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R v Nagul

R v Nagul

Case [2007] VSCA 8 16 January 2007

Principles of Cumulation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 49 of 2006

THE QUEEN
	v.
RICHARD ALFRED NAGUL

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JUDGES:	MAXWELL P, CHERNOV JA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 January 2007
DATE OF JUDGMENT:	16 January 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 8

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Criminal law – Sentencing – Obtaining financial advantage and property by deception –Theft – Sentencing discretion enlivened – Changed circumstances of applicant’s family – Applicant’s wife seriously ill – Son commencing Year 12 – Hardship – Hardship not constitutive of exceptional circumstances – Court not to react with undue emotion to hardship – Mercy – Hardship to offender’s family due to his imprisonment taken into account in Court’s discretion to extend mercy – Mercy not appropriate as to head sentence but extended as to non-parole period – Principles of cumulation in respect of multiple offences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C G Hillman SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Isakow Lawyers

MAXWELL P:

I will ask Chernov JA to deliver the first judgment.

CHERNOV JA:

On 21 November 2005 the applicant, Richard Alfred Nagul, who is now aged 53 years, was presented in the County Court at Melbourne for trial on a presentment containing 36 counts of obtaining financial advantage by deception, (counts 1-10, 13-16, 18-39), one count of obtaining property by deception (count 17) and two counts of theft (counts 11, 12). The offences were said to have been committed between December 1993 and early 2001 while the applicant was in the employ of Spicers Paper Limited (“Spicers”) which was a listed company that was taken over by Paperlinx Limited. Throughout the relevant period the applicant held senior financial positions at Spicers and during most of it sat on its board. Essentially, the Crown alleged that the applicant used his senior position at Spicers fraudulently to redirect to his benefit cheques that were provided to the company,[1] to cause company funds to be paid to him,[2] and to present his cheques to the company in purported reduction of his debt to it when he knew there were insufficient funds in his account to meet those cheques on presentation.[3] After a trial that lasted 15 sittings days, on 16 December 2005, the applicant was found guilty by the jury of 25 counts of obtaining a financial advantage by deception[4] and two counts of theft.[5] Each offence carries a maximum custodial sentence of 10 years. After hearing a plea in mitigation of sentence, on 22 February 2006, the learned sentencing judge sentenced the applicant, who had no prior convictions, to a total effective sentence of six years imprisonment and ordered that he serve a period of imprisonment of four years before becoming eligible for parole. Not long thereafter the applicant filed notices of application for leave to appeal against his conviction and sentences and full grounds in support of the claims. Before dealing with these matters it is necessary…

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 Nagul

Details

AGLC: R v Nagul [2007] VSCA 8
Case: [2007] VSCA 8
Decision Date: 16 January 2007

CaseChat Overview and Summary

The case of R v Nagul involved a defendant who had been found guilty of multiple counts of obtaining financial advantage and property by deception, as well as theft. The matter was heard in the higher court where the sentencing for these offences was being determined. The central legal issues in this case were whether the hardship faced by the defendant’s family could be considered as exceptional circumstances warranting a departure from the usual sentencing principles, and whether mercy should be extended due to the defendant’s family circumstances. Furthermore, the court had to consider the appropriate application of the principles of cumulation in sentencing for multiple offences.

The court deliberated on whether the hardship faced by the defendant's family, including the defendant's wife being seriously ill and their son starting Year 12, constituted exceptional circumstances that would justify a deviation from standard sentencing practices. The court held that while such hardship is relevant, it does not automatically qualify as exceptional circumstances warranting a significant departure from the norm. The court emphasised that it should not react with undue emotion to the hardship presented. However, the hardship of the offender’s family due to his potential imprisonment was acknowledged as a factor to be considered in the exercise of the court’s discretion to extend mercy. While mercy was not deemed appropriate in relation to the head sentence, the court decided to extend mercy in relation to the non-parole period. Finally, the court applied the principles of cumulation to the multiple offences, ensuring that the sentences reflected the cumulative nature of the defendant's criminal conduct.

In conclusion, the court sentenced the defendant to a term of imprisonment with an extended non-parole period, taking into account the hardship faced by the defendant's family, but refraining from altering the head sentence based on those circumstances. The final orders reflected the court's balanced approach, recognising both the need for punishment and the mitigating factors presented by the defendant's personal and family situation.

Orders