Attorney-General v Saunders - [2000] TASSC 22

[2000] TASSC 22

CITATION: Attorney-General v Saunders [2000] TASSC 22

PARTIES: HER MAJESTY'S ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA
v
SAUNDERS, Jillian Caroline

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 144/1999
DELIVERED ON:  22 March 2000
DELIVERED AT:  Hobart
HEARING DATES:  9 March 2000
JUDGMENT OF:  Underwood, Crawford and Evans JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Sentence - Factors to be taken into account - Miscellaneous matters - Reparation and restitution by offender - Gross breach of trust by senior employee - Substantial restitution mainly from funds advanced by friend.

Boian (1997) 96 A Crim R 582; Mickelberg (1984) 13 A Crim R 365; R v O'Keefe [1959] Qd R 395; R v Whitnall (1993) 42 FCR 512, approved.
Aust Dig Criminal Law [844]

REPRESENTATION:

Counsel:
           Appellant:  T J Ellis and M S Cox
           Respondent:  J W Avery
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Avery Keal

Judgment Number: [2000] TASSC 22
Number of Paragraphs: 11

Serial No 22/2000
File No CCA 144/1999

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JILLIAN CAROLINE SAUNDERS

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
CRAWFORD J
EVANS J
22 March 2000

Orders of the Court

Appeal allowed.

Sentence of two years', six months' imprisonment quashed.

Substitute a sentence of imprisonment for three years', nine months' from 3 December 1999.

Serial No 22/2000
File No CCA 144/1999

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JILLIAN CAROLINE SAUNDERS

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
CRAWFORD J
EVANS J
22 March 2000

Upon her pleas of guilty to 66 counts of dishonestly obtaining a financial advantage contrary to the Criminal Code, s252A, the respondent was sentenced to imprisonment for two years, six months commencing on 3 December 1999. The Attorney-General appealed on two grounds, that the sentence was manifestly inadequate, having regard to all the circumstances of the case, and that the learned judge erred when he described the "eventual benefit received by the offender" as $132,000.

The respondent was employed by a credit union as a branch manager between 1990 and 1998. She managed branches at three locations. She was authorised to approve applications for personal loans and overdraft facilities without reference to other personnel. Her criminal activity, which involved misusing that authority for her personal benefit, commenced on 4 July 1991 and continued without substantial interruption for almost seven years until May 1998. For her dishonest purposes, she created 29 separate accounts and 66 separate personal loans or overdraft facilities. The 66 counts in the indictment concerned the establishment of an overdraft or personal loan in either a false name or in the name of a person who knew nothing of what she was doing. Although not directly the subject of any of the counts, she then took advantage of the loan or overdraft facilities by drawing funds from them, or by transferring funds from one account to another, on hundreds of occasions…

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 Attorney-General v Saunders

Details

AGLC: Attorney-General v Saunders [2000] TASSC 22
Case: [2000] TASSC 22
Decision Date: 22 March 2000

CaseChat Overview and Summary

The appeal before the Court of Criminal Appeal in Tasmania was brought by the Attorney-General against the sentence imposed on Saunders, Jillian Caroline, who had pleaded guilty to 66 counts of dishonestly obtaining a financial advantage. The Court was tasked with determining whether the sentence of two years and six months imprisonment was manifestly inadequate, and if the trial judge had erred in describing the benefit received by Saunders as $132,000.

The appeal hinged on two primary legal issues. The first was whether the sentence was manifestly inadequate, considering the gravity and duration of Saunders's criminal conduct, which spanned nearly seven years and involved substantial amounts of misappropriated funds. The second issue was whether the trial judge's characterisation of the benefit received by Saunders as $132,000 constituted an error, and if this mischaracterisation had any impact on the sentencing process.

The Court reviewed the trial judge's sentencing remarks and found that while the judge had acknowledged the substantial amount of funds misappropriated, he had not misconstrued the facts. However, the Court found that the trial judge did not adequately consider the severity of the crimes, which were gross breaches of trust by a senior employee. The Court further concluded that the sentence was inadequate and failed to appropriately reflect the seriousness of the offences. In light of the substantial restitution made, partially from funds provided by Saunders's partner, the Court determined that while restitution is a mitigating factor, it should not overly mitigate the punishment, especially when funded by a third party. The Court decided that the sentence should be increased to three years and nine months imprisonment, effective from 3 December 1999.

Orders