Davis v The Queen - [2002] WASCA 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DAVIS -v- THE QUEEN [2002] WASCA 298

CORAM: PARKER J
ROBERTS-SMITH J
SHEPPARD AUJ

HEARD: 8 OCTOBER 2002

DELIVERED : 30 OCTOBER 2002

FILE NO/S: CCA 91 of 2002

BETWEEN: DIANE LOUISE DAVIS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Conviction on plea of guilty to 12 counts of obtain benefit by fraud - Sentence of two years for each count to be served concurrently - Whether sentence manifestly excessive - Serious offences over a period of time - Mitigating factors - Whether Judge erred in not exercising discretion to suspend sentence

Legislation:

Criminal Code, s 409(1)(c)

Result:

Application for leave to appeal allowed
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Ms C A McKenzie
Respondent: Mr J Mactaggart

Solicitors:

Applicant: McKenzie Lalor
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Barrick (1985) 81 Cr App R 78
Greer v The Queen, unreported; SCt of WA; Library No 960173; 1 April 1996
Lowndes v The Queen (1999) 195 CLR 665
R v Birch (1993) 69 A Crim R 181
R v Burke (1994) 75 A Crim R 48

Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321
House v The Queen (1936) 55 CLR 499
R v Carreras (1992) 60 A Crim R 402
R v Latham (2000) 117 A Crim R 74

JUDGMENT OF THE COURT: In this matter, the applicant was convicted of 12 counts of gain benefit by fraud, contrary to s 409(1)(c) of the Criminal Code. She was sentenced to two years imprisonment on each count, to be served concurrently. She seeks leave to appeal against the severity of the sentences which were imposed.
At the time of the commission of the offences, the applicant was an employee of the Commonwealth Bank of Australia. She had been employed by the bank for just over 21 years. In that time, she worked in many areas of the bank, eventually holding the position of Manager Personal Lending. She had a sound knowledge of the day‑to‑day operations of the bank. On 23 September 1993, the applicant opened a Streamline Account with an overdraft limit of $2,000. On 6 December 1995, she opened a Staff Streamline Account with no overdraft facility attached. On 3 April 1998, the applicant and her husband applied for an Access Advantage line of credit account with an overdraft limit of $35,000. The application required the applicant to disclose, in writing, her full financial position detailing her assets and liabilities. Another staff member who was authorised to review and approve the applicant's application approved the application on the basis of the details disclosed.
Counts (1) to (3) and counts (7) to (12) of the indictment relate to the applicant unlawfully manipulating the bank's computer system. Between 6 April 1998 and 30 June 2000, she succeeded, without the bank's authority, in increasing the Access Advantage line of…

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 Davis v The Queen

Details

AGLC: Davis v The Queen [2002] WASCA 298
Case: [2002] WASCA 298
Decision Date: 30 OCTOBER 2002

CaseChat Overview and Summary

The applicant, who was a long-serving employee of the Commonwealth Bank of Australia, was convicted on 12 counts of obtaining a benefit by fraud and was sentenced to two years imprisonment for each count to be served concurrently. The applicant sought leave to appeal against the severity of the sentences imposed, arguing that they were manifestly excessive. The applicant had been an employee of the bank for over 21 years, working in various areas, and eventually holding the position of Manager Personal Lending. The applicant committed the offences over a period of time, manipulating the bank's computer system and making false statements in loan applications.

The legal issues that arose for determination in the appeal were whether the sentence imposed by the primary judge was manifestly excessive, and whether the judge erred in not exercising their discretion to suspend the sentence. The court considered the nature and seriousness of the offences, the mitigating factors, and the need for deterrence and denunciation. The court also considered the applicant's employment history, the absence of a criminal record, and the substantial financial loss caused to the bank.

The court found that the sentence imposed by the primary judge was not manifestly excessive. The court noted that the offences were serious and involved a breach of trust and abuse of position. The court also found that the primary judge had considered the mitigating factors and had exercised their discretion in imposing a sentence that was appropriate to the circumstances of the case. The court held that the sentence imposed was not so excessive as to shock the conscience of the court. The court dismissed the application for leave to appeal.

The court did not make any orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ROBERTS-SMITH J

JUDGMENT OF THE COURT: In this matter, the applicant was convicted of 12 counts of gain benefit by fraud, contrary to s 409(1)(c) of the Criminal Code. She was sentenced to two years imprisonment on each count, to be served concurrently. She seeks leave to appeal against the severity of the sentences which were imposed. At the time of the commission of the offences, the applicant was an employee of the Commonwealth Bank of Australia. She had been employed by the bank for just over 21 years. In that time, she worked in many areas of the bank, eventually holding the position of Manager Personal Lending. She had a sound knowledge of the day‑to‑day operations of the bank. On 23 September 1993, the applicant opened a Streamline Account with an overdraft limit of $2,000. On 6 December 1995, she opened a Staff Streamline Account with no overdraft facility attached. On 3 April 1998, the applicant and her husband applied for an Access Advantage line of credit account with an overdraft limit of $35,000. The application required the applicant to disclose, in writing, her full financial position detailing her assets and liabilities. Another staff member who was authorised to review and approve the applicant's application approved the application on the basis of the details disclosed. Counts (1) to (3) and counts (7) to (12) of the indictment relate to the applicant unlawfully manipulating the bank's computer system. Between 6 April 1998 and 30 June 2000, she succeeded, without the bank's authority, in increasing the Access Advantage line of credit account from $35,000 to $50,000; between 1 January 1999 and 16 October 2000, an unauthorised $5,000 increase in the Staff Streamline Account was made; between 1 January 1999 and 1 September 2000, the Streamline Account was increased by $3,000; between 29 September 2000 and 29 December 2000, an increase from $50,000 to $65,000 was made in the Access Advantage line of credit account; on 9 February 2001, that account was further increased from $65,000 to $80,000; on 16 May2001, it was increased from $80,000 to $100,000; on 2 August 2001, it was increased from $100,000 to $120,000; on 24 September 2001, it was increased from $120,000 to $150,000; and on 20 November 2001, an increase in that account of $150,000 to $175,000 was made. There were no further increases because, during the applicant's absence on holidays, the fraudulent conduct in which she had engaged was discovered by the bank. Count (4) concerned an application made by the applicant on 19 January 1999 for a Commonwealth Bank Finance Consumer Loan for $20,000. In her application, she failed to include details of the true extent of her liabilities, knowing that this would make her application look more attractive and improve her chances of having the loan approved. The loan was approved and $20,000 was made available to the applicant. Count (5) concerned an application made by the applicant on 3 March 1999 for a personal loan of $20,000. Again, she failed to include details of the full extent of her liabilities, knowing that this would make her application look more attractive. As a result, the loan was approved and $20,000 was made available to the applicant.

Ratio Decidendi

Legal Principle Established

Established by: ROBERTS-SMITH J

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