Hicks v The Queen - [2016] VSCA 162

SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0081

DAVID HICKS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 July 2016
DATE OF JUDGMENT:	13 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 162
JUDGMENT APPEALED FROM:	DPP v Hicks [2015] VCC 1760 (Judge Lewitan)

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CRIMINAL LAW – Appeal – Obtaining financial advantage by deception (five charges) – Three victims – Sum of $595,000 – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Delay in finalising contested charges – Age and ill-health of appellant – Sentence manifestly excessive – Appeal allowed – Re-sentenced to total effective sentence of 4 years and 6 months’ imprisonment with non-parole period of 2 years and 6 months.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr T Kassimatis

PICA Criminal Lawyers

For the Respondent

Mr D Trapnell QC

Mr John Cain, Solicitor

for Public Prosecutions

PRIEST JA:
Introduction

Pursuant to leave that I granted on 16 March 2016, the appellant appeals against a total effective sentence of six years’ imprisonment, upon which the sentencing judge fixed a non-parole period of four years.

Following a trial in the County Court, a jury convicted the appellant of five charges of obtaining a financial advantage by deception.[1]
[1]Crimes Act 1958, s 82.

On 11 December 2015, the trial judge sentenced the appellant to be imprisoned for four years on charge 5; for three years on charge 1; for two years on charge 4; and for 12 months on each of charges 2 and 3. Orders for partial cumulation produced a total effective sentence of six years’ imprisonment, upon which the judge fixed a non-parole period of four years.[2] Although the maximum sentence for the offence ordinarily is 10 years’ imprisonment, by virtue of Part 2B of the Sentencing Act 1991, the appellant fell to be sentenced as a ‘continuing criminal enterprise offender’ on charges 1, 3, 4 and 5, so that the notional maximum penalty of those charges was imprisonment for 20 years.[3]
[2]The judge also made a forensic sample order pursuant to s 464ZF of the Crimes Act 1958; and, pursuant to s 86 of the Sentencing Act 1991, made the following orders for compensation:
(a) $193,653 to Rochelle England;
(b) $299,556.50 to Trevene Mattox; and
(c) $100,000 to Neena Scott.
[3]By virtue of Schedule 1A of the Sentencing Act 1991, an offence of obtaining financial advantage by deception is a continuing criminal enterprise offence ‘where the value of the financial advantage obtained is $50 000 or more’. The financial advantage on charge 2 was $45,000.

The appellant relies on two grounds as follows:

1. The sentencing discretion miscarried as a result of the Judge’s having failed properly to have regard to the delay between the commencement of the [appellant’s] proceedings and the date of sentence. In particular, the sentencing Judge erred by:
(a) eroding the significance of delay in the [appellant’s] sentence because ‘part…

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 Hicks v The Queen

Details

AGLC: Hicks v The Queen [2016] VSCA 162
Case: [2016] VSCA 162
Decision Date: 13 July 2016

CaseChat Overview and Summary

The appellant, Hicks, was convicted on five counts of obtaining financial advantage by deception, involving a total of $595,000 from three victims. Hicks appealed the sentence of 6 years’ imprisonment, with a non-parole period of 4 years, arguing it was manifestly excessive. The appeal centred on the severity of the sentence given the nature of the crimes and the appellant's personal circumstances. Hicks argued that the lengthy delay in finalising the contested charges, his advanced age, and poor health warranted a reduction in the sentence.

The court had to determine whether the original sentence was manifestly excessive and whether the personal circumstances of the appellant warranted a lesser penalty. The appeal hinged on the principle that a sentence should not only reflect the gravity of the offence but also consider the individual circumstances of the offender. The court acknowledged the significant delay in the proceedings and Hicks' age and health issues as mitigating factors. These factors, combined with the absence of any aggravating circumstances, led the court to reassess the proportionality of the original sentence.

In light of the mitigating factors, the court concluded that the original sentence was indeed manifestly excessive. The appeal was allowed, and Hicks was re-sentenced to a total effective sentence of 4 years and 6 months’ imprisonment, with a non-parole period of 2 years and 6 months. The court emphasised that the revised sentence was commensurate with the gravity of the offences while appropriately reflecting the appellant's personal circumstances.

Orders