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…
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- AGLC
- Hicks v The Queen [2016] VSCA 162
- Case
- [2016] VSCA 162
- Decision Date
CaseChat Overview and Summary
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.
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