SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0007
| ANTHONY JOHN NICHOLLS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and McLEISH JJA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 October 2016 |
| DATE OF JUDGMENT: | 30 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 300 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Nicholls (Unreported, County Court of Victoria, Judge Patrick, 6 November 2015) |
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CRIMINAL LAW – Appeal – Sentence – Dishonest use of position as director with intention of gaining advantage (3 counts) – Guilty plea – Sentenced to total effective sentence of 4 years and 6 months, release ordered under Crimes Act 1914 (Cth) s 20(1)(b) after serving 3 years, by recognizance of $2000, to be of good behaviour for 18 months – Manifest excess – Sentence manifestly excessive in light of guilty plea, applicant’s age, good prospects of rehabilitation and delay in sentencing – R v Donald [2013] NSWCCA 238; DPP (Cth) v Northcote (2014) 99 ACSR 1, considered – Appeal allowed – Resentenced to total effective sentence of 3 years and 6 months with non-parole period of 2 years and 6 months.
CRIMINAL LAW – Appeal – Sentence – Whether judge provided discount for utilitarian benefit of guilty plea – Discount provided in circumstances – DPP (Cth) v Thomas [2016] VSCA 237, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A J Palmer | Stary Norton Halphen |
| For the Crown | Mr D D Gurvich QC | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
REDLICH JA
McLEISH JA
BEALE AJA:
On 7 May 2015 the applicant, who was then aged 63, pleaded guilty to three charges of using his position as a director dishonestly with the intention of gaining an advantage contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) (‘Corporations Act’). Following a plea hearing, he was sentenced on 6 November 2015 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Corporations Act s 184(2)(a) 5 years’ imprisonment or 2000 penalty units 2 years 9 months (commences 6 May 2018) 2 Corporations Act s 184(2)(a) 5 years’ imprisonment or 2000 penalty units 2 years 6 months 9 months (commences 6 February 2017) 3 Corporations Act s 184(2)(a) 5 years’ imprisonment or 2000 penalty units 3 years Base (commences 6 November 2015) Total Effective Sentence: 4 years 6 months Pre-sentence Detention Declared: 134 days 6AAA Statement: 6 years with a non-parole period of 4 years Other orders: Release ordered under s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 3 years, by recognizance of $2000, to comply with the condition to be of good behaviour for 18 months. Circumstances of the offending
The applicant was a director of Zantholls International Pty Ltd (‘Zantholls’) and Peton Properties Ltd (‘Peton’). Zantholls was his private company. Peton was jointly owned with an associate of the applicant, Peter Gerard Scully. The applicant and Scully used both companies to raise funds from investors in relation to two proposed property developments…
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- AGLC
- Nicholls v The Queen [2016] VSCA 300
- Case
- [2016] VSCA 300
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was too harsh given his guilty plea, age, prospects of rehabilitation, and the delay in sentencing. The court considered the principles set out in R v Donald [2013] NSWCCA 238 and DPP (Cth) v Northcote (2014) 99 ACSR 1, which provide guidance on the appropriate discount to be given for a guilty plea. The court also considered whether the judge had provided a discount for the utilitarian benefit of the guilty plea, as required by DPP (Cth) v Thomas [2016] VSCA 237.
The court found that the sentence was manifestly excessive and allowed the appeal. The court found that the judge had provided a discount for the utilitarian benefit of the guilty plea in the circumstances, as required by DPP (Cth) v Thomas [2016] VSCA 237. However, the court found that the sentence was still too harsh given the appellant's age, prospects of rehabilitation, and the delay in sentencing. The court resentenced the appellant to a total effective sentence of 3 years and 6 months, with a non-parole period of 2 years and 6 months.
The final orders of the court were that the appeal was allowed, and the appellant was resentenced to a total effective sentence of 3 years and 6 months, with a non-parole period of 2 years and 6 months. The appellant was also required to enter into a recognizance of $2000, and to be of good behaviour for 18 months. The court's decision provides guidance on the appropriate discount to be given for a guilty plea and the factors to be considered when determining the severity of a sentence.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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