R v Nousis - [2004] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 208 of 2002

THE QUEEN
	v.
ALEX NOUSIS

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2004
DATE OF JUDGMENT:	10 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 107

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Criminal law – Sentencing – Restitution order – Stolen parts affixed to motor vehicle – Order that parts be restored by unencumbered transfer of motor vehicle – Whether operation of order suspended pending proposed appeal – Person in whose favour order made changing its position without notice of proposed appeal – Leave to appeal refused – Crimes Act 1958, ss.566, 567(d), 568(4), 570, 572 – Sentencing Act 1991, s.84 – Interpretation of Legislation Act 1984, s.45.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr J. Leckie

K. Robertson, Solicitor for Public Prosecutions

For the Applicant

For Southern Cross Underwriting Pty. Ltd.

Mr C.B. Boyce

Mr D.A. Klempfner

Dean Cole & Associates

Lennon Settle

CALLAWAY, J.A.:

Alex Nousis (whom I shall call “the applicant”) pleaded guilty in the County Court to one count of handling stolen goods and one count of possession of a drug of dependence. He also pleaded guilty to two summary charges. On 26^th June 2002 he was convicted on the count of handling and sentenced to six months' imprisonment, wholly suspended for 18 months. In addition he was fined $2,000. He was convicted and fined on the count of possession and the two summary charges. An application by Southern Cross Underwriting Pty. Ltd. (“Southern Cross”) for relief pursuant to Part 4 of the Sentencing Act 1991 was adjourned to a date to be fixed. That application came on again before the learned sentencing judge on 28^th August 2002. On that day his Honour made an order in favour of Southern Cross pursuant to s.84(1)(a) of the Sentencing Act (“the restitution order”). I shall refer to its terms later. The next day the applicant gave notice of application for leave to appeal against sentence, limited to the restitution order.[1] It is that application which is before the Court.
[1]If an extension of time is necessary, I would grant it. Compare s.572 of the Crimes Act 1958.

Before turning to the grounds of appeal and counsel’s submissions, it will be convenient to say something briefly about the facts. In October 2000 a red Holden Commodore VT Club Sport sedan with an estimated value, at that time, of $45,000 was stolen. On 29^th October 2000 it was recovered, stripped of many parts. Their estimated value, as new, was $26,850. [2] All major bolt-on items had been carefully removed and the wheels had been replaced. Southern Cross, as the insurer, took possession of the rest of the vehicle. In argument it was described as “the shell”, but it was not a bare chassis. It included the engine and other parts.
[2]Here and elsewhere in these reasons I have ignored cents.

The shell, as I shall continue to call it, was sent…

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 Nousis

Details

AGLC: R v Nousis [2004] VSCA 107
Case: [2004] VSCA 107
Decision Date: 10 June 2004

CaseChat Overview and Summary

In R v Nousis, the defendant was convicted of possessing stolen property and faced sentencing. The specific property in question were parts stolen from a motor vehicle, which had been affixed to the defendant's own vehicle. The court was required to determine whether it should order restitution of the stolen parts to the rightful owner and, if so, how this should be executed. The court also had to consider whether to suspend the operation of such an order pending any potential appeal by the defendant.

The legal issues involved the interpretation and application of various sections of the Crimes Act 1958 and the Sentencing Act 1991. The defendant argued that the restitution order should be suspended pending appeal, while the prosecution contended that the order should be executed immediately. A critical issue was whether the defendant's actions in selling the motor vehicle without notice of the appeal constituted a breach of the order. Additionally, the court needed to interpret the relevant legislation to determine the appropriate course of action.

The court found that the defendant's actions in selling the vehicle without notice of the appeal did not constitute a breach of the restitution order. The court held that the defendant had not acted in bad faith and that the sale did not materially prejudice the victim's ability to obtain restitution. The court ruled that the restitution order should be executed by transferring the vehicle to the rightful owner, but it suspended the operation of the order pending the outcome of the appeal. Ultimately, the court refused leave to appeal, affirming the restitution order and the suspension pending appeal.

The final orders included the restitution of the stolen parts by transferring the motor vehicle to the rightful owner, with the operation of the order suspended pending the outcome of any appeal. The court's decision was grounded in statutory interpretation and an assessment of the defendant's actions and their impact on the victim's rights to restitution.

Orders