The Aitchison v The Queen [2015] VSCA 348 (15 December 2015) outlines several ground of appeal. Two of the grounds of appeal (2 and 3) asserted that the learned judge erred by stating that the appellant’s previous good character was not a main consideration in sentencing the appellant and that the judge failed to distinguish between white collar offences committed against the public revenue and individuals. This discussion offers disagreement and agreement with the court’s decision for the second and the third grounds of appeal respectively.

            The second ground, which highlights the erring of the judge in asserting that the previous good character of the appellant was inconsequential in sentencing the appellant is sound and based on law. In R v Hoy [2011] VSC 95, the Supreme Court judge considered the previous good character of Graeme Ronald Hoy in the determination of the case and sentencing. The decision considered whether Ronald Hoy had prior convictions, previous character, and his prospects for rehabilitation. The judge stated that R Hoy had no prior convictions other than minor traffic infringements and observed that he “had been an admirable husband and stepfather”. However, the judge acknowledged that in sentencing white-collar criminals, prior good character is of lesser significance as compared to other types of crime. This shows that while the consideration is important, it does not play an important role in defining the case and the sentencing. Nonetheless, it is not entirely irrelevant because it informs rehabilitation aspects and outlines the possible genuineness of the appellant’s remorse (Slyke, Benson, & Cullen, 2016). As stated in the appeal [Aitchison v R [2015] VSCA 348], the judge cited the prior character of the appellant irrelevant to the case thus limiting its application in informing the aspects of rehabilitation and remorse. That the SC Judge in R v Hoy [2011] VSC 95 stated it is not completely unnecessary shows the need to consider it in determining the appeal case. On this ground, I disagree with the court’s dismissal of the 2^nd ground. 

            Further, the failure to distinguish white-collar offences committed against the public revenue from those committed against individuals highlights the inappropriate application of the principle of proportionality. I agree with the court’s decision to dismiss the third ground. According to Slyke, Benson, and Cullen (2016) and Payne (2013), the principle of proportionality is critical in determining and sentencing white-collar offenders and requires the sentencing to align with the proportionate gravity of the crime. Balancing the harm caused by a crime with pain inflicted by the punishment in fundamental. In asserting that the appellant did not inflict pain indicates the inappropriateness in the application of the principle of proportionality (Slyke, Benson, & Cullen, 2016). However, as indicated in the ruling, while the white-collar crime does not inflict pain and its infinitesimal in comparison to the Government revenue, it affects everybody. Therefore, while the appellant presented it as victimless and painless, it is clear, as noted in the judgment, that the crime affected many parties. Further, as the decision highlights, the appellant’s fraudulent and criminal activity spanned over several years presenting it as deliberate and calculated. Therefore, regardless of whether the crime caused pain and was proportionate to the punishment, it is important to consider the fact that it affected many people and the level of pain it caused was immeasurable (Edney & Bagaric, 2007; Eisinger, 2017). As such, I agree with the court’s decision to dismiss the third ground.

References

Edney, R., & Bagaric, M. (2007). Australian sentencing: principles and practice. Cambridge: Cambridge University Press.

Eisinger, J. (2017). The chickenshit club: why the justice department fails to prosecute executives. Sydney: Simon and Schuster.

Payne, B. K. (2013). White-collar crime: the essentials. Charlesbourg, Québec: Braille Jymico Inc.

Slyke, S. V., Benson, M. L., & Cullen, F. T. (2016). The Oxford handbook of white-collar crime. Sydney: Oxford University Press.

Cases

R v Hoy [2011] VSC 95

Aitchison v R [2015] VSCA 348