Manolas v The Queen - [2018] NTCCA 12

CITATION:Manolas v The Queen [2018] NTCCA 12

PARTIES: MANOLAS, George Theo

v
THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:CA 3 of 2018
(21653294, 21627328 & 21713598)

DELIVERED:  10 July 2018
HEARING DATE:  29 May 2018
JUDGMENT OF:  Kelly, Blokland JJ and Graham AJ
CATCHWORDS:
APPEAL – Appeal against conviction – whether trial judge erred in direction
given to jury regarding intention to deprive – test to be applied in respect of
“regardless of the rights of the owners” – distinguishing rights and interests – no
importation of additional mental element – Crown not required to prove that accused
had no subjective regard to the interests of the owner – extended definition of
depriving describes necessary intention – appeal dismissed.
APPEAL – Appeal against conviction – whether trial judge erred in direction given to
jury regarding intention to deprive – reference in directions to “due and appropriate
regard” – entitlement of director managing company to be in control and possession
of company property distinguished from an outsider – in the circumstances the right
infringed was the company’s right to have its property applied for the company’s
purposes – reference to “due and appropriate regard” instructive in the circumstances
of the case – appeal dismissed.
APPEAL – Appeal against sentence – whether sentencing proceedings miscarried by
failure to determine basis on which the applicant intended to deprive the owner of the
property intention to permanently deprive or a deemed intention to deprive within the
extended definition – intention shifting over time – assessment of moral culpability by
reference to evidence – appeal dismissed.
APPEAL – Whether sentence manifestly excessive – principles applicable – appeal
dismissed.
CRIMINAL LAW – Stealing – intention to deprive – extended definition of depriving
– intention of the person appropriating property to treat the property as his own to
dispose of regardless of the rights of the person to whom it belongs – director
managing company’s business lent company property to another company for his own
purposes regardless of the rights of the company to have its property applied for its
own purposes – appeal dismissed.
SENTENCING – Director in position of trust – company monies transferred to another
company in debt – general approach to sentencing for offences involving breach of
trust – degree of trust – amount misappropriated – effect of offending – expectation of
imprisonment – appeal dismissed.
Criminal Code 1983 (NT) ss 209(1), 210(1)

R v Barry (Unreported, Supreme Court of the Northern Territory, Kelly J, 9 June 2017), R v Bird (1988) 56 NTR 17, R v Fernandes [1996] 1 Cr App R 175, R v Rice (Unreported, Court of Criminal Appeal (NSW), 28 July 1978), The Queen v Gregurke [2014] NTCCA 11, applied.
REPRESENTATION:
Counsel:
Appellant:S Odgers SC
Respondent:  D Morters
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number 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 Manolas v The Queen

Details

AGLC: Manolas v The Queen [2018] NTCCA 12
Case: [2018] NTCCA 12
Decision Date: 10 July 2018

CaseChat Overview and Summary

Manolas appealed his conviction to the Court of Criminal Appeal of South Australia. The appeal concerned the interpretation of the mental element required for the offence of dishonestly taking or using property belonging to another with the intention of permanently depriving the other of it. Specifically, the appellant argued that the trial judge's directions to the jury regarding the intention to deprive were erroneous.

The central legal issue before the Court was the correct test to be applied when assessing whether an accused intended to permanently deprive another of property, particularly in relation to the phrase "regardless of the rights of the owners." The Court was required to determine whether the Crown needed to prove that the accused had no subjective regard for the owner's interests, or if the statutory definition of "depriving" sufficiently captured the necessary intention. The Court also considered whether the trial judge's reference to "due and appropriate regard" in the directions was appropriate and whether the entitlement of a director to control company property differed from that of an outsider.

The Court held that the statutory definition of "depriving" already encompasses the necessary intention, and there was no requirement to import an additional mental element. The phrase "regardless of the rights of the owners" does not necessitate proof that the accused had no subjective regard for the owner's interests. Instead, the extended definition of depriving, as provided by the relevant legislation, sufficiently describes the necessary intention. The Court distinguished the position of a director managing company property from that of an outsider, noting that a director is entitled to be in control and possession. The appeal was dismissed.

Orders