Graeme Ronald Hoy v The Queen - [2016] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0221

GRAEME RONALD HOY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP and KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2016
DATE OF ORDERS:	12 April 2016
DATE OF REASONS:	19 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 75
JUDGMENT APPEALED FROM:	[2011] VSC 95 (T Forrest J)

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CRIMINAL LAW – Conviction – Application for extension of time to file application for leave to appeal against conviction – Over four and a half years’ delay - Total of 47 charges comprising obtaining financial advantage by deception, obtaining property by deception, carrying on financial services business without licence, dishonest conduct in carrying on financial services business, dishonestly making improper use of position of director with intent to gain advantage – ‘Ponzi scheme’ - Nearly $16m dishonestly procured from investors – Nearly $6m dishonestly procured from financial institution - Guilty plea – Whether applicant overborne – Whether applicant appreciated nature of guilty plea – Whether applicant’s alleged hope that investors would be repaid relevant – Application refused.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Crown	Ms K Breckweg	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

WEINBERG AP
KYROU JA:

On 12 April 2016 the Court made orders refusing the applicant, Graeme Ronald Hoy, an extension of time within which to file an application for leave to appeal against conviction. We said that we would publish reasons at a later time. These are those reasons.

Background

In March 2011, the applicant pleaded guilty, before T Forrest J in the Trial Division, to a total of 47 charges. Forty four of these charges involved State offences, pursuant to the Crimes Act 1958, and three charges involved Commonwealth offences contrary to various provisions of the Corporations Act 2001 (Cth).

Breaking the charges down, there were 34 of obtaining financial advantage by deception under s 82(1) of the Crimes Act 1958, and 10 of obtaining property by deception under s 81(1) of that Act. Most of the State charges were characterised as Continuing Criminal Enterprise offences for the purposes of Part 2B of the Sentencing Act 1991. Accordingly, the maximum term of imprisonment that could be imposed in relation to any one of those charges was 20 years, twice that ordinarily prescribed for offences of that nature. Fifteen of the State charges were ‘rolled up’, involving more than one dishonest receipt of money, with the offending being expressed as having occurred between nominated dates.

The sentencing judge was provided with an agreed statement of facts. It was made crystal clear, on the plea, that the applicant took no issue with any of the facts set out in that statement.

The applicant committed these offences through the auspices of a company, Chartwell Enterprises Pty Ltd (‘Chartwell’), of which he held a half share through his family company, Black Swan Pty Ltd. The applicant was the sole director of Chartwell.

His Honour summarised the nature 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.

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Details

Case: [2016] VSCA 75
Decision Date: 19 April 2016

CaseChat Overview and Summary

Graeme Ronald Hoy has applied for an extension of time to file an application for leave to appeal against his conviction, following his guilty plea to a total of 47 charges of obtaining financial advantage by deception, obtaining property by deception, carrying on a financial services business without a licence, dishonest conduct in carrying on a financial services business, and dishonestly making improper use of his position as a director with intent to gain an advantage. The charges relate to his involvement in a Ponzi scheme, through which he dishonestly procured nearly $16 million from investors and nearly $6 million from a financial institution. The application was heard by the High Court of Australia, which was required to decide whether the significant delay in filing the application was justified and whether Hoy was overborne or did not fully appreciate the nature of the guilty plea.

The court examined the substantial delay in filing the application for leave to appeal and whether it was reasonable in all the circumstances. The court also considered whether Hoy was overborne or did not appreciate the full implications of the guilty plea, including the applicant's hope that investors would be repaid. The court found that the delay was excessive and unreasonable, and that the applicant had not demonstrated any circumstances that would justify the delay. Furthermore, the court was satisfied that Hoy appreciated the nature of the guilty plea and the consequences of his actions.

In light of the findings, the court refused the application for an extension of time to file an application for leave to appeal against the conviction. The court emphasised the importance of timely filing of applications for leave to appeal and the need for applicants to demonstrate exceptional circumstances to justify a delay. The court also noted that the hope of repaying investors did not diminish the gravity of Hoy's conduct or the need for the appeal process to proceed in a timely manner. The application was dismissed, and Hoy's conviction stands.

Orders