The Queen v Gant & Siddique [2016] VSC 662

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 - Sentencing Act 1991 (Vic), s 86.

CRIMINAL LAW - Applications to stay sentence pending determination of proposed appeal against conviction - Guilty verdicts alleged to be unsafe - Prasad invitation rejected by jury - Cogent evidence that paintings existed in 1988 - Strong argument that verdicts are unsafe - Precarious mental health of S - Rare and exceptional circumstances - In interests of justice to order stay - Stays ordered until applications for bail pending appeal determined by Court of Appeal - Criminal Procedure Act 2009 (Vic), ss 276(1)(a) & 309.

**Part 1: Sentencing

1 This case concerns alleged art fraud audacious in its perpetration and involving millions of dollars.

2 Brett Whiteley was a highly-regarded artist. Robert Hughes said of him that "[n]o Australian painter possesses ... [his] precocious instinct for making marks on surfaces". Sadly, Mr Whiteley died in 1992, aged only 53. As was the case during his lifetime, his works today still command very high prices - perhaps even higher now.

3 Mr Hughes, who was known for his rather acerbic commentary, also had quite a bit to say about the art market. He once said that "[t]he new job of art is to sit on the wall and get more expensive". In a memoir, he offered this:

Art prices are largely about voyeurism and toxic snobbery. They are what you see when you peer up the anus of 'culture'.[1]

4 By their verdicts in this trial, the jury may well have accepted that similar thoughts motivated art dealer Peter Stanley Gant and art conservator Mohamed Aman Siddique to skip the genuine-works-sitting-on-the-wall part and, instead, from 2007, devise a plan to create anew three paintings in the style of Mr Whiteley's Lavender Bay series and then pass them off to unsuspecting buyers as valuable originals painted by him in 1988. On the prosecution case, the accused apparently were sufficiently impudent to think the art world gullible, or greedy, enough, or perhaps both, to fall for this ruse, three times and heavily, despite what was thought to be Mr Whiteley's unique and unmistakable gift.

5 All three works, it was alleged, were created from scratch by Mr Siddique in his studio in Easey Street, Collingwood. It was said that he drew upon familiar aspects of Mr Whiteley's motifs and techniques and used as his template a genuine Whiteley - namely, View from the Sitting Room Window, Lavender Bay ("the Brown painting"), for which Mr Gant paid the handsome price of $1.65 million in March 2007. Mr Siddique was with Mr Gant when he bought the Brown painting in Sydney, and it was delivered to his studio in April that year.

6 The evidence for this aspect of the prosecution case came largely from photographs taken inside the studio by Guy Morel, a paper conservator who was also Mr Siddique's tenant. In the second half of 2007, after speaking to Mr Siddique's employee Judd Wimhurst, Mr Morel became suspicious that something untoward was afoot in a private area of the studio. On several occasions over the next two years, when Mr Siddique was absent, Mr Morel surreptitiously took photographs of works in various stages of production (as well as the genuine Brown painting nearby). He first handed images to police in 2007 and then several more followed later. The jury must have accepted that the completed versions of these works were the ones subsequently offered as Whiteley originals. I think it is fair to say that the unfinished works in the photographs look similar to the three finished works the subject of the charges.

Two paintings are sold; one is offered for sale but not sold

7 Mr Gant's part in this joint criminal enterprise, it was alleged, was to use his connections in the art world to place the paintings with art dealers in order to sell them as if they were genuine originals created by Mr Whiteley in 1988, when he knew them to be recently-created fakes. He ended up placing the paintings with experienced dealers Anita Archer and John Playfoot.

8 Two of the works were in fact sold, and for plenty. The first painting, entitled Blue Lavender Bay ("the Blue painting"), was sold in late-2007 through Ms Archer to investment banker Andrew Pridham for $2.5 million. The second, Lavender Bay Through the Window ("Through the Window"), was offered by Ms Archer to dealer Ralph Hobbs for $950,000 in late-2009. Around the same time, the third, called Orange Lavender Bay ("the Orange painting"), was sold through Mr Playfoot to Sydney used car dealer Steven Nasteski (or his company, actually) for $1.1 million.

9 The paintings must have been pretty good, because not only did two sell at these hefty prices, but a bevy of respected industry experts gave them gushing approval.

10 In late-2007, Mr Pridham bought the Blue painting on the strong recommendation of his agent, Ms Archer. She said that its provenance was "impeccable"; and described it as "a trophy painting" and as "a very good investment". Mr Pridham did not quibble about the price. He snapped it up, sight unseen.

11 Earlier, in October 2006, Mr Gant had told Ms Archer of the painting, that it was owned by collector Robert Le Tet, and that it would be coming on the market in the next financial year. In November 2007, Mr Gant contacted her again. He said that Mr Le Tet had commissioned the painting in 1988 through Christian Quintas, who was Mr Whiteley's assistant-cum-manager back then. Mr Gant told Ms Archer that the painting had been cleaned by Mr Siddique and was ready to be viewed at Mr Le Tet's office boardroom in South Melbourne. She went to the office, viewed the painting and photographed it. Later, Ms Archer sent photographs of the painting to Mr Whiteley's former framer Brett Lichtenstein, who said he remembered it and identified his own frame on it. It was against that background that Ms Archer recommended the painting to Mr Pridham.

12 Two years later, in late-2009, having received from Mr Gant a photograph of Through the Window, Ms Archer had no hesitation in forwarding it to Mr Hobbs, and offering it to him at $950,000. She did, however, suggest that, before any sale, the work should be "authenticated" by Mr Whiteley's former wife Wendy, but added that the work was commissioned during a period when she was not involved in her former husband's life and that "she can be problematic in this regard". As it happened, Mr Hobbs was not enamoured of it when he saw the painting in the flesh, and so declined to buy it. Undeterred, in February 2010, Ms Archer proposed that the painting be advertised in the National Gallery of Victoria's magazine Gallery, and, by letter, sought Mrs Whiteley's copyright permission to do so, but she did not respond.

13 It was also in late-2009 that Mr Gant placed the Orange painting with Mr Playfoot, another experienced art dealer. Mr Playfoot said he "loved" it. When he showed the painting, proudly, to dealers Chris Deutscher and Damian Hackett, one said, "You lucky bastard," and the other said, "It's a bloody cracker." On another occasion, dealers Tim Goodman and Geoffrey Smith were also suitably impressed. Mr Smith, "the doyen", according to Mr Playfoot, even pointed out parts of the painting where the artist had made slight alterations - or pentimenti - which, he said, demonstrated its authenticity. Mr Goodman was so keen on it that he asked Mr Playfoot for, and was given, the chance to sell it, as was Georgina Pemberton, another dealer.

Experts then doubt the authenticity of the paintings

14 Others, however, were not so convinced about these works.

15 Some months after Mr Pridham bought the Blue painting, Wendy Whiteley examined it. While she did not say it was a fake, in about May 2008, she told Ms Archer that it was "a bad hair day Whiteley".

16 When these concerns were raised, Ms Archer asked Mr Gant for a document from Mr Le Tet confirming the provenance of the painting. In October 2008, Mr Gant provided a note purportedly signed by Mr Le Tet. In truth, it was not signed by Mr Le Tet, which Mr Gant later admitted. (This evidence was left as evidence of incriminating conduct against Mr Gant alone and only on the charge concerning this particular painting.) From the late-1980s, Mr Le Tet had an ongoing relationship of funding Mr Gant's purchases and sales of paintings, and of holding paintings as security. These works included a number of Lavender Bays, as well as Mr Gant's purchase of the Brown painting in March 2007. However, Mr Le Tet denied ever buying any painting directly from Mr Whiteley or Mr Quintas. He also accepted that, in an attempt to explain himself over the document containing the false signature, Mr Gant told him that he used his name to give the Blue painting a more credible provenance.

17 In July 2010, Professor Robyn Sloggett, an expert with the University of Melbourne, examined the Blue painting and wrote a report doubting its authenticity.

18 In August 2010, Mr Gant signed an agreement with Ms Archer that he would refund the monies in return for the painting, but maintained that it was authentic. (There was evidence that it was common in the art world to provide refunds when a customer was dissatisfied.) However, Mr Gant was unable to raise the funds. He then sought to enter an arrangement with Steven Drake to buy the painting, but nothing came of that in the short term.[2]

19 When, in late-2009, Mr Hobbs was shown Through the Window, he thought it was "very anaemic or flat" and that "it just didn't feel right". He was not satisfied of its provenance either. Thus his decision not to buy it or to recommend it to his clients.

20 Around the same time, Andrew Crawford, an art dealer who initially acted as Mr Nasteski's agent in the purchase of the Orange painting, became unconvinced of its authenticity. Unlike when he saw the photographs, when he saw the painting "in the flesh", it "didn't feel right" to him. When Mrs Whiteley viewed it, she said, again, "If the picture was okay, it was an extremely bad hair day." Mr Crawford became so concerned that he advised Mr Nasteski not to buy the painting. Mr Nasteski showed it to Ms Pemberton and David Cook, both of Sotheby's, who believed it to be genuine. Mr Nasteski completed the transaction directly with Mr Playfoot and without Mr Crawford's blessing. Not long afterwards, however, he changed his mind and extracted a refund from Mr Playfoot.

21 Ultimately, Professor Sloggett and her colleague Vanessa Kowalski examined the Blue and Orange paintings closely. At trial, they said that, because of what they regarded as a lack of sufficient points of identification with techniques known to be used by Mr Whiteley, and because of the absence of what they described as any verifiable provenance linking them to his works, they felt unable to conclude that they were Whiteley originals.

Other evidence suggesting the studio paintings were those sold

22 In addition to the links between Mr Gant and Mr Siddique through the Brown painting and the photographs taken by Mr Morel, there was also other evidence that, it was argued, supported the case that the incomplete works photographed in the Easey Street studio were the very same ones the subject of the charges.

23 First, the prosecution pointed to infrared photographs of the Blue and Orange paintings showing underdrawings which, it was argued, were at least similar to some aspects of the underdrawings visible in some of the photographs taken by Mr Morel. There were, however, considerable limits on that evidence, as there was no attempt by the prosecution to use photogrammetry to measure and line up, in a precise and accurate way, the underdrawings in the Easey Street images and those underdrawings apparent in the infrared images.

24 There was also evidence from Mrs Whiteley that, while her husband did underdrawings for some nudes, he did not do so for the Lavender Bay paintings. But that evidence was not relied on by the prosecution, for obvious reasons. First, there was no suggestion in Professor Sloggett or Ms Kowalski's evidence that Brett Whiteley did not do underdrawings when painting his Lavender Bay works. Secondly, it is plain from an excerpt from a documentary video in 1989, which was played to the jury, that Mr Whiteley was doing underdrawings at that time, which of course is around the same time, on the defence case, that he painted the works the subject of the charges. Thirdly, Mrs Whiteley had long since separated from her husband in 1988, and therefore would not have known what techniques he might have been using at that time.

Timing of ordering of doors and frames vis-à-vis creation and sales of paintings

25 Secondly, it was argued that the timing of the ordering of doors and framing fitted with the timeline of the creation and sale or attempted sale of the paintings.

26 In respect of the Blue painting, there was evidence that, in July 2007, Mr Siddique ordered four doors with a specific request for clean faces and no joins. Three of those doors matched the sizes of the subject paintings. The doors were delivered in August 2007. Mr Siddique told a supplier that the doors were for Mr Gant's house. Photographs taken by Mr Morel in October 2007 show a blue painting, that looks like the Blue painting sold to Mr Pridham, in various stages of completion, with the Brown painting sitting to its left. A frame was delivered to the studio on 22 November 2007. Then, between 28 November and 12 December 2007, Mr Gant facilitated the sale of the Blue painting through Ms Archer.

27 Similarly, in respect of Through the Window, on 19 August 2008, ten doors were delivered to the studio with a specific request for clean faces and no joins. One of those doors matched the size of Through the Window. A frame was then delivered on 6 January 2009. Then, Mr Morel took photographs from February to August 2009, which show a painting that looks similar to Through the Window in various stages of completion. Through the Window was offered for sale between 26 November and 8 December 2009.

28 Finally, in respect of the Orange painting, the door for it was alleged to have come from the first delivery of doors in August 2007. Photographs taken by Mr Morel from October to December 2008 show a painting similar to the Orange painting, with the Brown painting nearby, as well an art book opened at a page showing a picture of one of Mr Whiteley's famous orange paintings. On 16 April 2009, a frame was delivered to the studio. In December 2009, the sale of the Orange painting was effected.

29 A third tranche of evidence said to support the prosecution case concerned the ordering of picture frames. Mr Whiteley often used water-gilded frames for his large Lavender Bay paintings. The three frames Mr Siddique ordered from Antonio Rincon during this period were all water-gilded. Mr Rincon had been taught by Mr Lichtenstein to make water-gilded frames in the style of frames he had supplied to Mr Whiteley. The dimensions of the frames were approximately the same as or larger than the paintings the subject of the charges, and therefore could have been cut down or manipulated to fit those paintings. Further, Mr Rincon was never asked to frame any paintings, but just to supply the frames. Mr Siddique, it was argued, had the skill and expertise to frame the paintings himself in the style of Mr Lichtenstein.

30 The Blue and Orange paintings stood tall and wide against the wall inside this Court during the trial. It was as if they were mute sentinels - keeping watch over the proceedings but unable to tell us who created them, or when. The prosecution conceded that scientific evidence was not able to age them. The other painting - Through the Window - was not in Court, as it was never seized by police. Only photographs of it were in evidence.

31 Mr Gant and Mr Siddique's principal defence was that the works were in fact painted by Mr Whitely in 1988.

32 In his interview with police in 2014, Mr Gant said that he bought all three paintings in the late-1980s through Mr Quintas. He said he would have a record of the paintings in his consignment book. Further, he said that the Orange painting was shown in a catalogue created for an exhibition in 1989 that ultimately did not go ahead after his business partner died suddenly.

33 There was cogent evidence, in both viva voce and documentary form, led in the prosecution's own case that supported Mr Gant's account. First, Mr Gant's former gallery assistant Rosemary Milburn identified an original consignment book which recorded, in her handwriting and with her signature on a consignment note, the delivery, from Mr Quintas on 28 June 1988, of three Whiteley paintings of the same size, name and colour as those the subject of the charges. She remembered the three large paintings of blue, lavender and orange arriving at the gallery in bubble-wrapped pallets.

34 Secondly, while there was other evidence in the trial that there were no catalogues to be found in libraries or galleries referring to any of the three paintings, that is explained not only by Mr Gant's account but also the evidence of Jeremy James. In 1989, Mr James, whose family had a printing business, was engaged by Mr Gant to photograph two large Whiteley paintings for a catalogue for a proposed exhibition. One was orange; the other was blue; and both were Lavender Bay types. He identified the finalized catalogue, entitled A Private Affair, and pointed to a page therein that showed his photograph of the orange painting. (The blue painting did not make it into the catalogue.) Only a small number of catalogues were ever printed because the exhibition did not go ahead when Mr Gant's business partner suddenly died. What is more, Mr James identified the Blue and Orange paintings standing in this Court as the ones he photographed in 1989. Further still, he also produced an earlier proof of the catalogue, which contained his own handwriting and his photograph of the Orange painting.

35 The prosecution accepted that both Ms Milburn and Mr James were honest witnesses. The argument made to the jury, however, was that they must be honestly mistaken somehow. It was submitted that the consignment note must have been tampered with after Ms Milburn signed it in 1988; and that, since she was not asked until 2013 to examine the note, there is a risk that "the power of suggestion" affected her thinking about events in 1988. It was also submitted that Mr James must have been referring to a different Whiteley in an earlier catalogue (i.e. one from Autumn 1988, not 1989) to which he contributed as well; and that he too must have been open to suggestion when identifying the paintings in Court. I should add that these assertions, made in final address, were never raised, nor sought to be raised, by the prosecution with the witnesses.

36 In any event, the earlier catalogue contained a small portrait of Mr and Mrs Whiteley's (famous) daughter Arkie, not of a large blue or orange painting in the style of the Lavender Bay series. Further, there was no evidence suggesting that the documents which Ms Milburn and Mr James were shown or produced were false or that their handwriting had been forged or added at some later time. On the contrary, in an ironic twist, Mr Morel, whose expertise is in paper conservation, provided a report to Mr Gant[3] in September 2010 on the 1989 catalogue, in which he concluded that it was produced prior to November 1989.

37 At the close of the prosecution case, having rejected, by a hair's breadth, defence submissions that there was no case to answer, it was the evidence of Ms Milburn and Mr James, together with the documents, and to a lesser extent the evidence of Mr Morel, that caused me instead to take the rather exceptional course of giving the jury a Prasad invitation - which is the option of returning a verdict of not guilty without hearing further evidence, the parties' final addresses or the judge's charge.[4] This option may be given to a jury in circumstances where a criminal case is thought to be so weak that the judge is concerned that a guilty verdict would be unsafe.[5] Having heard all of the evidence to that point in the trial, I formed the view that it was not open to a properly instructed jury to exclude the reasonable possibility that the three paintings the subject of the charges were created by Mr Whiteley in 1988. If that was right, verdicts of not guilty had to follow.

38 Evidently, the jury took a different view. For they declined to take up the Prasad invitation and decided instead to carry on with the trial, as was their right. Additional evidence was called in the case of Mr Siddique; counsel made their final addresses; I delivered my charge; and the jury were sent out to consider their verdicts. Following what by then had become a 22-day trial, which included two-and-a-bit days of deliberations, on 12 May this year, the jury returned verdicts of guilty against Mr Gant and Mr Siddique on two charges of obtaining, and one charge of attempting to obtain, a financial advantage by deception.[6]

39 Accordingly, it now falls to me to pass sentence for these crimes.

40 At this point, lest there be any misunderstanding, I should add this. Despite my doubts about the safety of the verdicts, about which I shall have to say more later in another context, in the same way that I regarded myself as compelled in law to reject the defence submissions of "no case to answer" and decline to direct verdicts of acquittal, I must - and do - pay respect to the jury's verdicts and sentence the accused on the basis that they are properly convicted of these crimes. Whether the verdicts are unsafe is not for me, as the trial judge, to determine, but for the Court of Appeal to consider at a separate hearing.

41 There has been considerable delay between trial and sentence, which should be explained. First, because of a combination of counsel's commitments and mine, the pleas in mitigation could not be heard until 28 and 29 July and sentence could not be passed until 26 August. Subsequently, counsel sent further written submissions. In light of those submissions and other commitments that arose in the interim, sentence was put back until 12 September. On that day, when I was about to sentence, the prospect of an application for compensation was raised, when that application had been withdrawn previously. That development then necessitated an adjournment to 12 October so that the compensation application, and another one in prospect, and the possible impact of such orders on sentencing considerations, might be addressed. On 12 October, those matters were heard, so that now I come to sentence.

42 I should add that Mr Gant and Mr Siddique have been on bail all this time, both before and since verdict.

43 Shortly, I shall address the various sentencing considerations. After I have announced the sentences, I shall deal with the applications for compensation and then the (rather novel) applications that the sentences be stayed pending appeal.

Nature and gravity of the offences, culpability and degree of responsibility

44 I turn now to the nature and gravity of the offences, their maximum penalties, and to each accused's culpability and degree of responsibility for these offences.[7]

45 Usually, the maximum penalties for the offences of obtaining, and attempting to obtain, a financial advantage by deception are ten and five years' imprisonment respectively.[8] In this case, however, because of the operation of the continuing criminal enterprise offender provisions, those maxima are increased to 20 and ten years' imprisonment respectively.[9]

46 Offences of deception or attempted deception can vary quite considerably in their level of seriousness. These particular offences had some serious features. First, they amounted to rather cynical instances of fraud, or attempted fraud, on the actual or prospective purchasers. Secondly, these were not offences committed on the spur of the moment. Rather, they were calculated offences that must have taken a considerable amount of painstaking clandestine work, in the case of Mr Siddique, and ongoing audacity, in the case of Mr Gant. Thirdly, the three offences spanned about two years - a considerable period. Fourthly, the amounts of money involved were large. The offence against Mr Pridham is the most serious in that regard, which concerned $2.5 million, none of which has been repaid. Collectively, the amount sought to be obtained was $4.55 million. Mr Nasteski was refunded his $1.1 million; and, by definition, none of the $950,000 sought from Mr Hobbs was ever obtained. Fifthly, offences like this must have at least the potential to shake people's confidence in the market for art.

47 In my view, Mr Gant and Mr Siddique's roles in the offending were equally important. Mr Siddique's expertise was needed to create the paintings; and Mr Gant's expertise and front was required to sell them. On that measure, and consistently with the notion that they were part of a joint criminal enterprise to commit each offence, I think that they should be regarded as equally culpable and equally responsible for the offences.

48 However, while Mr Gant, by virtue of his particular role, set and therefore knew the prices at which the paintings were offered for sale, there is no evidence that Mr Siddique was involved in this process or that he was even aware of the particular prices for which they were offered. All that can be said is that, as a person familiar with the art world, Mr Siddique must have known that, as large works purportedly by Mr Whiteley from his Lavender Bay series, they would be likely to command substantial sums, if sold. As to how substantial or whether he really expected them to be sold, it is difficult to say. For all I know, he might have thought that there was no realistic chance they would be sold or that, if they were, perhaps $200,000 to $500,000 was the best they could expect for them. Guessing at such figures, of course, amounts to speculation. On the other hand, on the evidence of Mr Wimhurst, Mr Siddique must have known that the Brown painting, which was used as a template, was bought by Mr Gant for $1.65 million, which is perhaps some indication of what he might have hoped or expected one or more of these paintings would fetch. There was, of course, a vast disparity between the price received for the Blue painting and the prices sought or paid for the other two. I simply cannot be satisfied that Mr Siddique expected anything like that sort of price to be paid for the Blue painting.

49 Mr Gant was paid the net proceeds of the sales of the Blue and Orange works. After Ms Archer and Mr Playfoot took their commissions (of $300,000 and $100,000 respectively), the amounts received by Mr Gant were $2.2 million and $1 million, a total of $3.2 million. Thus, he has profited very substantially from those two frauds. There is, however, no evidence as to how those funds were disbursed. Nor is there any suggestion that he lived a lavish lifestyle or otherwise distributed these funds to others.

50 Importantly, there is no evidence that Mr Siddique received any of these funds. On the other hand, it is, I think, reasonable to infer that he would not be involved in such behaviour for no reward. While I cannot quantify what he might have expected to be paid, I think I am entitled to infer, and do, that he would have expected at least some commercial payment for his work. But, since there is no evidence that he actually received a cent, I am compelled to sentence on the basis that he received nothing but that he might have expected a commercial reward.

51 Overall, I regard these as serious examples of obtaining, and attempting to obtain, a financial advantage by deception. The offence committed against Mr Pridham is the most serious, by far. It was a very substantial fraud for which he has not been recompensed. However, for the reasons I have given, I think that Mr Siddique's culpability and degree of responsibility for the offences, while considerable, is somewhat lower than Mr Gant's.

52 Balanced against the seriousness of the offending are the accused's personal circumstances and the mitigating factors on which they are entitled to rely.[10]

54 Peter Stanley Gant was born in Tasmania on 28 October 1955. He has just turned 61.

55 When Mr Gant was only very young, his family moved to Kyneton, where he attended primary school and then secondary school until Form 3. He then boarded at Geelong College, where he completed HSC. He commenced a Diploma of Education at Rusden Teachers' College, but left before completing the course.

56 Around 1974, he set up Peter Gant Fine Art in Caulfield, a gallery selling contemporary Australian art.

57 In 1977, he started Niagara Galleries in the CBD of Melbourne. He left that business in 1985, although it still operates to this day, now in Punt Road.

58 In 1981, Mr Gant married his first wife. They had a daughter, Christine (or "Chrissy"), who is now 33 and has a catering business.

59 In 1988, Mr Gant married his second wife, Deborah, who works as a psychiatric nurse. They had three children. Rebecca, aged 28, is a social worker; Jessica, 25, works as a designer; and Stanley, 23, works in the automotive industry.

60 In 1989, Mr Gant's business partner and friend Greg Korn died suddenly.

61 In 1990, he started James Street Gallery, in Geelong. The artists whose works were exhibited were mostly young and from Geelong. The gallery closed in 1992.

62 Also in 1990, Mr Gant was declared bankrupt over a dispute about payments for a car. He was discharged after only a short period.

63 From 1993 to 2010, Mr Gant ran Gallery Irascible. After the closure of that gallery, the ATO pursued Mr Gant for unpaid taxes, which led to his being declared bankrupt again. He was discharged in August 2015.

64 Since 2011, Mr Gant has worked for his daughter Chrissy in her catering business, initially without charge, because she could not afford to pay him. More recently, he has been paid at $25 an hour, and has also worked for another catering business for a modest wage.

65 In 2016, Mr Gant and his wife Deborah separated. They remain on good terms.

67 The first is that Mr Gant has only a comparatively modest criminal history.

68 In 1993, he was placed on an adjourned undertaking, and ordered to pay $2,000 to the Court Fund, on a charge of theft of a motor car. This is his only prior appearance.

69 Mr Gant has a subsequent appearance. In 2015, he pleaded guilty to charges relating to his second bankruptcy. One charge concerned his signing a declaration that was false in that it involved a failure to declare a home owned by him. The others concerned his leaving the country (on eight occasions) without the consent of the trustee. He had sought permission on other occasions to travel for the purpose of dealing in art but did not do so on the occasions in question. He was fined $1,500.

70 Thus, while it cannot be said that Mr Gant is without prior or subsequent blemish, for a man of 61, these are matters of only very modest significance.

71 Secondly, Mr Gant is a man of otherwise positively good character. The various written references tendered on the plea make this plain.

72 Mr Gant has been an art dealer and gallery owner since 1974. He has made a significant contribution to the cultural life of Australia through his support of emerging artists and his knowledge of and passion for Australian art.

73 Also, he has contributed to the community by dropping off free lunch boxes for Melbourne City Mission; by fundraising for the Women's Electoral Lobby; and by holding an auction for the Ardoch Youth Foundation.

74 Finally, he has worked hard to raise a family; has been a good father; and enjoys the continuing support of family and friends.

75 Thirdly, Mr Wraight QC, who appeared with Ms Todd for Mr Gant, submitted that his client has suffered, and will continue to suffer, extra-curial punishment in the form of adverse publicity, which in turn means that it is extremely unlikely that he will be able to work as an art dealer ever again.

76 Ms Borg, who appeared with Ms Harper for the Director, submitted that the reason Mr Gant has these difficulties is his involvement in the offending, as demonstrated by the jury's verdicts.

77 While the latter submission must be accepted, that does not deny the reality that, even if he is completely rehabilitated ultimately (which, I accept, will occur), it is likely that Mr Gant will never be able to resume work as an art dealer. In my view, that is a form of extra-curial punishment to which he is not due, and should be taken into account in mitigation.

78 The fourth matter concerns the very substantial delay between the offending, charging, trial and sentence.

79 The offending occurred from late-2007 to late-2009. Mr Morel first spoke to police in 2007. While there was no offence committed until a painting was sold, that first sale occurred in late-2007. Mr Nasteski's money was refunded in 2010. Professor Sloggett's first report was completed in the same year. In 2011, Mr Pridham took civil proceedings against Ms Archer concerning the Blue painting. Mr Gant was joined in those proceedings by Ms Archer. Yet Mr Gant and Mr Siddique were not charged until March 2014. The jury's verdicts were delivered in May this year. Now, they are to be sentenced towards the end of 2016. Thus, between seven and nine years have passed since the offending.

80 While criminal charges were not laid until 2014, it is plain that Mr Gant has found this whole period of delay stressful, but particularly since being charged. His daughter observes that he has continued to put on a brave face, but it is obvious that the proceedings have taken their toll. That there has been a long delay between the alleged offences, his being charged, the trial and sentencing can only have made things worse. Nevertheless, he has used the time profitably by working and helping his daughter in her business. His only blemish during this period is the comparatively minor offending arising out of his second bankruptcy.

81 In those circumstances, I consider that the impact of delay is a significant matter in mitigation, particularly for a man who is now 61.

82 The final matter in mitigation is that I am satisfied that Mr Gant has very good prospects of rehabilitation.

83 There are essentially four reasons for that conclusion. First, as I have said, at the age of 61, Mr Gant has only a very modest criminal history but a very solid history of positively good character. Secondly, he retains very strong ongoing family support. Thirdly, there are no matters pending (other than Charge 5 on the current indictment). Fourthly, he will have work available to him in his daughter's business after his release. She makes the point that, as far as work goes, nothing is beneath her father: he will wash dishes, peel pears, deliver lunches - whatever is required. In my view, that is an admirable quality, and one that augers very well for his rehabilitation.

84 Those same factors drive me to the conclusion that there is no real risk that Mr Gant would commit, or would be in a position to commit, an offence of this nature again.

85 I turn now to Mr Siddique's personal circumstances and the mitigating factors on which he is entitled to rely.

86 Mohamed Aman Siddique was born in Uganda on 26 November 1948. He is therefore about to turn 68. He is the fifth of seven children.

87 His family had migrated to Uganda from India. However, in the late-1960s, the Ugandan Government discriminated against those of Asian origin in several respects, including denying them citizenship and access to higher education. As a result, it was decided that Mr Siddique and his brothers should head for England.

88 In 1975, he was married to a woman whose family had had a similar history of moving from India to Uganda and then to England.

89 Mr Siddique showed superior ability in art. Eventually, he gained entry to the Chelsea School of Art and then to the prestigious Courtauld Institute to study art conservation. Despite achieving exceptional results, he was advised that he would find it difficult to get work in Great Britain given his racial background. It might have been well-intentioned advice, but it still hurt. As he said to psychologist Patrick Newton, he felt he was "not black enough for Uganda, but not white enough for Britain".

90 In 1983, with two very young children, the Siddique family migrated to Australia. Their third child was born here. They settled in Ballarat, where Mr Siddique took up a position as an art conservator with regional galleries.

91 By 1988, he had set up his own art conservation business. He was very successful. His skills were respected and sought after.

92 Since being charged in 2014, his business has essentially ceased.

93 Mr and Mrs Siddique maintain a strong relationship. All three of their children are now grown up and successful in their careers.

95 First, at nearly 68, Mr Siddique is a man without any criminal history whatsoever.

96 Secondly, Mr Siddique has a strong history of outstanding character. This is clear from the viva voce evidence at trial from barrister Gavan Rice and semi-retired dentist Dr Hartley and from the numerous impressive written references received on the plea.

97 Mr Siddique has enjoyed a reputation for impeccable character and the highest integrity for over 30 years.

98 He also enjoys a strong reputation for giving of his time and money generously to charitable causes, community organizations and friends.

99 Mr Wimhurst gave evidence that, when he was approached by police, he rang Mr Siddique and asked what he should do. Mr Siddique told him to tell the truth.

100 Thirdly, Mr van de Wiel QC, who appeared with Mr Ribbands for Mr Siddique, also submitted that, like Mr Gant, his client has suffered extra-curial punishment in that, as result of publicity, his reputation has been destroyed such that there is no chance that he will work again as an art conservator.

101 Ms Borg made the same submission she made concerning Mr Wraight's equivalent point.

102 And I reach the same conclusion. In particular, while it must be accepted that the behaviour that constitutes the offending has caused the loss of reputation and consequent loss of career, that does not deny the reality that, even if he is completely rehabilitated ultimately (which, in Mr Siddique's case, I accept has all but occurred), it is almost certain that Mr Siddique will never be able to work again as an art conservator. Even if it were thought that, in time, his reputation will be restored, at the age of nearly 68, time in the workforce is not something Mr Siddique has a lot of. Thus, in my view, he will suffer a form of extra-curial punishment to which he is not due, and which should be taken into account in mitigation.

103 Fourthly, as I indicated earlier, there is no evidence that Mr Siddique received any of the funds received for the Blue and Orange paintings.

Automatic forfeiture of lawfully-acquired property to value of $1.25 million

104 Fifthly, as a result of his conviction, an agreement struck between Mr Siddique and the Director, orders made by this Court on an earlier occasion, and orders I propose to make shortly, Mr Siddique will suffer automatic forfeiture of his lawfully-acquired property to the value of $1.25 million, even though he did not receive any of the monies paid by Mr Pridham or Mr Nasteski.

105 That outcome arises from the following circumstances. On 14 December 2014, on the application of the Director, a restraining order was made ex parte over properties in which Mr Siddique may have had an interest. The properties were restrained for the purposes of satisfying any automatic forfeiture that may occur, or orders that may be made for forfeiture or pecuniary penalty, under the Confiscation Act 1997 (Vic), or for the purposes of satisfying any order that may be made for restitution or compensation under the Sentencing Act 1991 (Vic).[11] Subsequently, Mr and Mrs Siddique made applications for exclusion of their interests from the operation of the restraining order.

106 On 15 and 16 September 2015, Mr and Mrs Siddique and the Director settled the dispute on terms reflected in a deed and a subsequent order of the Court. While the agreement might be thought to be a tad complicated, and while its precise effect is contingent upon some uncertain events, Ms Borg and Mr van de Wiel accepted that the net effect can be taken to be this. If Mr Siddique is convicted and if Mr Pridham is unsuccessful in an application for compensation under the Sentencing Act, an amount of $1.25 million dollars of the realized funds from the sale of certain restrained properties will be automatically forfeited to the State. Further, of that $1.25 million, $825,000 will be attributable to the Easey Street premises and the other $400,000 will be attributable to a property in Templestowe. For reasons I shall explain soon, Mr Pridham's application for compensation will be refused.[12]

107 Section 5(2A)(ab)(i) of the Sentencing Act provides that, if satisfied that property was acquired lawfully, a court may have regard to automatic forfeiture in respect of property that was used in, or in connection with, the commission of the offence. Section 5(2A)(e) provides that, subject to s 5(2A)(ab), a court must not have regard to the automatic forfeiture of property.

108 Ms Borg and Mr van de Wiel both accepted that the $825,000 attributable to Easey Street falls within s 5(2A)(ab)(i), because those premises were lawfully acquired and were used in the commission of the offences, whereas the $400,000 attributable to the Templestowe property does not come within the provision because, while the property also was lawfully acquired, it was not used in the commission of the offences. I agree.[13]

109 However, s 5(2B) of the same Act provides that nothing in s 5(2A) prevents a court from having regard to automatic forfeiture occurring by operation of the Confiscation Act as an indication of remorse or co-operation with the authorities on the part of the offender. Ms Borg and Mr van de Wiel both accepted that Mr Siddique's co-operation in ensuring that $400,000 attributable to the Templestowe property is automatically forfeited if convicted is something to which regard may be had in sentencing as co-operation with the authorities pursuant to s 5(2B). Again, I agree.

110 In R v McLeod,[14] the Court of Appeal made several points about forfeiture that are apposite to the present case. At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor on sentence, since it places the offender is a worse position than he was before the commission of the offence. That is, forfeiture may have a punitive or deterrent effect. The sentencing principle of proportionality requires that the nature and extent of any forfeiture of property be considered in fixing sentence. It is necessary to consider whether the forfeiture will have a disproportionate or exceptional effect on the offender and may have a substantial deterrent effect.

111 As I see it, s 5(2A)(ab)(i) allows those principles to apply to the automatic forfeiture of the $825,000 interest in Easey Street.

112 In my view, automatic forfeiture of such a large interest is a very heavy extra penalty for Mr Siddique to pay for his offending. That additional penalty will have a disproportionate or exceptional effect on him and also will have a substantial deterrent effect. It was accepted by the Director that Mr Siddique has no assets of his own and no work, and that he is now living on the good graces of his wife and children. An illustration of just how heavy an additional penalty this represents is the fact that the maximum fine that could have been imposed, in addition to imprisonment, for an offence of obtaining a financial advantage by deception committed in late-2007 was about $132,000.[15] Yet the effective penalty on Mr Siddique is $825,000.

113 In addition, I have regard to Mr Siddique's co-operation with the authorities by ensuring the automatic forfeiture of $400,000 attributable to the Templestowe property. In my view, it is significant that he co-operated in the automatic forfeiture of that large sum of money in circumstances where there is no evidence that he received any of the funds obtained from the offending.

114 The sixth matter in mitigation is that, on the evidence before me, I am satisfied that Mr Siddique is in a parlous state of mental health. Further, I am satisfied that, in consequence, he will find prison very hard and that there is a significant risk that his mental health will deteriorate in prison. I am also very concerned that there is a significant risk that he would commit suicide or otherwise harm himself in prison.

115 On the plea, I received reports from psychiatrist Dr Nicholas Owens and psychologist Patrick Newton. Dr Owens is of the view that Mr Siddique is presenting with a range of symptoms consistent with a severe depressive episode. These symptoms have been present continuously since 2014, when he was charged. Dr Owens opines that, if incarcerated, Mr Siddique would be at risk of deliberate self-harm, including suicide. He also considers it likely that Mr Siddique's condition would deteriorate in prison, given separation from family, his age, lack of prior experience of prison and his statement that the only thing that would stop him from attempting suicide would be avoiding prison. It is Dr Owens's strong recommendation that, in the event that Mr Siddique is imprisoned, the prison mental health services should be notified of his psychiatric history so that he can receive the necessary treatment and observation. I agree.

116 Mr Newton makes similar observations in his report.

117 References from friends and family (some of whom are qualified in medicine or psychiatry) also make observations about Mr Siddique's depression and anxiety. Dr Don Senadipathy, an experienced forensic psychiatrist who also happens to be Mr Siddique's friend of 30 years, concluded his reference in this way:

I find now Aman to be a depressed man going through an emotional roller coaster. He is depressed, confused and overwhelmed by shame and haplessness. He is struggling to cope with what is happening to his wife and children. He dreads the prospect of imprisonment and what it would do [to] him and more so to his wife and the children. I share his fears.

118 In those circumstances, I think a good deal of mercy is due to Mr Siddique.

119 I also record that I heard viva voce evidence, and received a report, from Richard Vojlay, an optometrist. Since 2007, Mr Vojlay has been treating Mr Siddique for difficulties with his vision. As a result of Mr Siddique's particular affliction, keratoconus, he wears hard contact lenses that at times are uncomfortable and limit the periods he can concentrate. I accept that this difficulty may make a prison sentence more difficult than otherwise, but this is a very minor consideration when compared with his mental health.

120 The seventh matter in mitigation concerns the delay between the offending, charges, trial and sentence.

121 It is plain from the references and other material before me that Mr Siddique has suffered an enormous strain during the period since he was charged. Further, while he has been unable to work during that period, that is just another manifestation of that strain and his loss of reputation, even before conviction. It is not suggested that there has been any further offending during this period.

122 In those circumstances, I consider that the impact of delay is a significant matter in mitigation, particularly for a man who is now nearly 68.

123 The eighth mater to consider in mitigation is the risk of deportation faced by Mr Siddique.

124 Despite living here for over 30 years, Mr Siddique has never become an Australian citizen. If he is sentenced to a term of imprisonment of 12 months or more and if he is serving a sentence of imprisonment, on a full-time basis in a custodial institution, the relevant Minister must cancel Mr Siddique's visa,[16] which could lead to deportation. The Minister may revoke that decision upon representation.[17]

125 While it is hard to imagine that the Minister would not revoke such a decision in Mr Siddique's case, I accept that he may well find imprisonment more burdensome than others when there is uncertainty as to what stance the Minister might take. Accordingly, that is another consideration bearing on sentence, albeit comparatively minor.

126 Finally, I am satisfied that Mr Siddique has very good prospects of rehabilitation.

127 There are essentially four reasons for that conclusion. First, as I have said, at the age of 67, Mr Siddique has no criminal history and a long history of impeccable character. Secondly, like Mr Gant, he retains very strong ongoing family support. Thirdly, there are no matters pending. Fourthly, while it seems unlikely that he will work again in the short term, I am satisfied that, with the support of his family and friends, in the near future, he will pick himself up and contribute to the community again.

128 Those same factors drive me to the conclusion that there is no real risk that Mr Siddique would commit, or would be in a position to commit, an offence of this nature again.

129 In considering the appropriate sentences for both Mr Gant and Mr Siddique, I have had regard to the principles of parity among co-offenders. For the reasons I have given pertaining to both the offending and the respective mitigating circumstances, I consider that parity demands that significantly more lenient sentences should be imposed on Mr Siddique than on Mr Gant.

130 The key differences include the fact that Mr Gant received all of the funds, whereas Mr Siddique received none; that Mr Gant has some criminal history, albeit very modest, whereas Mr Siddique has none; that Mr Siddique will suffer substantial additional punishment because of automatic forfeiture of his property, when that consideration is inapplicable to Mr Gant; that Mr Siddique co-operated with the authorities by allowing automatic forfeiture of his property, when, again, that consideration is inapplicable to Mr Gant; that Mr Siddique is in a precarious mental state, whereas Mr Gant does not suffer the same affliction; and that Mr Siddique is somewhat older than Mr Gant.

131 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

132 In my view, general deterrence, just punishment and denunciation are very important considerations in the present case. Those in the community should understand that frauds of this type and magnitude are denounced by the courts and will result in prison sentences.

133 While specific deterrence must be given weight as well, I have given it less weight than otherwise on account of Mr Gant and Mr Siddique's previous good character, their age and prospects of rehabilitation, and the related conclusion that I think that there is no realistic risk that they will offend in this way in the future. Further, the sentences to be imposed as a result of the weight given to general deterrence, just punishment and denunciation will have the effect of deterring Mr Gant and Mr Siddique from further offending in any event.

134 Given those same factors, there is a lesser need than otherwise to give weight to protection of the community as an additional and separate sentencing purpose. Again, the community will be protected by the sentences produced as a result of the weight to be given to other sentencing purposes.

135 Rehabilitation remains an important sentencing purpose because their prospects of rehabilitation are so good.

136 In so far as I can determine them, I have had regard to current sentencing practices for deception offences generally.[18] That said, it is difficult to discern such practices because the circumstances of such offences vary so widely.

137 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. However, counsel were unable to direct me to any cases quite like the present one.

138 Perhaps the closest was R v Liberto & Liberto,[19] two sentences imposed by Judge R. G. Williams following a trial in the County Court for a series of art frauds perpetrated by a married couple. There were six offences of deception or attempted deception committed over a three-year period from 2002 to 2005. The paintings involved were valued collectively at over $300,000. The accused were in their mid-60s at sentence and had no prior convictions. Mrs Liberto was in ill-health. His Honour imposed on each offender individual sentences ranging from one to two years' imprisonment and, with cumulation, a total effective sentence of three years' imprisonment, and then suspended all but nine months of that sentence for a period of two years and three months.

139 As will be seen shortly, I think Mr Siddique is deserving of a similar sentence, whereas I think Mr Gant's sentence must be substantially longer.

140 In the end, because there are no sufficiently similar cases to discern a range of sentences for this particular type of deception, I am driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences, with no particular guidance from case comparisons.

141 That said, in sentencing, it is almost always difficult usefully to compare other cases in any event. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied.

142 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Sections 5(4) and (4C) contain similar provisions with respect to the issues of confinement and the possibility of the imposition of a community correction order ("CCO"). These provisions reflect the common law principle of parsimony. I have applied that principle and these provisions when considering the appropriate sentence in each case. I should add that I do not consider that a CCO would be an appropriate sentence for either Mr Gant or Mr Siddique for the offences of which they stand convicted.

145 Balancing all considerations as best I can, Mr Gant is convicted of each offence and sentenced as follows.

146 On Charge 1, concerning the Blue painting sold to Mr Pridham, Mr Gant is sentenced to four years' imprisonment.

147 On Charge 2, concerning Through the Window sought to be sold to Mr Hobbs, Mr Gant is sentenced to one year and six months' imprisonment.

148 On Charge 3, concerning the Orange painting sold to Mr Nasteski, Mr Gant is sentenced to two years and two months' imprisonment.

149 Having regard to the separate nature of the offences but the compressing effect of totality, I direct that four months of the sentence for the offence in Charge 2 and eight months of the sentence for the offence in Charge 3 be served cumulatively upon the sentence for the offence in Charge 1, which makes a total effective sentence of five years' imprisonment.

150 I fix a non-parole period of two years and six months.

151 This is a comparatively short non-parole period. While the mitigating factors, like the seriousness of the offending and sentencing principles, all impact on the individual sentences and the total effective sentence, those same matters, in combination, have caused me to fix this particular non-parole period. In particular, I regard this as an appropriate non-parole period particularly in light of Mr Gant's limited prior criminal history, positively good character and very good prospects of rehabilitation, the related conclusion that it is very unlikely that he would commit an offence of this nature again, as well as the hardship of delay and the extra-curial punishment he will suffer through loss of career, both of which are particularly significant for a man of 61.

152 I also consider that the individual sentences, the total effective sentence and the non-parole period give adequate weight to all of the sentencing purposes I discussed earlier.

153 Finally, pursuant to s 6J of the Sentencing Act, I direct that it be entered in the records of the Court that, in respect of each of the offences in Charges 1, 2 and 3, Mr Gant is sentenced as a continuing criminal enterprise offender for a continuing criminal enterprise offence.

155 Balancing all considerations as best I can, Mr Siddique is convicted of each offence and sentenced as follows.

156 On Charge 1, concerning the Blue painting sold to Mr Pridham, Mr Siddique is sentenced to two years and four months' imprisonment.

157 On Charge 2, concerning Through the Window sought to be sold to Mr Hobbs, Mr Siddique is sentenced to one year's imprisonment.

158 On Charge 3, concerning the Orange painting sold to Mr Nasteski, Mr Siddique is sentenced to one year and six months' imprisonment.

159 Having regard to the separate nature of the offences but the compressing effect of totality, I direct that three months of the sentence for the offence in Charge 2 and five months of the sentence for the offence in Charge 3 be served cumulatively upon the sentence for the offence in Charge 1, which makes a total effective sentence of three years' imprisonment.

160 Pursuant to s 27 of the Sentencing Act, which provision is now repealed but is still operative in this particular case (which is yet another pointer to the long delay between the offending and sentence), I am satisfied that it is desirable to suspend this sentence in part. In particular, I direct that, of the total effective sentence of three years' imprisonment, a period of ten months is to be served immediately and the remaining period of 26 months is suspended for three years.

161 This is a comparatively short period of immediate custody. Again, while the mitigating factors, like the seriousness of the offending and sentencing purposes, impact on the individual sentences and the total effective sentence, those matters, in combination, have caused me to conclude that it is desirable to suspend this sentence in part and to fix the period of immediate custody at ten months. In particular, I regard this as an appropriate course in light of Mr Siddique's unblemished history, impeccable character, the fact that he received none of the funds generated by the offending, the loss of $1.25 million of lawfully-acquired property through automatic forfeiture, his precarious mental health, the (perceived) risk of deportation, his excellent prospects of rehabilitation, and the impact of delay and the extra-curial punishment he will suffer through loss of his career, particularly in a man of nearly 68. In addition, because of Mr Siddique's fragile mental health and what I consider to be his tragic loss of face, there is an element of mercy in all aspects of the sentence, including my decision to suspend the sentence in part.

162 I also consider that the individual sentences, the total effective sentence and the order for partial suspension of the sentence give adequate weight to all of the sentencing purposes I discussed earlier, as well as the matters referred to in s 27(1A) of the Sentencing Act.

163 Pursuant to s 27(4), I direct that Mr Siddique's counsel or solicitors explain to him the purpose and effect of a partly-suspended sentence and the consequences that may follow if he were to commit, whether inside or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence.

164 I also repeat here that the differences between the sentences imposed on Mr Gant and Mr Siddique reflect my assessment of the relevant differences between their offending and their mitigating circumstances for the purposes of the application of the principles concerning parity of sentence between co-offenders.

165 Finally, pursuant to s 6J of the Sentencing Act, I direct that it be entered in the records of the Court that, in respect of each of the offences in Charges 1, 2 and 3, Mr Siddique is sentenced as a continuing criminal enterprise offender for a continuing criminal enterprise offence.

Part 2: Compensation applications

166 I turn now to the applications for compensation brought pursuant to s 86 of the Sentencing Act.

167 Section 86(1) provides that, "[i]f a court finds a person guilty of, or convicts a person of, an offence it may order the offender to pay to a person who has suffered loss or destruction of, or damage to, property as a result of the offence any compensation (not exceeding the value of the property lost, destroyed or damaged) that the court thinks fit".

168 Consequent upon the verdicts on Charge 1 on the indictment, Mr Pridham brings an application for an order that Mr Gant and Mr Siddique are jointly and severally liable to pay him compensation in the sum of $2.5 million.

169 In his affidavit filed on the application, Mr Pridham explained that, while the painting was insured, the insurer had advised that the policy does not include coverage for forged art works.

170 He also explained that, on 22 July 2011, he caused a statement of claim to be filed in the Supreme Court of New South Wales against Ms Archer and her company Anita Archer Fine Art Pty Ltd. In August 2013, the proceeding was dismissed with no order as to costs. He annexed the consent orders to the affidavit. Later, I was given a copy of a settlement deed, which included consent orders. I shall return to this document shortly.

171 There is no dispute that Mr Pridham suffered a loss of $2.5 million as a result of the offence of which Mr Gant and Mr Siddique stand convicted.

172 However, at least two issues arise which cause me to conclude that the application should be refused.

173 First, there is a good deal of uncertainty as to what, if anything, the civil proceedings in New South Wales determined, and between which parties. The deed shows that Mr Gant was joined as a cross-defendant, by Ms Archer, it seems. Thus, in so far as the proceedings were dismissed, a question arises as to whether they were dismissed against Mr Gant as well and, if so, whether that might create some sort of bar to the present application against him. While I accept that Mr Pridham received no compensation as a result of the civil proceedings, Mr Hannebery, who appeared for Mr Pridham on the application before me (but not in the matter in New South Wales), was not able to tell me what cause of action was alleged against Ms Archer or why it was dismissed. Nor did he seek to produce the pleadings or any other documents.

174 Section 86(8) of the Act provides that a "court must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers".

175 In my view, the facts relevant to the civil proceedings, which in turn may be relevant to resolution of this application, do not sufficiently appear from evidence given at the hearing or in the available documents. Accordingly, on that basis alone I think it is proper to refuse the application.

176 Further, the possible relevance of the civil proceedings in New South Wales raises issues too complex to be dealt with in an application like this. In R v Braham,[20] the Full Court (Young CJ, Gowans and Harris JJ), when speaking of a similar provision, said this:

... But we think that, for present purposes, it should be stated that it would be a proper exercise of the discretion to refuse to make an order where there was involved a complicated or extensive investigation into the conditions of its exercise or the circumstances to be regarded in exercising it. For example, if there were required to be undertaken a complicated or extensive inquiry in order to ascertain whether there had been a loss or destruction of or damage to property, or in order to ascertain whether it or part of it had arisen through or by means of the offence, or in order to determine what was the value of the property lost, destroyed or damaged, that would be a consideration proper to be regarded as a ground for refusing to make an order and leaving the matter to other processes. We should not, however, be understood as saying that the mere raising of an issue as to whether part of a loss or destruction or damage had been suffered through or by means of the offence, however tenuous the argument might be, would in itself be sufficient to justify refusal of an order. We would adopt the view taken of the operation of the related English provision that the machinery of a compensation order is intended for clear and simple cases since the civil rights of the victim remain. ...

177 While it might be said that concerns about the potential impact of the civil proceedings is a tenuous basis to refuse to make an order for compensation, the simple fact is that I do not think it would be appropriate to make such an order when there is not even sufficient material before me to know precisely what was determined in the other court. Further, I suspect that, were I to be given that material, it might then raise matters that do not fit within the notion that s 86 applications are intended for "clear and simple cases". Rather, it would be too complex.

178 A second issue arises in this way. In circumstances where there is evidence that Mr Gant received the proceeds of sale of the Blue painting (less Ms Archer's commission) and there is no evidence that Mr Siddique received any of those funds, Mr Siddique would have an interest in seeking contribution from Mr Gant if there were an order that they be jointly and severally liable for the whole sum. Similarly, he might otherwise wish to resist an order for joint and several liability on the same basis. The difficulty is that, in order properly to determine that issue, I would wish to hear evidence which, again, does not sufficiently appear from the evidence at trial. That, in turn, would become something far more complex than is appropriate for an application of this nature.

179 Accordingly, I refuse Mr Pridham's application.

180 I wish to make it clear, however, that this refusal is without prejudice to Mr Pridham's rights to pursue compensation through the civil courts.

181 I turn to Mr Playfoot's application. Consequent upon the verdicts on Charge 3 on the indictment, Mr Playfoot brings an application for an order that Mr Gant and Mr Siddique are jointly and severally liable to pay him compensation in the sum of $990,000.

182 Mr Smallwood, who appeared for Mr Playfoot, did not seek to file any material. Instead, he relied on the evidence given at trial in support of the application.

183 Again, there are at least two issues which cause me to conclude that the application should be refused.

184 The first is the same point, with necessary adaptation, that I just made in respect of the fact that Mr Siddique received none of the monies whereas Mr Gant received the net proceeds of sale (in respect of the Orange painting).

185 The second turns on the meaning of the phrase "as a result of the offence" and the evidence of Mr Playfoot's reasons for refunding Mr Nasteski. Put simply, while Mr Playfoot is out of pocket, it appears to me that that "loss" did not occur "as a result of the offence". Rather, Mr Playfoot repaid the money - and thereby caused himself a loss - because it was "good business practice ... [so as to] avoid... any risk to [his] own reputation". In other words, he had his own motivation for refunding the money.

186 Mr Wraight also submitted that, if there were any doubt about this, then the relevant facts do not sufficiently appear from evidence given at the hearing of the charge, such that s 86(8) is engaged again, and the application must be refused on that basis alone. I accept that submission.

187 Accordingly, I refuse Mr Playfoot's application.

188 Again, I wish to make it clear, however, that this refusal is without prejudice to Mr Playfoot's rights to pursue compensation through the civil courts.

Part 3: Applications to stay sentence

189 Finally, I turn to the applications, pursuant to s 309(2) of the Criminal Procedure Act 2009 (Vic), by Mr Gant and Mr Siddique, that the sentences I have just imposed be stayed pending appeal.

190 Section 309(1) provides that "[a] sentence is not stayed during the appeal period unless (a) this Act or any other Act otherwise provides; or (b) an order is made under sub-section (2)". Section 309(2) provides that "[t]he trial judge or, if a notice of appeal or notice of application for leave to appeal is filed, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so".

191 Mr Wraight and Mr van de Wiel have made it clear that, once sentenced, their clients will appeal against the guilty verdicts (at least) on the basis that they are unsafe.[21] They submit that it is obvious that those verdicts are unsafe, particularly in light of the evidence of Ms Milburn and Mr James and the related documentary evidence. They further submit that, if I am of the view that the verdicts are unsafe, it would be in the interests of justice to stay the sentences until the proposed applications for leave to appeal against conviction are determined by the Court of Appeal. Mr van de Wiel submits that Mr Siddique's fragile mental health is an additional factor justifying a stay.

192 Ms Borg opposes the applications. She submits that the verdicts were open. Further, she submits, rightly in my view, that, while the terms of s 309 refer simply to the "interests of justice", only in very rare and exceptional cases would it be in the interests of justice to order a stay of sentence. Were it otherwise, there might be a flood of unmeritorious applications following sentencing by trial judges. Further, as I understood her, Ms Borg's submission was that due respect would not be paid to jury verdicts if stays of sentence were granted by trial judges in anything other than very rare and exceptional cases. Again, I agree.

193 Ms Borg accepted, very fairly and quite properly, I think, that, if, contrary to her submission, I came to the view that a combination of concerns about the safety of the verdicts and Mr Siddique's fragile state caused me to order a stay in his matter, it would also be proper to order a stay in Mr Gant's matter, despite the absence of any equivalent concerns about his health.

194 For at least three reasons, each related to the others, a trial judge is reluctant to offer a view as to whether a guilty verdict is unsafe.

195 First, once there is a case to answer, it is a matter for the jury - not the trial judge - to determine whether the accused is guilty or not guilty. A trial judge can direct a verdict of not guilty but only if there is no case to answer.

196 Secondly, once a verdict of guilty has been delivered, it is for the Court of Appeal - not the trial judge - to determine whether that verdict is unsafe, if it is challenged.

197 The third reason is reflected in the judgment of Brennan J in Chamberlain v The Queen (No 1),[22] which concerned Lindy Chamberlain's application for bail pending determination of her application for special leave to appeal to the High Court:

But there is another factor of more general and more fundamental significance which militates against the granting of bail. Mrs Chamberlain challenges the verdict upon which her conviction and sentence are founded: if the verdict were to be set aside, the formal conviction and the sentence would be quashed; if the verdict stands, so must the conviction and sentence. To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately. In a serious case, where the prisoner's custodial sentence depends upon a jury's verdict (as it does when there is a conviction for murder and there is no discretion as to sentence) an application for bail before the verdict is set aside is in substance an application to suspend the effect of the verdict. To grant bail in such a case is to whittle away the finality of the jury's finding and to treat the verdict merely as a step in the process of appeal. The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.

198 All of that said, in this particular case, I am compelled to consider whether the verdicts are - or at least might be - unsafe, for two reasons. First, it is the principal basis for each application to stay the sentence and, accordingly, counsel have made submissions on the issue. Secondly, by force of s 309(2), I am compelled to consider whether I am satisfied that it is in the interests of justice to stay the sentence. Whatever my decision on the applications, my reasoning must be exposed for all to see, which necessarily requires me to express a view on the safety of the verdicts.

199 I turn now to the principal question raised on these applications.

200 For the reasons I gave earlier, I am satisfied that there is a powerful argument that the guilty verdicts are unsafe in light of the evidence of Ms Milburn and Mr James, the documentary evidence and, to a lesser extent, the opinion of Mr Morel in his report on the catalogue. That is not to say that there are no arguments to be put for the alternative view. There are. And there is more to the prosecution case than my necessarily incomplete summary of it in these reasons. All of this, I am sure, will be considered by the Court of Appeal when the time comes. But, in short, having sat through the trial and having reflected on all of the evidence closely, I still cannot see how it is possible, rationally, to exclude the hypothesis that the paintings existed in 1988. If that is correct, the verdicts must be unsafe.

201 While it should not be overstated, there is in fact more evidence that the paintings existed prior to March 2007, which is when the Brown painting was bought and then said to have been used as a template to create the three works. After the jury declined the Prasad invitation, counsel for Mr Siddique called two witnesses, one of whom was Dr Hartley. On many occasions in the mid-2000s, Dr Hartley had been to Mr Siddique's studio. Also on many occasions, he saw the Blue painting in Court leaning up against the stairs in the studio. He thought that was in about 2005 or 2006. In cross-examination, he conceded it could have been 2007.

202 There are several points to make about that evidence. First, whenever these events occurred, the evidence was that it occurred many times. The area against the stairs is an area open for all to see. Such behaviour is inconsistent with the prosecution theory that Mr Siddique was hiding the Blue painting in a private room.

203 Secondly, if Dr Hartley saw it there in 2005 or 2006, then that destroyed the prosecution case that the Blue painting was created after the purchase of the Brown painting in March 2007 and its delivery in April. That the three paintings were created after that time was central to the prosecution thesis, which is obviously why Dr Hartley was asked in cross-examination whether it might have been 2007.

204 Thirdly, that Dr Hartley might have seen the Blue painting against the stairs on multiple occasions in 2006 is also consistent with the evidence, that came from at least two other sources, that the Blue painting was in existence in mid-2006. The first piece of evidence came almost unnoticed from Ms Archer. She said that, in October 2006, Mr Gant had told her of the Blue painting and that, the next year, he mentioned that Mr Siddique had cleaned it. The second source is in Mr Siddique's order books, which were received in evidence. In an entry recorded on 14 July 2006, there is an order from Mr Gant to have Mr Siddique's company clean and varnish a "Brett Whitely Lavender Bay - Blue", with an approximate size of "1600 x 2500". The possibility of framing is also mentioned.

205 While the evidence of Dr Hartley alone would not compel the conclusion that the verdicts are unsafe, it is yet more evidence that adds to the powerful evidence from Ms Milburn, Mr James and Mr Morel that the paintings existed in 1988.

206 For those reasons, I am firmly of the view that it was not open on the evidence to exclude the reasonable possibility that the paintings existed in 1988. Accordingly, I think there is a compelling argument that the verdicts are unsafe.

207 I turn now to Mr Siddique's fragile mental state. I have summarized that evidence earlier and will not dwell on it now. Suffice it to say that I am very concerned that, if he is imprisoned, Mr Siddique's mental health will deteriorate even further and the risk of serious self-harm, even suicide, would be high.

208 I have watched him in Court over a long period. Consistently with the medical, psychiatric, psychological and lay evidence before me, he looks to me to be a broken man.

209 I turn now to my conclusions and proposed orders and undertakings.

210 I am satisfied that my concerns about the safety of the verdicts and Mr Siddique's health amount to sufficiently rare and exceptional circumstances to warrant the conclusion that it is in the interests of justice to stay the sentence I have imposed upon him.

211 For the avoidance of doubt, I consider that the power in s 309(2) for a trial judge to stay a sentence should be exercised only in very rare and exceptional cases. As I sit here at the moment, I can think of only one other case in which I have been involved in the law in which such an order might have been appropriate (and that was as counsel, not as a judge). I expect it would be extremely uncommon that a judge might form as strong a view about the safety of a verdict as I have in this case. Even rarer will be the case in which, fixed with such a view, it is appropriate to exercise the power in s 309(2). For it may still be the case that the respect that should be paid to a jury's verdict would outweigh other considerations. In the present case, I would not have ordered a stay but for the fact that not only am I very troubled about the safety of the verdicts but that I am even more concerned about the effect of sending to prison a depressed 68-year-old man of unblemished character who is suicidal at the thought, when, on my view of the evidence, he should not have been found guilty of the offences charged.

212 To adapt (and perhaps mangle) the words of Brennan J and Lord Atkin from two separate but related contexts, while "it is a mistake to regard the effect of [a jury's] verdict as contingent upon confirmation by an appellate court",[23] and therefore a good thing to pay the highest respect to such a verdict, in the end, "justice is better".[24] In my view, the interests of justice demand that I stay this sentence.

213 However, I do not intend to stay the sentence pending determination of the proposed application for leave to appeal, or appeal, against conviction. Instead, I consider that the better course is to stay the sentence pending determination of an application for bail in the Court of Appeal. I think this approach more appropriately respects both the jury's verdicts and the jurisdiction of the Court of Appeal to manage and determine cases before that Court.

214 Consistently with the concession of Ms Borg, I think it is appropriate to make the same order in Mr Gant's case, despite his health being good and despite the substantially longer sentence imposed on him. In all the circumstances, I think it would be unfair to do otherwise.

215 The making of these orders staying sentence will be contingent upon Mr Gant and Mr Siddique each giving certain undertakings to this Court. In particular, I will order, in respect of each accused, that the sentence imposed upon him this day is stayed until the determination of an application for bail by the Court of Appeal, provided he gives to this Court the following undertakings:

a) that, within 28 days, he will file with the Registry of the Court of Appeal, and serve on the Director, a notice of application for leave to appeal against conviction, a written case, an application for bail, any supporting affidavit and any other documents required by the Registry to initiate those applications;

b) that he will attend the Court of Appeal at the time and date allocated for the hearing of any such bail application and otherwise as directed by that Court;

c) that he will not leave the State of Victoria before any bail application is heard and determined by the Court of Appeal; and

d) that, should the application for bail be refused, abandoned or not made, or should the application for leave to appeal against conviction be abandoned or not made, upon such refusal or abandonment, or upon the failure to make both applications within 28 days, he will present himself to the Supreme Court to be taken into custody to commence serving his sentence.

216 I shall hear counsel on the precise terms of the proposed orders and undertakings.**

[1] Robert Hughes, The Spectacle of Skill: Selected Writings of Robert Hughes, Alfred A. Knopf (2015).

[2] Much later, in August 2013, when the painting had been returned to Mr Gant, a transaction did occur between him and Mr Drake. That transaction is the subject of Charge 5 on the indictment, which charge was severed after the close of the prosecution case and directed to be tried separately.

[3] When delivering these reasons for sentence, I said that the report was provided to police in September 2010. The evidence was that the catalogue was brought to Mr Morel's attention by Mr Siddique and Mr Gant one day at Easey Street. Mr Gant gave Mr Morel the catalogue for the purpose of preparing a report on it to identify the printing process. After examining it himself initially under magnification and then consulting Terry McGovern and Paul Ross at the International College of Printing and Graphic Arts, who were experts in lithographic printing, Mr Morel produced the report. He then provided it to Mr Gant in September 2010. On 21 September 2010, Mr Morel told the lead police investigator Sgt James MacDonald about the report. In particular, he said that the report "will throw a spanner in the works with regards to [Professor] Sloggett's findings". Sgt MacDonald did not try to obtain the catalogue from Mr Gant. Indeed, he did not even see it until the committal hearing in 2015.

[4] See R v Prasad (1979) 23 SASR 161.

[5] By use of the word "unsafe" in these reasons, I mean a verdict that is "unreasonable or cannot be supported having regard to the evidence". See s 274(1)(a) of the Criminal Procedure Act 2009 (Vic); M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[6] The charges the subject of the guilty verdicts were Charge 1 (an alleged deception upon Mr Pridham concerning the Blue painting), Charge 2 (an alleged attempted deception on Mr Hobbs concerning Through the Window) and Charge 3 (an alleged deception on Mr Nasteski's company concerning the Orange painting). There were two further charges on the indictment, both laid against Mr Gant alone. Charge 4 alleged that, in 2010, Mr Gant falsely represented to Guy Angwin that the Through the Window painting was a genuine Brett Whiteley painted in 1988 and that he thereby used the painting as collateral to defer repayment of a loan or debt he owed to Mr Angwin. Following a submission that there was no case to answer, I directed a verdict of not guilty on that charge. Charge 5 alleged that, in August 2013, Mr Gant falsely represented to Steven Drake that the Orange painting, which had been returned to Mr Gant by this time, was a genuine Brett Whiteley painted in 1988, and that in consequence he sold the painting to Mr Drake's company Cooline Systems Australia Pty Ltd and thereby obtained from the company $122,000. As I indicated in an earlier footnote, following submissions from counsel after the close of the prosecution case, I directed that that charge be severed from the indictment and tried separately.

[7] See s 5(2)(a), (c), (d), (daa) and (db) of the Sentencing Act 1991 (Vic).

[8] See ss 82(1) and 321P(1)(a) of the Crimes Act 1958 (Vic).

[9] All counsel agreed that this was so, by virtue of the amount of the financial advantage alleged in each charge and the terms of ss 6G, 6H and 6I, and clauses 1(e) and 2 of Schedule 1A, of the Sentencing Act 1991 (Vic), read with clauses 2(g) and 5 of Schedule 2 of the Confiscation Act 1997 (Vic).

[10] See ss 5(2)(e), (f) and (g) and 6 of the Sentencing Act 1991 (Vic).

[11] See s 15(1) of the Confiscation Act 1997 (Vic).

[12] Given the terms of s 30 of the Confiscation Act 1997 (Vic) - particularly the words "If a restraining order is made for a purpose referred to in s 15(1)(e) and ... damages are awarded in relation to that offence, the State must ensure that the order for ... damages is satisfied, to the value of the restrained property, before any other purpose for which the restraining order is made" - it is perhaps arguable that, despite the agreement struck by the Director, the State should hold these funds for the purposes of satisfying any order for damages that might be awarded to Mr Pridham and/or Mr Playfoot in civil proceedings, should such proceedings be taken. This was not a matter canvassed on the pleas in mitigation or on the compensation applications.

[13] It is odd that automatic forfeiture of lawfully-acquired property not used in the offending cannot be taken into account in sentencing (other than in the ways allowed for by s 5(2B) - see below), but this is the plain effect of s 5(2A)(ab) and (e) (see also, e.g., R v Filipovic & Geleski [2008] VSCA 14 at [77]- [84]).

[14] R v McLeod [2007] VSCA 183; (2007) 16 VR 682 at 685[14]-688[23] (Maxwell P, Redlich JA and Habersberger AJA).

[15] The maximum fine for the offence is 1,200 penalty units. In late-2007, a penalty unit was $110.12. Therefore, the maximum fine was 1,200 x $110.12 = $132,144. See s 82 of the Crimes Act 1958 (Vic), ss 109 and 110 of the Sentencing Act 1991 (Vic) and s 5(3) of the Monetary Units Act 2004 (Vic).

[16] See s 501(3A) of the Migration Act 1958 (Cth).

[17] See s 501CA of the Migration Act 1958 (Cth).

[18] See s 5(2)(b) of the Sentencing Act 1991 (Vic)

[19] R v Liberto & Liberto [2008] VCC 1372.

[20] R v Braham [1977] VicRp 11; [1977] VR 104 at 110.

[21] That is to say, they will argue, pursuant to s 274(1)(a) of the Criminal Procedure Act 2009 (Vic), that the verdicts are "unreasonable or cannot be supported having regard to the evidence".

[22] Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 520.

[23] Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 520.

[24] Ras Behari Lal v King-Emperor (1933) 102 LJPC 144 at 147, referred to by Starke J in Ex parte Ryan [1967] VicRp 56; [1967] VR 522 at 523.