FORSYTHE v Police

[2010] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

FORSYTHE v POLICE

[2010] SASC 214

Judgment of The Honourable Justice Kourakis

16 July 2010

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUDULENT CONVERSION BY PERSONS ENTRUSTED WITH PROPERTY - SENTENCE

Appeal against sentence – appellant pleaded guilty to 297 counts of engaging in dishonest conduct with an intention to facilitate the deception of another and to benefit himself – Magistrate imposed sentence of 7 years with non-parole period of 4 years – appellant argues Magistrate misinformed about factual circumstances and therefore sentenced on inaccurate factual foundation.

Held: Magistrate erroneously had regard to an irrelevant matter, namely a fallacious view of the way in which the offence was committed – that error significant enough to call for review of sentence – sentence was within proper sentencing range for this offending – appeal dismissed.

Criminal Law Consolidation Act 1935 s 5AA(1)(i), s 140(4), s 353(4)(b), referred to.
R v Powell (2001) 81 SASR 9, discussed.

FORSYTHE v POLICE
[2010] SASC 214

Magistrates Appeal

1. KOURAKIS J:     The appellant pleaded guilty in the Magistrates Court to 297 counts of engaging in dishonest conduct with an intention to facilitate the deception of another and to benefit himself contrary to s 140(4) of the Criminal Law Consolidation Act 1935.  The appellant’s frauds were committed against his employer, The Salvation Army.  The appellant came to be employed by The Salvation Army after he had received counselling assistance from its officers whilst serving a sentence of imprisonment for an earlier fraud.

2. At the time of the offences the appellant was the business manager of a division of The Salvation Army known as The Towards Independence Network of Services (the division).  The division provides accommodation and therapeutic services through a number of different premises.  The Salvation Army is responsible for maintaining those properties.  The repair, maintenance and supply of goods associated with those buildings, under the amount of $3,000, are paid from two accounts, the Bridge Program Administration Account and the Towards Independence Account.  As the business manager, the appellant was one of two signatories who jointly operated those accounts.  The other signatory was the appellant’s supervisor.  A practice was adopted in the division whereby the appellant’s supervisor signed blank cheques so that the business manager could more efficiently attend to paying invoices of less than $3,000.  The appellant committed the offences by inserting on the signed blank cheques a fictitious payee and an amount which his supervisor would not have authorised if he had known all of the circumstances.

3. The offences were committed between about November 2005 and May 2008.  The cheques were paid into the account of the appellant’s mother-in-law.  Several days after paying the amounts into his mother-in-law’s account, the appellant would use the internet to transfer the funds into his own account.

4. The maximum penalty for an offence under s 140(4) of the Criminal Law Consolidation Act 1935 is 15 years for an aggravated offence.  The offences were aggravated because…