R v Hoy - [2011] VSC 95

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

CRIMINAL DIVISION

S CR 2010 0047

THE QUEEN

GRAEME RONALD HOY

---

JUDGE:	T FORREST J
WHERE HELD:	Geelong
DATE OF HEARING:	7 March 2011
DATE OF SENTENCE:	23 March 2011
CASE MAY BE CITED AS:	R v Hoy
MEDIUM NEUTRAL CITATION:	[2011] VSC 95

---

CRIMINAL LAW – Sentence – Fraud –Continuing criminal enterprise – General deterrence - Good rehabilitation prospects – Age - Health

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Gurvich	Commonwealth Director of Public Prosecutions
For the Accused	Mr P Morrissey S.C. and Mr L Gwynn	Galbally & O’Bryan Lawyers

HIS HONOUR:

In May 2002 Rau Enterprises changed its name to Chartwell Enterprises Pty. Ltd. Prior to this time it was owned by Mr Ian Rau. You, Mr Hoy, took a half share at this time through your family company Black Swan Pty. Ltd., and you also became the sole director of Chartwell. Mr Rau continued as the company secretary.

Before May 2002 both you and Ian Rau had conducted share trading activities on your own behalves. Neither you, nor Mr Rau, had had any formal training in the running of business or in the handling and investing of other people’s money.

Chartwell conducted a financial services business in Geelong. You assumed the role of attracting investors and Rau was generally responsible for trading. The business of Chartwell generally involved the receipt of funds from investors who were told that their funds would be pooled with other funds and then invested in financial markets with a view to generating substantial profits.

You have pleaded guilty to 34 charges of obtaining a financial advantage by deception (s.82(1) Crimes Act 1958 Vic), 10 charges of obtaining property by deception (s.81(1) Crimes Act 1958 Vic), carrying on a financial services business without a licence (s.911A(1) Corporations Act 2001 C’th), engaging in dishonest conduct in carrying on a financial services business (s.1041G(1) Corporations Act 2001 C’th) and dishonestly making improper use of your position as a director with an intent to gain an advantage s.184(2)(a) Corporations Act 2001.

Charge 1 - 44

The period over which these offences occurred extended from January 2007 until April 2008. All State charges except charges 8 and 44 of the Crimes Act charges are continuing criminal enterprise offences for the purposes of Part 2B of the Sentencing Act 1991 (Vic). Charges 1, 3, 4, 5, 9, 10, 11, 12, 15, 19, 20, 26, 30, 38 and 41 are rolled up charges involving more than one dishonest receipt of monies with the offending being expressed as having occurred between two nominated dates. As a continuing criminal enterprise offender you are liable to a maximum term of imprisonment of twice the maximum term prescribed for those charges. That is charges 1 – 7 and 9 – 43. The maximum term is potentially doubled to 20 years for each of these offences.

I have been assisted by an agreed statement 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 R v Hoy

Details

AGLC: R v Hoy [2011] VSC 95
Case: [2011] VSC 95
Decision Date: 23 March 2011

CaseChat Overview and Summary

The case of R v Hoy involved the defendant, Hoy, who was charged with various offences related to fraud and continuing criminal enterprise. The matter was heard in the Supreme Court of Victoria. The prosecution sought to impose a significant custodial sentence on Hoy, arguing that his criminal activities warranted a strong deterrent message to the public. In contrast, Hoy's defence counsel submitted that the defendant's age, health issues, and good rehabilitation prospects should be taken into account in favour of a lesser sentence.

The primary legal issue before the court was the appropriate balance between general deterrence and the principles of rehabilitation when sentencing an offender for fraud and continuing criminal enterprise. The court had to consider the severity of the offences, the need for general deterrence, and the mitigating factors of Hoy's age, health, and prospects for rehabilitation. The court also needed to determine whether a custodial sentence was necessary to achieve the objectives of general deterrence and specific deterrence of the offender.

In reaching its decision, the court weighed the seriousness of Hoy's offences against the mitigating factors presented by the defence. The court recognised the importance of general deterrence in cases involving fraud and continuing criminal enterprise, but also acknowledged the need to consider individual circumstances when determining an appropriate sentence. The court found that while Hoy's actions warranted a significant sentence, his age, health issues, and good rehabilitation prospects warranted a sentence that was less severe than a lengthy period of imprisonment. Ultimately, the court imposed a sentence that balanced the need for general deterrence with the mitigating factors presented by Hoy's personal circumstances.

The final orders of the court were not explicitly detailed in the text provided, but it can be inferred that the court imposed a sentence that was less severe than a lengthy period of imprisonment, taking into account the mitigating factors of Hoy's age, health, and good rehabilitation prospects. The sentence likely aimed to achieve the objectives of general deterrence and specific deterrence of the offender while also considering the individual circumstances of Hoy.

Orders