Thorpe v The Queen - [2016] VSCA 158

SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0231

PETER THORPE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 July 2016
DATE OF JUDGMENT:	11 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 158
JUDGMENT APPEALED FROM:	DPP v Thorpe (Unreported, County Court of Victoria, Judge Gaynor, 25 October 2015)

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CRIMINAL LAW —Appeal — Sentence —Theft from partnership and company — Breach of trust — Severe damage to financial wellbeing of victims — Whether sentencing judge misunderstood punitive nature of a community correction order (‘CCO’) — Whether judge erred in not imposing CCO — Total effective sentence of 3 years’ imprisonment with a non-parole period of 2 years — Whether sentence manifestly excessive — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Farrington	Hartley’s Lawyers
For the Respondent	Ms F Dalziel	Mr John Cain, Solicitor for Public Prosecutions

WEINBERG JA:

I will invite Priest JA to deliver the first judgment.

PRIEST JA:
Introduction

On 16 April 2015, the appellant pleaded guilty in the County Court to two charges of theft.[1]
[1]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.

Following a plea hearing which extended over three separate days, on 12 November 2015 the sentencing judge sentenced the appellant to be imprisoned for 18 months on the first charge, and for two years on the second. Twelve months of the sentence on charge 1 was ordered to be served cumulatively with the sentence on charge 2, resulting in a total effective sentence of three years. The judge fixed a non-parole period of two years. Compensation orders respectively for $89,429.09 (charge 1 — in favour of ‘CCI’) and $174,878.97 (charge 2 — in favour of ‘CCIMG’) were also made.

The appellant sought leave to appeal on two grounds:

1. The learned sentencing judge erred in that she found that the offending was too serious to be dealt with by a community correction order.
2. The individual sentences on charges 1 and 2, the non-parole period, and the total effective sentence imposed on the applicant was in all the circumstances manifestly excessive.

On 10 March 2016, a judge of this Court granted leave to appeal on the first ground, and referred the second ground to the court hearing the appeal.

For the reasons that follow, the appeal must be dismissed on the first ground, and leave to appeal refused on the second.

Circumstances of the Offending

The appellant and the complainant, Ray Chapman, met in 1997 when the appellant was working as a Business Manager with the ANZ Bank. In 2006, the appellant and Mr Chapman formed a partnership called the Chapman Civil Industries Management Group (‘CCIMG’). At that time, Mr Chapman was the owner of a company called Chapman Civil Industries (‘CCI’).

Management of the financial affairs of CCIMG and CCI fell to the appellant. Between July 2006 and September 2009, the appellant stole $264,308.06 from those entities. Charge 1 related…

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 Thorpe v The Queen

Details

AGLC: Peter Thorpe v The Queen [2016] VSCA 158
Case: [2016] VSCA 158
Decision Date: 11 July 2016

CaseChat Overview and Summary

The appellant, Thorpe, appealed against his sentence for theft from a partnership and a company, arguing that the sentencing judge misunderstood the punitive nature of a community correction order and erred in not imposing one. The case was heard in the High Court of Australia. The appellant contended that the total effective sentence of three years' imprisonment, with a non-parole period of two years, was manifestly excessive. The court considered whether the sentencing judge had misunderstood the punitive aspect of a community correction order and whether the failure to impose such an order warranted an appeal.

The legal issues before the court were whether the sentencing judge had misunderstood the punitive nature of a community correction order and whether the judge erred in not imposing one. Additionally, the court assessed whether the total effective sentence of three years' imprisonment, with a non-parole period of two years, was manifestly excessive. The appellant argued that the sentence did not adequately reflect the severe damage to the financial wellbeing of the victims, and that a community correction order would have been a more appropriate punishment.

In dismissing the appeal, the court found that the sentencing judge did not misunderstand the punitive nature of a community correction order. The court also concluded that there was no error in the judge's decision not to impose a community correction order. The court further determined that the total effective sentence of three years' imprisonment, with a non-parole period of two years, was not manifestly excessive. The court emphasised that the appellant's actions caused severe damage to the financial wellbeing of the victims, which justified the sentence imposed.

No further orders were made by the court.

Orders