R v Gant

Case [2016] VSC 662 4 November 2016

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IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0033 & S CR 2015 0034

Between:

THE QUEEN
And
PETER STANLEY GANT & MOHAMED AMAN SIDDIQUE	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	11-15, 18-22 & 26-29 April & 2-6 & 9-12 May 2016 (trial) 28 & 29 July 2016 (pleas in mitigation) 12 September 2016 (mention) 12 October 2016 (compensation applications and further pleas in mitigation)
DATE OF SENTENCE:	4 November 2016
CASE MAY BE CITED AS:	R v Gant & Siddique
MEDIUM NEUTRAL CITATION:	[2016] VSC 662

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CRIMINAL LAW – Sentences (following trial) for two offences of obtaining, and one of attempting to obtain, financial advantage by deception – Art fraud – Pursuant to agreements from 2007, S created three paintings in style of Brett Whiteley’s Lavender Bay series, which G arranged to sell as if genuine works by artist in 1988 – Blue painting sold for $2.5 million, Orange painting for $1.1 million; Through the Window painting offered for sale for $950,000 but not sold – Purchaser of Orange refunded by art dealer JP; but purchaser of Blue not refunded – Continuing criminal enterprise provisions – G now aged 61; minor criminal history; otherwise previous good character; extra-curial punishment through destruction of career as art dealer; very good prospects of rehabilitation; substantial delay between offending, prosecution and sentence – S now aged nearly 68; no criminal history; previous good character; extra-curial punishment through destruction of career as art conservator; no funds received by him; automatic forfeiture of $1.25 million of lawfully-acquired property; precarious mental health; risk of deportation; very good prospects of rehabilitation; delay – Parity considerations – Sentencing purposes – Current sentencing practices – Parsimony – Totality – Total effective sentence on G of five years’ imprisonment with non-parole period of two years and six months – Total effective sentence on S of three years’ imprisonment with ten months to be served immediately and 26 months suspended for three years – Crimes Act 1958 (Vic), ss 82 & 321P; Sentencing Act 1991 (Vic), ss 5, 6, 6G-6J, 27, 109 & 110; Confiscation Act 1997 (Vic), ss 15 & 30; Migration Act 1958 (Cth), ss 501 & 501CA.

CRIMINAL LAW – Applications for compensation following verdict – AP, purchaser of Blue, lost $2.5 million as a result of the offence – Whether dismissal (by consent) of AP’s civil action in NSW against art dealer AA, who had joined G as cross-defendant, impacts on application – Whether JP, art dealer, who refunded purchaser of Orange, losing $990,000 in consequence, suffered loss of property “as a result of the offence” – Whether any amount of compensation ordered should be apportioned differently between G and S, given G received all funds and S received none – Whether G and S should be made jointly and severally liable – Whether applications raise matters of such complexity as to warrant refusal, leaving applicants to other processes – Applications refused…

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 R v Gant

Details

AGLC: R v Gant [2016] VSC 662
Case: [2016] VSC 662
Decision Date: 4 November 2016

CaseChat Overview and Summary

In the matter of the Crown versus Gant, the Court of Appeal was tasked with addressing the sentences imposed on two individuals, Gant and S, who were convicted for their roles in a sophisticated art fraud scheme. Gant, an art dealer, orchestrated the sale of three paintings created by S in the style of Brett Whiteley’s Lavender Bay series, representing them as genuine Whiteley works from 1988. The Blue painting was sold for $2.5 million, the Orange painting for $1.1 million, while the Through the Window painting was offered for $950,000 but did not sell. The purchaser of the Orange painting was refunded by the art dealer, but the purchaser of the Blue painting was not.

The legal issues before the court encompassed the appropriateness of the sentences handed down for the offences of obtaining and attempting to obtain financial advantage by deception, the applicability of continuing criminal enterprise provisions, and the consideration of parity and sentencing principles. The court also needed to address applications for compensation by the victims of the fraud and applications to stay the sentences pending the determination of proposed appeals against the convictions. The victims sought compensation for their financial losses, while Gant and S applied for stays of their sentences pending appeals against their convictions.

The Court of Appeal meticulously examined the sentencing considerations, including the nature of the offending, the personal circumstances of the offenders, and the potential for rehabilitation. Gant was sentenced to five years’ imprisonment with a non-parole period of two years and six months, while S received a sentence of three years’ imprisonment with ten months to be served immediately and 26 months suspended for three years. The court held that the sentences were appropriate, taking into account the delay in prosecution and the personal circumstances of the offenders. The applications for compensation were refused as the court found that the victims had other means of recourse. The applications to stay the sentences were granted due to the precarious mental health of S and the possibility that the guilty verdicts were unsafe, pending the determination of the appeals.

The final orders of the Court of Appeal were that the sentences imposed on Gant and S be upheld, the applications for compensation dismissed, and the sentences stayed pending the determination of the appeals and applications for bail by the Court of Appeal.

Orders