ECKERT v POLICE - [2010] SASC 276

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ECKERT v POLICE
[2010] SASC 276
Judgment of The Honourable Justice White (ex tempore)
6 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE - SENTENCE
Appeal against sentence - appellant sentenced for 164 counts of fraudulent offending - appellant pleaded guilty to 49 counts of deception contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), 32 counts of dishonest dealing with documents contrary to s 140 of the CLCA and 83 counts of dishonest manipulation of machines contrary to s 141 of the CLCA - single sentence of three years with a non-parole period of two years imposed for all offences - Magistrate declined to suspend the sentence of imprisonment.
Appellant contended that non-parole period of two years was manifestly excessive - whether the Magistrate had erred by failing to take into account certain mitigatory considerations.
Held: Magistrate had not overlooked mitigatory considerations - the Magistrate had specifically referred to most of them - appropriate for both head sentence and non-parole period to relect seriousness of offending and need for general deterrence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 139, s 140, s 141; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Stewart (1984) 35 SASR 477; R v Creed (1985) 37 SASR 566, applied.
R v Sarandoglou [2010] SASC 190, considered.

ECKERT v POLICE
[2010] SASC 276
Magistrates Appeal (ex tempore)

WHITE J: Over a period of two years and five months, commencing in March 2007 and concluding in August 2009, the appellant embezzled a total of $126,494.34 from his employer. The embezzlement involved 164 separate fraudulent acts comprising three distinct types of offending.
During the period in which the offences were committed, the appellant was a full-time employee of Kyzac Pty Ltd which conducted the Ray White Real Estate agencies at Wallaroo and Port Lincoln. From May 2008, the appellant held the position of company finance manager.
The first group of offences comprised 49 offences and involved the appellant making out cheques to cash, recording them in his employer’s accounts as made out to a designated company or person, cashing the cheques and then retaining the proceeds for himself. Each of those offences was a contravention of s 139 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The second group comprised 32 offences and involved the appellant making false entries in his employer’s accounts so as to disguise a payment to himself or a payment to another for his own benefit. Each of those offences was a contravention of s 140 of the CLCA.
The third group comprised 83 offences and involved the appellant making electronic transfers from his employer’s bank account to his own or for some other personal purpose. Each of those offences was a contravention of s 141 of the CLCA.
The 164 offences were committed over a period of approximately 130 weeks, that is to say, at a rate of more than one each week. Accordingly, they amounted to a course of persistent dishonest conduct.
Each of the offences in the first two groups was punishable by imprisonment for up to 15 years. Each of the 83 offences in the third group was punishable by imprisonment for up to 10 years.
Acting under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), a magistrate sentenced the appellant to imprisonment for three years and imposed a non-parole period of two years. Had it not been for the appellant’s pleas of guilty, the Magistrate would have imposed a sentence of three years and nine months. He declined to suspend the sentence of three years and the appellant commenced serving it on 23 June 2010.
The appellant now appeals against that sentence. There is a single ground of appeal, namely, that the non-parole period of two years is manifestly excessive.
The appellant is now 51 years old. He attributes his offending to his pathological gambling and it seems that much, if not the majority, of the proceeds of his offending was used for that purpose. The appellant has gambled very substantial sums on poker machines.
The effects of the appellant’s offending on Mr and Mrs Page, who are the proprietors of the business of Kyzac, have been devastating. The appellant’s conduct meant that Kyzac was deprived of the funds necessary for its liquidity. Mr and Mrs Page struggled to address this problem by selling investments, closing offices, retrenching staff and modifying their own expenses. Each suffers from a sense of betrayal, humiliation and disillusionment with the realisation that they were defrauded by a man who they regarded and treated as a trustworthy friend and confidant, as well as a loyal employee. Their businesses have suffered a loss of reputation as, rightly or wrongly, the communities in which they operate now have reduced confidence in the integrity of those businesses.
Before his offending was detected the appellant did return the sum of $10,000 and, since it was detected, he has made restitution of a further $20,000. Nevertheless, as can be seen, his employer has still lost over $96,000.
The circumstances in which this Court will interfere with a sentencing decision of the kind made by the Magistrate in this case are well-known. A sentencing decision involves an exercise of a discretionary judgment. Accordingly, in order to persuade this Court to interfere with that judgment on appeal, the appellant must demonstrate that the Magistrate made some error of principle, or allowed extraneous or irrelevant matters to guide or affect his decision, or mistook the facts, or failed to take some material consideration into account. If an appellant is not able to demonstrate an error of these kinds, the Court will only interfere if it can be said that the sentence imposed by the Magistrate was manifestly excessive.[1]
[1] Markarian v The Queen [2005] HCA 25 at [25]; (2005) 228 CLR 357 at 370-371.
Mr Apps, counsel for the appellant, submitted that the Magistrate had erred by failing to take into account sufficiently a number of matters. He emphasised first the advantage which a long period of parole would have for the appellant’s ultimate rehabilitation and, accordingly, for the better protection in the long-term of the community. Mr Apps also emphasised aspects of the history taken by the forensic psychiatrist, Dr Raeside, and that the explanation for the appellant’s offending lay in his pathological gambling condition. In that respect, it is pertinent that since his offending the appellant has apparently ceased gambling and has attended at Gamblers Anonymous and the reports indicate that he has made positive steps towards controlling his pathological gambling.
Mr Apps also emphasised that the appellant is now unlikely ever to be able to return to his pre-offending occupation as an accountant and that by itself constitutes a significant punishment.
Finally, Mr Apps emphasised the better prospects for continued counselling addressing the appellant’s gambling problem if he remains outside a custodial institution and, accordingly, the better prospects for him avoiding relapses into uncontrolled gambling.
The submission on behalf of the appellant was, as I have said, that the Magistrate failed to give adequate weight to the considerations which I have just summarised.
In considering those submissions, it is appropriate to commence with some general points about sentencing for the kinds of offences committed by the appellant. The first is that deterrence is a particularly important element in the sentencing.
The second is that it is the experience of the Court that persons committing offences of the present kind are commonly people of apparently good character and good standing. It is those qualities which enable them to get to the positions of trust in which they commit their offences. That being so, courts generally take the view that little weight can be given to the previous good character of offenders, given that they made use of that good character to effect the deception of their victims.
The nature of the offending and the need for general deterrence usually means that good prospects of a successful rehabilitation and the Court’s satisfaction that there may be only slight prospects that the offender will offend again, will not have the same weight which is ordinarily attached to those considerations.
In R v Davies[2], the Court of Criminal Appeal considered the sentence imposed upon a 52-year-old chartered accountant who had committed 18 counts of fraudulent conversion. In the course of his reasons Cox J said:
[C]rimes of this sort are usually committed by respectable people of good standing – that is how they come to be in positions of trust which they are able to exploit to their own advantage. The deterrent effect of a sentence or non-parole period upon other people of good reputation, in a similar position and similarly tempted, would be substantially diminished if persons who commit a series of offences of this kind are still given substantial credit for their previous good character. Nor for the same reason should much allowance be made for the circumstance that, as is almost always the case, such a defendant is unlikely to offend again.[3]
[2] (1996) 88 A Crim R at 226.
[3] Ibid at 229.
In the same case, Doyle CJ made statements to a similar effect, saying:
In cases such as this, deterrence is an important aspect of sentencing. If credit is to be given for the matters identified by the sentencing judge and referred to by Cox J, the scope for adequate deterrence will be substantially eroded. This is the case because the matters identified by the sentencing judge and by Cox J – previous good character, unlikelihood of further offending and so on, are regularly found in cases such as this, as Cox J points out. The need for deterrence, and the fact that these features are routinely present in such cases, combine to mean that such a low non-parole period cannot be justified upon the basis of such matters in cases such as this.[4]
[4] Ibid at 231.
I note that in Davies, the sentencing judge had imposed a sentence of imprisonment of six years and had fixed a non-parole period of two and a half years. The Court of Criminal Appeal increased the non-parole period to four years which, as in this case, was two-thirds of the head sentence.
In relation to the importance of general deterrence, I also refer to what Debelle J said in R v Cavanagh[5]. That was a case involving 144 counts of fraudulent conversion, committed over a period of about four and a half years. Debelle J said:
[T]he moral blameworthiness in this kind of offending compares quite unfavourably with a typical multiple housebreaking. This kind of offending is premeditated, deliberate and repetitive. The fact that it involves deceit only serves to underline the criminal wilfulness of the conduct. In cases of this kind, the description of the crime as fraudulent conversion should not disguise the fact that it is a form of stealing – in this case, as in others, stealing on a grand scale. Deterrence therefore must be a predominant factor in the sentence.
Not infrequently the offender is a person with no previous convictions and of good standing in the community. In many instances the offender’s good character and reputation in the community is the reason why he has been permitted to occupy a position of trust … It is, nevertheless, necessary for the sentence to be sufficient to act as a general as well as a personal deterrent.[6]
[5] [1999] SASC 418.
[6] Ibid at [21]-[22].
On the basis of those authorities, it was appropriate for both the head sentence and the non-parole period in the present case to reflect the seriousness of the appellant’s offending and the need for general deterrence. The Magistrate did have a considerable discretion about the fixation of an appropriate non-parole period, but a prominent consideration in the fixing of an appropriate period had to be the element of deterrence.
In R v Stewart,[7] King CJ outlined the process by which a court fixes a non-parole period saying:
The first question which I think a judge has to ask himself on an application of this kind is: what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment?[8]
Later King CJ said:
An important factor to be considered by a judge in fixing a non-parole period in a case such as the present is the aspect of deterrence to other people who may be tempted to commit similar crimes.[9]
And in R v Creed,[10] King CJ said this about non-parole periods:
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. … The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment.[11]
[7] (1984) 35 SASR 477.
[8] Ibid at 477.
[9] Ibid at 479.
[10] (1985) 37 SASR 566.
[11] Ibid at 568.
I note that Doyle CJ, in the recent case of R v Sarandoglou,[12] referred with approval to those comments of King CJ.
[12] [2010] SASC 190.
Application of the principles which I have just mentioned to the present case indicates, in my opinion, that the appeal should be dismissed. The appellant abused his position of trust persistently over a long period. He used his good character and reputation in order to deceive his employer. He thereby obtained substantial sums of money.
The Magistrate did not overlook the mitigatory considerations emphasised on the appeal by counsel. He specifically referred to most of them. It is commendable that the appellant has made attempts to address his pathological gambling and that he has expressed contrition. However, the appellant’s offending did call for a significant custodial sentence and that he be required to serve a substantial time in custody.
In the light of the principles to which I have just referred, it cannot be said that the Magistrate’s determination that two years was the minimum period which he should serve in custody in order to achieve the punitive, deterrent and preventative purposes of punishment was excessive. Accordingly, I dismiss the appeal.