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Nicholls v The Queen

Nicholls v The Queen

Case [2016] VSCA 300 30 November 2016

Appeal

Sentence

Manifestly Excessive Sentence

Guilty Plea

Rehabilitation

Criminal Law

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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…

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 Nicholls v The Queen

Details

AGLC: Nicholls v The Queen [2016] VSCA 300
Case: [2016] VSCA 300
Decision Date: 30 November 2016

CaseChat Overview and Summary

The case of Nicholls v The Queen involved the appellant, who had pleaded guilty to three counts of dishonestly using his position as a director with the intention of gaining an advantage. The appellant was sentenced to a total effective sentence of 4 years and 6 months, with release ordered after serving 3 years under section 20(1)(b) of the Crimes Act 1914 (Cth). The appellant was also required to enter into a recognizance of $2000, and to be of good behaviour for 18 months. The appellant appealed against the severity of the sentence, arguing that it was manifestly excessive in light of his guilty plea, his age, good prospects of rehabilitation, and the delay in sentencing. The appeal was heard by the court.

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