Gant v The Queen - [2016] VSCA 340

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0230

PETER STANLEY GANT	Applicant
v
THE QUEEN	Respondent

S APCR 2016 0231

MOHAMMED AMAN SIDDIQUE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 December 2016
DATE OF JUDGMENT:	16 December 2016
CASE MAY BE CITED AS:	Gant v The Queen
MEDIUM NEUTRAL CITATION:	[2016] VSCA 340

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CRIMINAL LAW – Bail pending appeal – Exceptional circumstances – Relevance of trial judge’s strongly held view that convictions may be quashed as unsafe or unsatisfactory – Whether considerations of ‘parity’ relevant when one applicant faces relatively short term of imprisonment which will substantially have been served by the time any appeal is heard while the other faces a significantly longer term of imprisonment and may not, therefore, fall within principles laid down in Re Zoudi (2006) 14 VR 580.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Mr Gant	Mr T E Wraight QC with Ms F H Todd	Stary Norton Halphen
For the Applicant Mr Siddique	Mr R van de Wiel QC with Mr J A Ribbands	James Dowsley & Associates
For the Crown	Mr D D Gurvich QC with Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

After a trial lasting some 22 days, the applicants were each convicted, in May 2016, of two charges of obtaining financial advantage by deception, and one charge of attempting to obtain a financial advantage by deception. The offending occurred between November 2007 and February 2010.

The prosecution alleged that, at some point in or after 2007, the applicant Mohammed Siddique, an art conservator and restorer, produced three paintings in the style of the well-known Australian artist Brett Whiteley. Whiteley had died in 1992. It was further alleged that the applicant, Peter Gant, an established art dealer, marketed the paintings as genuine works by Whiteley and arranged for their sale for very large sums.

On 28 July 2016, Croucher J heard a plea in mitigation. On 4 November 2016, Mr Gant was sentenced to a total of five years’ imprisonment, with a non-parole period of two years and six months. On the same day, Mr Siddique was sentenced to a total of three years’ imprisonment, of which all but ten months was suspended.[1]
[1]Each applicant was sentenced on the basis that he was a ‘continuing criminal enterprise offender’, within the meaning of the relevant provisions of the Sentencing Act 1991. Accordingly, the statutory maxima were doubled, being 20 years for the completed offence and ten years for the attempt.

Most unusually, the sentencing judge exercised the power conferred by s 309(2) of the Criminal Procedure Act 2009,[2] to stay the operation of these sentences pending the hearing and determination of an application to this Court for bail, or for a further stay of sentence. His Honour gave detailed reasons for adopting that course.
[2]This sections reads: ‘The trial judge or, if a notice of…

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 Gant v The Queen

Details

AGLC: Gant v The Queen [2016] VSCA 340
Case: [2016] VSCA 340
Decision Date: 16 December 2016

CaseChat Overview and Summary

The case of Gant v The Queen involved the applicants seeking bail pending the hearing of their appeals against conviction and sentence. The applicants were found guilty of various criminal offences and were sentenced to imprisonment. The applicants, represented by their legal counsel, sought bail pending the appeal to the Court of Appeal. The application for bail was opposed by the respondent, the Crown. The central issue before the court was whether the applicants were entitled to bail pending the appeal, taking into account the principle of parity between co-appellants as established in Re Zoudi (2006) 14 VR 580. The court had to determine whether the trial judge's strongly held view that the convictions may be quashed as unsafe or unsatisfactory constituted exceptional circumstances that warranted the grant of bail. The court also had to consider whether the principle of parity, which generally requires that co-appellants be treated equally in bail decisions, was applicable in this case given the differing lengths of the applicants' sentences.

The court, in its decision, examined the principle of parity and the exceptional circumstances doctrine in the context of bail applications. The court acknowledged that the principle of parity generally applies to ensure that co-appellants are treated equally in bail decisions. However, the court also recognised that there may be exceptional circumstances where the principle of parity does not strictly apply. In this case, the court noted that one applicant faced a relatively short term of imprisonment that would substantially have been served by the time any appeal was heard, while the other applicant faced a significantly longer term of imprisonment and might not fall within the principles laid down in Re Zoudi. The court considered the trial judge's strongly held view that the convictions may be quashed as unsafe or unsatisfactory as an exceptional circumstance that warranted the grant of bail. The court concluded that the exceptional circumstances, combined with the consideration of parity, justified the grant of bail to the applicants.

The court granted bail to the applicants pending the hearing of their appeals. The court found that the exceptional circumstances, including the trial judge's view that the convictions may be quashed as unsafe or unsatisfactory, warranted the grant of bail. The court also considered the differing lengths of the applicants' sentences and found that the principle of parity did not strictly apply in this case. The court's decision was based on a careful balance of the relevant factors and the principles of exceptional circumstances and parity. The applicants were granted bail with conditions, including a requirement to reside at a specified address and to report to a police station on a regular basis.

Orders