DPP (Cth) v Hunter; DPP (Cth) v Milner - [2003] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 196 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	v.
TERENCE JOHN HUNTER
TERENCE JOHN HUNTER	No. 197 of 2003
DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
v.
GRAEME JEOFFREY MILNER

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JUDGES:	WINNEKE, A.C.J., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2003
DATE OF JUDGMENT:	24 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 171

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Criminal law – Crown appeal – Corporation offences – Improper use of position as officer of company and seeking subscriptions from public for a prescribed interest without an approved deed - $3.5 million loss to investors and funds dishonestly transferred to companies controlled by respondents – Failure to accumulate sentences producing a manifest inadequate sentence.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R.T. Barry	Solicitor for the Director of Public Prosecutions (C'th)
For the Respondent Hunter	Mr D. Ross, Q.C. with Mr G. Mullaly	Victoria Legal Aid
For the Respondent Milner	Mrs J. Morrish, Q.C. with Ms S. Thomas	Goldsmiths

WINNEKE, A.C.J.:

In 1997 and 1998 Terence Hunter, aged 58, and Graeme Milner, aged 47 (the respondents), two members and devotees of the Apostolic church in Bendigo, conceived and promoted a thoroughly risk-laden scheme by means of which they secured millions of dollars from fellow church members and a wider circle of acquaintances. The moneys were secured through the use of a company called Acts Net Ltd of which each of the respondents was an "officer" within the meaning of the Corporations Law. By means of false representations some 80 investors were induced to part with their money in favour of two separate schemes. In all some $4 million was invested upon promises of short-term returns of 60 to 100 per cent. At all relevant times Hunter was a minister of the Bendigo church and the Chairman of the Board of Ascension College which had been founded by the church and which was in some way intended to benefit from the schemes. Mr Milner was an accountant. He was the bursar of the college and also on its board. Like Hunter, he drew a salary from such funds as the college had. Hunter and Milner had been friends and associates for some 20 years.

The prospective investors were told that their moneys would be placed in "overseas debenture trading programs" which were organised and run by overseas entrepreneurs. No doubt they were lured by promises of large returns; but there is little doubt that their attention was - at least to an extent - engaged by the trust which they placed in the respondents. Many of the investors were people with small assets. So successful was the manner in which the schemes were "floated" to them that many of these investors sold their assets or mortgaged their homes to participate. Their victim impact statements constitute an eloquent testimony to the personal tragedies which they now face.

Following the inevitable collapse of the schemes, which have largely been of benefit only to their overseas promoters, the respondents…

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

Case: [2003] VSCA 171
Decision Date: 24 October 2003

CaseChat Overview and Summary

In these cases, the Director of Public Prosecutions (Cth) appealed against the sentences imposed on Hunter and Milner, officers of companies that had solicited subscriptions from the public for investments in a prescribed interest without having an approved deed. The activities resulted in a $3.5 million loss to investors, with funds being dishonestly transferred to companies controlled by the respondents. The primary legal issue before the court was whether the sentences imposed were manifestly inadequate and whether the court should exercise its discretion to impose concurrent sentences instead of consecutive ones.

The court considered the gravity of the offences, including the substantial loss to investors and the dishonest transfer of funds. It was noted that the sentences imposed, which were concurrent, failed to adequately reflect the seriousness of the crimes committed. The court highlighted that the loss to investors and the misuse of their funds were critical factors that should have been given significant weight in determining the appropriate sentence. The court found that the cumulative effect of the offences warranted a sentence that would effectively deter similar conduct in the future.

Consequently, the court allowed the appeals and ordered that the sentences be consecutive. The reasoning was that the cumulative effect of the crimes necessitated a more severe sentence to ensure adequate deterrence and denunciation. This decision underscored the importance of considering the totality of offences when sentencing individuals involved in complex corporate crimes. The final orders mandated that the sentences imposed on Hunter and Milner be served consecutively, reflecting the court's view that the original sentences were manifestly inadequate.

Orders