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…

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 ECKERT v POLICE

Details

AGLC: ECKERT v POLICE [2010] SASC 276
Case: [2010] SASC 276
Decision Date: 6 September 2010

CaseChat Overview and Summary

The case of Eckert v Police involves an appeal against the sentence imposed on the appellant, who was found guilty of multiple counts of fraudulent offences. The appellant was sentenced to a total of three years imprisonment with a non-parole period of two years, for committing 49 counts of deception, 32 counts of dishonest dealing with documents, and 83 counts of dishonest manipulation of machines under the Criminal Law Consolidation Act 1935 (SA). The Magistrate declined to suspend the sentence of imprisonment. The appellant argued that the non-parole period of two years was manifestly excessive and that the Magistrate had failed to take into account certain mitigating factors.

The primary legal issue before the court was whether the Magistrate had erred in setting the non-parole period of two years, and whether the Magistrate had failed to consider certain mitigating factors in determining the sentence. The court examined the Magistrate's reasoning and whether the sentence was appropriate in light of the seriousness of the offending and the need for general deterrence.

The court found that the Magistrate had not overlooked any mitigating factors, as most of them had been specifically referred to in the sentencing decision. The court further determined that the sentence was appropriate in light of the seriousness of the offending and the need for general deterrence. The appeal was dismissed, and the original sentence was upheld.

In conclusion, the court found that the Magistrate had appropriately considered the mitigating factors and set a non-parole period that reflected the gravity of the offences. The appeal against the sentence was dismissed, and the original sentence of three years imprisonment with a non-parole period of two years was upheld.

Orders