Director of Public Prosecutions (Acting) v Ohl
[2014] TASCCA 4
•19 June 2014
[2014] TASCCA 4
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions (Acting) v Ohl [2014] TASCCA 4
PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v
OHL, Norman Edward
FILE NO: 143/2014
DELIVERED ON: 19 June 2014
DELIVERED AT: Hobart
HEARING DATE: 2 June 2014
JUDGMENT OF: Blow CJ, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Two counts of dishonestly acquiring a financial advantage – Fraudulent acquisition of $200,000 and interest in a unit trust – Sentence of 14 months' imprisonment with six months thereof suspended.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: J Hartnett
Respondent: P E Barker SC, G Stevens
Solicitors:
Appellant: Acting Director of Public Prosecutions
Respondent: E R Henry Wherrett & Benjamin
Judgment Number: [2014] TASCCA 4
Number of paragraphs: 19
Serial No 4/2014
File No 143/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v NORMAN EDWARD OHL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PORTER J
WOOD J
19 June 2014
Orders of the Court
Appeal allowed.
Sentence of 14 months' imprisonment, with six months thereof suspended, set aside.
Respondent sentenced to 3 years 3 months' imprisonment with effect from 14 February 2014.
Respondent not to be eligible for parole until he has served one half of that sentence.
Serial No 4/2014
File No 143/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v NORMAN EDWARD OHL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
19 June 2014
This is a sentencing appeal. The respondent was found guilty by a jury on two charges of dishonestly acquiring a financial advantage, contrary to s252A of the Criminal Code. Tennent J convicted him and imposed a global sentence of 14 months' imprisonment, of which six months was suspended on condition that, for a period of three years from his release from prison, he was to commit no offence punishable by imprisonment. Her Honour also made orders under s68 of the Sentencing Act 1997 requiring the respondent to make payments of $110,000 and $90,000 by way of compensation. The Acting Director of Public Prosecutions has appealed. He contends that the sentence of 14 months' imprisonment, with six months thereof suspended, was manifestly inadequate.
The two charges related to two separate fraudulent transactions, with different victims. Count 1 concerned the acquisition of a property in Rokeby. The respondent operated a company named Let's Fix It Pty Ltd. A professional relationship and a friendship developed between the respondent and a Mr Fraser. Mr Fraser had a friend named Nanda. Mr Fraser, Mr Nanda and the respondent became involved in the purchase of some commercial properties. The three men set up a company named RKN Investments Pty Ltd. In July 2004 the three men agreed that that company would purchase the Rokeby property as an investment. On 29 July 2004 the respondent signed a contract for the purchase of the property for $250,000. In that contract he "and or nominee" was named as the purchaser. Mr Fraser gave evidence at the trial that the respondent told him in July 2004 that the purchase price was $350,000; that he did not see the contract at that stage; that the settlement date was 29 September; and that, as the settlement date approached, the respondent told him and Mr Nanda that the vendors would like two separate contracts, one for $250,000 for the building and the land, and one for $100,000 plus $10,000 GST for the chattels, equipment and fittings. Mr Fraser gave evidence that the respondent subsequently told him that he had paid the sum of $110,000 for the goods and chattels, financed by increasing his overdraft. No such payment had been made but the respondent obtained reimbursement. A cheque for $110,000 dated 1 February 2005 was drawn on the bank account of RKN Investments Pty Ltd in favour of Let's Fix It as trustee for the Ohl Family Trust. That cheque was signed by Mr Fraser and the respondent, taken by the respondent, and evidently presented and honoured. The verdict of the jury on count 1 indicates that they were satisfied beyond reasonable doubt that the respondent thereby committed the crime of dishonestly acquiring a financial advantage.
The particulars of count 1 were stated in the indictment as follows:
"NORMAN EDWARD OHL at Hobart in Tasmania between the 1st day of July 2004 and the 22nd day of September 2006 by deception, to wit falsely represented to Kevin Fraser and Raj Nanda and/or RKN Investments Pty Ltd, the purchase price and terms of a contract for the sale of property and chattels situated at 27 South Arm Road, Rokeby dishonestly acquired for himself and/or Let's Fix It Pty Ltd and/or the Ohl Family Trust a financial advantage, namely the crediting of Let's Fix It Pty Ltd and/or the Ohl Family Trust the sum of $110,000."
The second charge concerned a proposal to purchase and develop a property in Chapel Street, Glenorchy. The respondent's tax accountant, Mr Demeyer, the respondent, and two other investors formed a syndicate to purchase and develop the property. The purchase price of the property, including chattels, was $1.42 million. The syndicate members agreed that they would purchase the property with mortgage finance from a bank; that Mr Demeyer would contribute $100,000; that another investor would contribute $100,000; and that a third investor would contribute $200,000. The respondent told the others that he had purchased the plant and equipment at the site for $210,000 under a separate contract. That was untrue. The syndicate members agreed to form a unit trust, named the Chapel Street Unit Trust, with a company named Chapel Industries Pty Ltd as its trustee, and that the respondent would receive a one third interest in the unit trust in return for his asserted contribution of $210,000. In addition, $90,000 from the funds of the syndicate was paid to the respondent, with the concurrence of the syndicate members, for work that he said he had done in obtaining tenants for the premises and attending to "due diligence" requirements.
The jury's verdict of guilty on count 2 relates to the respondent's acquisition of his units in the unit trust and the payment of $90,000. It indicates that they were satisfied beyond reasonable doubt that he committed the crime of dishonestly acquiring a financial advantage by obtaining both the units and the payment of $90,000. The particulars of that charge read as follows:
"NORMAN EDWARD OHL at Hobart in Tasmania between the 1st day of December 2004 and the 22nd day of August 2006 by deception, to wit falsely represented to Dean Demeyer and/or Chapel Industries Pty Ltd that he had purchased the goods and chattels at 77 Chapel Street, Glenorchy for $210,000, dishonestly acquired for himself and/or as a Director of Chapel Industries Pty Ltd and/or Let's Fix It Pty Ltd and/or the Ohl Family Trust, a 33% equity interest in the property situated at 77 Chapel Road, 10 Units in Chapel Street Unit Trust and agent's fees of $90,000."
As a result of the respondent's acts of dishonesty, Mr Fraser and Mr Nanda have suffered a loss of $110,000, and the Chapel Street Unit Trust has suffered a loss of $90,000. Had the respondent's fraud in relation to the Glenorchy property not been detected, he would have received, through the unit trust, one third of the equity in the property, as well as one third of the net profits of the unit trust, calculated on the assumption that he had invested $210,000. He had invested nothing but, if the venture had been successful and his fraud had not been detected, he might have obtained hundreds of thousands of dollars for himself and/or an entity of his choice.
These crimes involved significant breaches of the trust placed in the respondent by four men who invested large sums, relying on him to be honest. Each crime involved a sustained course of criminal conduct.
The respondent was 54 years old when he was sentenced. The relevant mitigating factors, and my comments in relation to them, are as follows:
·The respondent had no prior convictions.
·He had an industrious work history.
·He was of otherwise good character, having made contributions to the community as an officer in a Rotary Club, and as an elder and member of the Uniting Church.
·His convictions would make it difficult for him to earn an income from commercial activities, and to obtain loans.
·By virtue of s206B(1)(b)(ii) of the Corporations Act 2001 (Cth), his convictions resulted in him becoming disqualified from managing corporations. Under s206B(2)(b), that disqualification will last from the date of the convictions until five years after his release from prison.
·There were inordinate delays between the detection of his crimes in 2006 and his trial in 2014. From the material before us, it is not clear when the police first became involved, but they were certainly taking statements late in 2008. The respondent was not charged until March 2012. There is no reason why the police investigation should have taken more than a matter of weeks. The investment transactions were not complex, and not many people needed to be asked to make statements. The respondent was committed for trial in May 2012, but a prosecutor considered it necessary to return the file to the police for completion. The trial was delayed for months as the result of a prosecutor becoming ill.
It is not always appropriate to take delay into account as a mitigating factor but, in my view, it was a factor that deserved some weight in this case. The respondent did not cause or contribute to the delay in any way. It is likely that he suffered some stress or anxiety as a result of knowing, for several years, that there was a possibility of prosecution and imprisonment. He evidently did not re-offend after committing these crimes. Delay is often regarded as very significant if an offender has shown rehabilitation, but in this case the offender was a man of generally good character.
In my view it is clear from a number of leading cases that the unnecessary delay of some years in investigating and prosecuting this case should be taken into account as a relevant mitigating factor: Prehn v R [2003] TASSC 55; R v Todd [1982] 2 NSWLR 517; R v Law (1995) 84 A Crim R 142; Miceli v R [1998] 4 VR 588; R v Schwabegger [1998] 4 VR 649; Cockerell v R (2001) 126 A Crim R 444; Williams v Tasmania [2014] TASCCA 2 at [17].
A number of common mitigating factors were absent in this case. The respondent did not plead guilty. There was no evidence of remorse. There was no restitution, either in relation to the $110,000 payment or the $90,000 payment, even in part, even though several years had elapsed. There was nothing to suggest that the respondent had either the means or the inclination to pay any money by way of restitution. There was no suggestion of any motive less reprehensible than greed.
When it is asserted that a sentence is manifestly inadequate, the appellate court needs to consider whether it is so "unreasonable or plainly unjust" as to give rise to an inference that there has been a failure to properly exercise the sentencing discretion: House v R (1935) 55 CLR 499; A, MC v Police (2008) 102 SASR 151 at [88]; Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31].
The principles relating to the taking into account of sentences imposed in other cases were discussed at length by Wood J in Director of Public Prosecutions v Harris [2013] TASCCA 5, and I see no need to restate them. I am conscious of the range of penalties that have been imposed in Tasmania in recent years for crimes of dishonesty involving sums in the vicinity of $200,000. Many of those sentences related to crimes involving embezzlement. Frauds on co-investors are fairly infrequent.
Having taken all of these matters into account, I think it is clear that the sentence of 14 months' imprisonment, with part thereof suspended, fell a very long way short of reflecting the seriousness of the respondent's crimes. He obtained $200,000 through breaches of trust, and set out to obtain a great deal more from the purchase and redevelopment of the Glenorchy property, in which he had invested nothing. The sentence is certainly not one that is likely to operate as a general deterrent. Having regard to all the circumstances of the offences and the offender, I consider that the sentence was manifestly inadequate.
At the hearing of the appeal, counsel for the respondent was invited to make submissions as to matters that might be relevant to re-sentencing, but did not wish to make any. Counsel for the appellant told us that the respondent had not paid any compensation pursuant to the orders made when he was sentenced, and that was not disputed. The respondent should be re-sentenced on the basis that no restitution has been made, and that the complainants' prospects of recovering any money from him are simply uncertain.
The shortest parole ineligibility period that may imposed is one half of the head sentence: Sentencing Act 1997, s17(3). Because the respondent has not been to prison before, because he appears not to have offended before or after the crimes in question, and because of the delay in bringing him to justice, I think an order should be made permitting parole after he has served half his sentence. These matters are, of course, amongst the matters relevant to the determination of an appropriate head sentence.
I would allow the appeal, set aside the head sentence of 14 months' imprisonment, with six months thereof suspended, substitute a sentence of 3 years 3 months' imprisonment with effect from 14 February 2014, and order that the respondent not be eligible for parole until he has served half of that sentence.
File No 143/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v NORMAN EDWARD OHL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
19 June 2014
I agree with the reasons for judgment of Blow CJ, and with the orders he proposes.
File No 143/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v NORMAN EDWARD OHL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
19 June 2014
I agree with the reasons of Blow CJ and the proposed orders.
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