unit where they delivered the goods.

35 The appellant later told a friend, Stacey Miller, that he owned these items and requested that Ms Miller and her mother transport them to Merrjig. They did so. On 8 September 2005, Ms Miller handed them to police (count 11).

36 On 24 March 2005, the appellant using the name Brenan Marciano, attended at a business trading as Leading Edge Computers in Bairnsdale. He indicated that he was interested in leasing a Toshiba G20 lap top computer valued at $5,999. The business was an agent for a company, Technology Leasing, to which the appellant was referred.[3] Finance was approved and the appellant agreed to make monthly lease payments for 36 months.

37 The company encountered difficulty in securing the particular model requested and finally took delivery of one, on 27 April 2005, which was then given to him. Police located this computer at the Novotel Hotel in Melbourne after his arrest (count 12).

38 On 23 May 2005, the appellant went to another business, Furniture Centrepoint, in Lakes Entrance seeking to lease an Acer brand lap top computer valued at $1,299. This company was also an agent for Technology Leasing which approved the finance, after speaking to the appellant, and a variation to the lease agreement mentioned above was then signed by him in the name of Brenan Marciano. The new amount to be paid each month was $331.20 which was without his sister's knowledge debited to her Visa card.

39 The appellant subsequently gave the Acer brand lap top to Stacey Miller and it has since been returned to Technology Leasing by police. The Toshiba brand computer was seized by police on 27 July 2005 (count 13).

40 On 2 March 2005 the appellant contacted the Telstra shop-on-line and ordered a Sumsung E800 mobile phone valued at $890.91 that was later sent to the Orme Street unit and billed to his sister's credit card. He later gave this phone to a friend as a present (count 14).

41 On 11 April 2005, the appellant attended at Furniture Centrepoint in Lakes Entrance and ordered a Motorola V810 mobile phone valued at $678. He produced the false New South Wales driver's licence as identification and agreed to a $40 per month plan for 24 months. This phone has since been recovered by police (count 15).

42 On 18 April 2005, he again attended at Furniture Centrepoint in Lakes Entrance and ordered a Samsung E310 phone valued at $606.88. Once again, he produced the New South Wales driver's licence of Brenan Marciano before he signed a $30 per month contract for 24 months (count 16). The appellant left the store with the phone and later sold it to a man named Adam Guillot for $180 (count 17).

43 On 27 April 2005, the appellant attended at the Telstra shop in Bairnsdale and ordered a Motorola V620 mobile phone valued at $856.08. He produced the same copy of a New South Wales driver's licence for identification and signed a $60 per month contract for 24 months in the name of Brenan Marciano (count 18). He left the store with the phone and later sold it to Stacey Miller for $700 (count 19).

44 Adam Guillot and Stacey Miller have both stated that they believed the transactions were legitimate, as the appellant told them that he could secure cheap mobile phones through a friend.

45 On 18 April 2005, the appellant contacted Ceccanti Kiewa Valley Wines near Mount Beauty, introducing himself as Brenan Marciano. He said he was the second chef at Bellevue at Lakes Entrance and that he had tasted their wines and placed an order for five boxes valued at $713.33. The appellant wanted the invoice sent to Bellevue Food Services and the wine was dispatched on or about 26 April 2005 (count 20). Police recovered 44 bottles in the Orme Street premises which have since been returned to the winery. He told various persons that the wine was a present from a friend.

46 Between 19 and 30 March 2005, the appellant went to another business, House and Giftware, in Bairnsdale on at least three occasions and purchased kitchen equipment valued at over $400 using his sister's credit card. He explained that he was in charge of the kitchen at the Bellevue and shortly afterwards asked whether he could open an account with them in the name of Bellevue Food Services but with all the invoices being directed to an address in Orme Street, Lakes Entrance. Believing they were supplying goods to the Quality Inn Bellevue they provided goods on four occasions, between 13 April 2005 and 20 May 2005, to the value of $2,213.10 (count 21).

47 On or about 12 May 2005, the appellant went to a Foodworks supermarket in Lakes Entrance and introduced himself as Brenan Marciano. He said that he was leasing the kitchen at the Bellevue and wanted to open an account with them. The account was set up in the name of Marciano Brenan Bluisys Pty Ltd and it was arranged that the invoices were to be sent to his Orme Street home address. Between 19 May 2005 and 16 June 2005, the Foodworks supplied him with groceries and other items to the value of $1,422.88 (count 22).

48 Belview Food Services and Marciano Brenan Bluisys Pty Ltd are fictitious entities and the accounts have never been paid. The House and Giftware items were used in the kitchen at the Bellevue, but the appellant took them with him when he left his employment.

49 With respect to the appellant's personal background, the sentencing judge proceeded on the basis of the history set out in a psychiatric report tendered by his counsel -**

The history relates that you had an uneventful childhood and upbringing and completed your education in Year 12 in New South Wales. It is said that following the death of your paternal grandfather to whom you were particularly close, and that of your fiancée, who died from complications related to the condition of anorexia nervosa, that you descended into substance abuse and had, at least until recently, what was said to be a substantial amphetamine dependency.

Further, you have in the past also experimented with steroids associated with body building, a factor no doubt associated with the image of yourself you wish to project. That image, it is also said, accounts for the extravagant lifestyle you sought to project and is intimately related to the deceits that you have practiced so extensively.

Dr Adrian Deakin, who provided that psychiatric report, opined inter alia, that there was no suggestion that you suffered any major psychiatric disturbance which would account for your criminal behaviour. His view is that your criminal behaviour is directly related to your drug habits. He also observed that you showed limited remorse for your behaviour and did not express any particular empathy for the victims of your crimes.[4]

**50 Counsel for the Crown stated at the outset of the proceeding that it was accepted that the sentencing judge fell into error in that he provided no adequate indication of the basis upon which the aggregate sentence imposed by him had been reached and that, accordingly, the exercise of sentencing discretion should be regarded as re-opened.

51 The proper approach to be adopted by a judge considering the imposition of an aggregate sentence was the subject of attention by this Court in DPP v Felton[5] where Kellam JA,[6] after reviewing a number of relevant authorities and the statutory regimes applicable to Commonwealth offences and in other Australian jurisdictions, stated with respect to the Victorian position that -**

... if an aggregate sentence is under consideration it is necessary for the sentencing judge to identify, in accordance with the above principles, separate events giving rise to specific counts, or groups of counts and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent. ...[7]

**52 The sentencing judge in the present case did not deal with the matter in this way.[8] However I would also point out that he handed down sentence in this matter prior to the delivery of judgment in DPP v Felton and only shortly after the statutory provision empowering a judge to impose an aggregate sentence came into operation.[9]

53 For completeness, I would add that the complaint that his Honour further fell into error in including counts 3 and 4 in an aggregate sentence lacks substance. Whilst the behaviours encompassed by them were also employed in the commission of other offences, it is, I think, clear that the particular counts related to the offence involved in count 1 only.**

**54 With respect to the re-sentencing of the appellant, it was submitted by his counsel that there were a number of features militating in favour of mitigation of penalty in this case including -

(a) what he contended were the relatively small amounts of the deceptions, where effected.

(b) the fact that most of the property obtained or leased was recovered.

(c) the lack of sophistication involved and that detection was virtually inevitable which, it was said, leads to the inference that the reasoning of the appellant was, at least, confused and indicative of the presence of underlying psychological problems relevant to the assessment of his level of culpability.

(e) the consideration that the appellant was serving his sentence in protective custody.

(f) the possibility that the appellant may be required to serve an additional period of incarceration for breaching an earlier New South Wales Parole Order.

(g) that he had been sentenced in December 2006 in the Magistrates' Court in Victoria to an 18 month term of imprisonment, which incorporates the period to be served under the restored Intensive Corrections Order.

(h) the appellant's endeavours directed to his rehabilitation during the period of his detention both before and after the imposition of sentence upon him.**

(i) the period of time that had elapsed since the commission of the offences.

**55 In response, counsel for the respondent submitted that it must be borne in mind that -

1. The appellant fell to be sentenced on 21 separate counts, the offence involved in each of which carried a maximum penalty of ten years' imprisonment.

2. He had engaged in an extensive course of fraudulent conduct as a consequence of which he secured a large amount of property from a number of separate victims, albeit a deal was recovered.

3. He created and used false documents, the name of a business which was very similar to that of the business that had employed him for some months. He could be seen to blatantly disregard the rights of other persons and even stole from his own sister.

4. The offences were committed not only against the background of 18 prior convictions for the offence of obtaining property by deception and others for offences of dishonesty but that the appellant had served a number of terms of imprisonment for conduct of a similar kind to that involved here. It must also be borne in mind, it was submitted that the offending continued within a few weeks of his release from custody on an Intensive Corrections Order.

56 In these circumstances, the argument proceeded, much weight should be attributed to the sentencing objectives of specific deterrence and punishment and recognizing that the Court could have little confidence in the appellant's prospects of rehabilitation.

57 Finally, counsel for the Crown pointed out that the appellant was remanded into custody in August 2005. The plea hearing was conducted on 21 November 2006 and sentence was imposed on 11 December 2006. The length of period involved was not such as to constitute a mitigating factor, he submitted.

58 It is, I think, evident from his Honour's sentencing remarks that he directed his mind to each of the matters to which attention was directed in this proceeding. He referred specifically to the period of pre-sentence detention that the appellant had undergone, the fact that there were outstanding matters in Victoria and elsewhere,[10] the circumstance that the appellant would have to serve the sentence in protective custody and the principles of proportionality and totality. His Honour continued -**

[Counsel] also submitted that your pleas of guilty to these offences, even at a late stage, had saved the community and the victims a great deal. That is no doubt true but it is difficult to see in the end what possible defences you might have had to any of these charges. It must also be said that you have been a con man of the first order. You have been, and I think still may be, a menace to society. The alacrity with which you re-offended after your release in February 2005 leaves me with a real apprehension as to your future conduct and your determination to alter your attitude to life, and if that falters then the community might well need to beware.[11]

59 With respect to the imposition of an aggregate sentence, his Honour stated:

Sentencing you is a difficult task, not least because of the depth and variety of your offences or the circumstances giving rise to them. This court recently has been given the power to impose aggregate sentences, a power previously only available in the Magistrates' Court. It is, if belatedly, a welcome addition to the court sentencing options. Amongst other things, it minimises the need to - or the requirements where multiple offences are involved, to cumulate and moderate where there are, as I say, a large number of offences. Nevertheless the usual and proper principles of sentencing need apply and I take them into account in sentencing you. It might be said that this then is an application of the "instinctive synthesis" approach to sentencing. In your case, as I have said, I regard it as a proper approach to sentencing you on these many offences. I acknowledge that some offences are less serious than others when taken individually. Those less serious offences, however, are a pattern of deception which you practiced over a relatively short period of time. They can, however, be made part of an aggregation of these sentences so as to produce one easily understood result.[12]

**60 The problem, of course, is that by reason of the obscurity inherent in an aggregate sentence, the result is not, in such a complicated situation, easily understood in the sense that the various components of the sentence can be identified and the reasoning processes relating to the individual sentences or orders for cumulation ascertainable. However, and undoubtedly the product of his years of experience in this jurisdiction, the total effective period of imprisonment imposed by his Honour is, in my opinion, entirely appropriate. I have reached the same conclusion but through the fixing of sentences for the separate offences intended to reflect the relative seriousness in all the circumstances, including the matters to be taken into account in mitigation of penalty and the making of consequent orders for concurrency and cumulation designed to create what I regard as an appropriate effective sentence.

61 It is evident from his Honour's comments that he was mindful of the need to apply 'the usual and proper principles of sentencing' and I have little doubt that, in a general sense at least, the reasoning employed by him in the determination of the effective sentence was consistent with this application. More likely than not, his Honour regarded the use of the new power to hand down an aggregate sentence as simplifying the judge's task by removing the need to engage in an overly complex mechanical process of imposing separate sentences for a large number of offences, and then making orders for partial concurrency or cumulation to achieve an appropriate total effective sentence. There will be occasions on which this can be done as Redlich JA made clear in R v Grossi,[13] but only in cases where the transparency of the sentencing process is not compromised. His Honour there pointed out that -**

... an aggregate sentence will not necessarily be appropriate where the presentment contains ... counts which vary significantly in their seriousness or the manner in which the offences were committed.

That is the position in this case and, accordingly, that course has not been adopted.

On each of counts 9 and 23 - one month imprisonment

On each of counts 10, 11 and 12 - nine months' imprisonment

I would direct that three months of the sentence imposed on each of counts 2, 3, 4, 5, 7 and 8, three months of each of the sentences imposed on counts 10 and 12 and two months of the sentence imposed upon counts 11, 13 14, 15, 16, 17, 18, 21 and 22 are to be served cumulatively upon each other and upon the sentence imposed on count 1.

63 This creates a total effective sentence of five years in respect of which I would fix a non-parole period of three years.

64 For the reasons given by Vincent JA, I agree that the appeal should be allowed and the appellant should be re-sentenced as his Honour proposes.

**65 For the reasons given by Vincent JA the appeal should be allowed and the appellant should be re-sentenced as his Honour proposes.

[1] During the loan application process, the appellant produced a copy of a New South Wales driver's licence in the name of Brenan Marciano with his photograph on it which was used for identification.

[2] He claimed that he had owned a property in Gooch Road, Stratford, for five years and that he held a New South Wales driver's licence no 303254FD.

[3] He spoke with staff from Technology Leasing on the telephone. In this conversation the appellant claimed that he had owned premises in Gooch Road, Stratford, for the last five years and had been employed as an IT engineer at the Quality Inn Bellevue for the previous three months. He claimed prior to taking up that position he had worked as an engineer with a mining company for five years.

[5] [2007] VSCA 65.

[6] With whom Buchanan and Eames JJA agreed.

[7] [2007] VSCA 65, [46].

[8] See the extract of his sentencing remarks set out in [20].

[9] Section 9 of the Sentencing Act 1991 (Vic) was amended by s 38 of the Courts Legislation (Jurisdiction) Act 2006, Act No 50/2006. This section came into effect on 16 August 2006.

[10] In this respect, the sentencing judge was overly generous to the appellant. See R v Piacentino and Ahmad [2007] VSCA 49; (2007) 15 VR 501; and R v Alashkar and Tayar [2007] VSCA 182.

[13] [2007] VSCA 51, [39].