Legal Research
Cases
Hoy v The Queen

Hoy v The Queen

Case [2012] VSCA 49 7 March 2012

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0266
GRAEME RONALD HOY	Applicant
v
THE QUEEN	Respondent

---

ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

---

JUDGES:	NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2012
DATE OF JUDGMENT:	7 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 49
JUDGMENT APPEALED FROM:	[2011] VSC 95 (T Forrest J)

---

CRIMINAL LAW – Sentence – Application for extension of time within which to appeal – Principles applicable – Multiple counts of obtaining financial advantage by deception – $16 million stolen from small investors – $6 million stolen from financial institution – Total effective sentence 13 years and nine months’ imprisonment with non-parole period of nine years – Individual sentences of nine years and eight years’ imprisonment imposed on two counts for theft of $3.6 million and $2.15 million from financial institution – Individual sentences exceeded any previously imposed – Whether manifestly excessive – Categories of sentences fixed on basis of amount stolen – Broad-brush approach permissible – Unnecessary to distinguish between institutional victims and individual small investors – Structural objections rejected – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Galbally & O’Bryan
For the Respondent	Mr Sean O’Sullivan (Sol)	Director for Public Prosecutions (Cth)

NETTLE JA:

I invite Redlich JA to deliver the first judgment.

REDLICH JA:

This is the renewal of an application for leave to appeal out of time against a total effective sentence of 13 years and nine months' imprisonment with a non‑parole period of nine years imposed on the applicant upon him pleading guilty to 34 charges of obtaining a financial advantage by deception (s 82(1) Crimes Act 1958), ten charges of obtaining property by deception (s 81(1) Crimes Act 1958), one count of carrying on a financial services business without a licence (s 911A(1) Corporations Act 2001 (Cth)), one count of engaging in dishonest conduct and carrying on a financial service business (s 1041G(1) Corporations Act 2001 (Cth)) and one count of dishonestly making an improper use of his position as a director with intent to gain advantage (s 184(2)(a) Corporations Act 2001).

A summary of the facts is set out in the applicant's written case but that, in my view, inadequately reflects the nature of the applicant's offending. For present purposes it is sufficient to refer to the facts set out in his Honour's sentencing remarks:

Over a period of 15 months the deceptions you practised upon the public garnered Chartwell nearly $16m of investor funds. During that period, and also as a result of your dishonesty, you procured for Chartwell credit from the Commonwealth Bank in the sum of $5.83m. Those figures alone give some indication as to the scale of your dishonest conduct but say little about the lives that you have diminished in the process.
The deception you practised on…

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 Hoy v The Queen

Details

AGLC: Hoy v The Queen [2012] VSCA 49
Case: [2012] VSCA 49
Decision Date: 7 March 2012

CaseChat Overview and Summary

The case of Hoy v The Queen involved the appellant who sought an extension of time to appeal against his sentence. The appellant had been convicted of multiple counts of obtaining financial advantage by deception, having stolen a substantial amount of money from both small investors and a financial institution. The total sum stolen amounted to approximately $16 million from small investors and $6 million from the financial institution. The appellant was sentenced to a total of 13 years and nine months’ imprisonment, with a non-parole period of nine years. For two specific counts of theft from the financial institution, the sentences imposed were nine years and eight years respectively, which were the highest sentences ever imposed for such offences. The appellant argued that these sentences were manifestly excessive and objected to the broad-brush approach taken by the sentencing judge, who fixed categories of sentences based on the amount stolen without distinguishing between institutional and individual victims.

The primary legal issue before the court was whether the sentences imposed by the primary judge were manifestly excessive. The appellant argued that the broad-brush approach used by the sentencing judge, which did not differentiate between institutional and individual victims, was flawed and led to an excessive sentence. The court needed to determine if the sentences were disproportionate given the appellant's criminal conduct and if the failure to distinguish between the types of victims warranted a different outcome. The court also needed to assess if the sentences were within the range of penalties previously imposed for similar offences.

The court found that the broad-brush approach to sentencing, which categorised sentences based on the amount stolen, was permissible in this context. The court rejected the appellant’s argument that the sentences were manifestly excessive. It noted that the sentences imposed were consistent with the appellant’s criminal conduct and the severity of the offences. The court held that it was unnecessary to distinguish between institutional victims and individual small investors when determining the appropriate sentence. The court also dismissed the structural objections raised by the appellant, finding that the sentences were proportionate and did not result in a manifestly excessive penalty. Consequently, the application for an extension of time to appeal was refused.

Orders