HOLMES v LEWINSKI - [2005] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOLMES v LEWINSKI
Judgment of The Honourable Justice Besanko
18 March 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Appeal by Crown against sentence imposed by Magistrate - respondent charged with ten offences against s 37(2A) of the Insurance (Agents and Brokers) Act 1984 (Cth) - respondent pleaded guilty to the charges - Magistrate made an order under s 19B of the Crimes Act 1914 (Cth) discharging the respondent without proceeding to conviction - whether Magistrate erred in not recording convictions and imposing a sentence of imprisonment - where respondent operated an insurance business - where respondent received premiums from clients and used the premiums to pay business and personal expenses and for gambling - where respondent was in a position of trust yet engaged in a deliberate and sustained course of dishonest conduct - appeal allowed - orders made by Magistrate set aside and convictions recorded, but respondent released without passing sentence upon her entering into a bond to be of good behaviour and subject to other conditions.
Magistrates Court Act 1991 s 42; Insurance (Agents and Brokers) Act 1984 (Cth) s 37; Crimes Act 1914 (Cth) ss 16A, 19B, 20; Offenders Probation Act 1913 s 4, referred to.
Cobiac v Liddy (1969) 119 CLR 257; Jones v Morley (1981) 29 SASR 57; R v Wilton (1981) 28 SASR 362; Lanham v Brake (1983) 34 SASR 578; Commissioner of Taxation v Baffsky (2001) 192 ALR 92; House v The King (1936) 55 CLR 499; Uznanski v Searle (1981) 26 SASR 388; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Police v Cadd & Ors (1997) 69 SASR 150, considered.

HOLMES v LEWINSKI
[2005] SASC 96
Magistrates Appeal

BESANKO J: This is an appeal by the Commonwealth Director of Public Prosecutions (“the Commonwealth Director”) against a sentence imposed by a Magistrate. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
The respondent was charged on information with ten offences against s 37(2A) of the Insurance (Agents and Brokers) Act 1984 (Cth). At the relevant time, section 37(2A) of that Act made it an offence for a person who received money as agent of an insurer as a premium under a contract of insurance or a proposed contract of insurance to fail to pay the money to the insurer within 37 days after the day on which the money was received. At the relevant time the penalty for an offence against s 37(2A) and (4) of the Act was imprisonment for a period…

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 HOLMES v LEWINSKI

Details

AGLC: HOLMES v LEWINSKI [2005] SASC 96
Case: [2005] SASC 96
Decision Date: 18 March 2005

CaseChat Overview and Summary

Holmes v Lewinski involved an appeal by the Crown against the sentence imposed by a Magistrate on the respondent, who was charged with ten offences under section 37(2A) of the Insurance (Agents and Brokers) Act 1984 (Cth). The respondent pleaded guilty to the charges. The Magistrate made an order under section 19B of the Crimes Act 1914 (Cth) discharging the respondent without proceeding to conviction. The legal issue before the court was whether the Magistrate erred in not recording the convictions and imposing a sentence of imprisonment. The respondent had operated an insurance business, receiving premiums from clients and using the funds for business and personal expenses and gambling. Despite being in a position of trust, the respondent engaged in a deliberate and sustained course of dishonest conduct.

The court considered the nature and seriousness of the offences, which involved a deliberate and sustained course of dishonest conduct by a person in a position of trust. The Crown argued that such conduct typically warranted a sentence of imprisonment. However, the court acknowledged that the Magistrate had considered circumstances suggesting leniency and was impressed by them. The court was hesitant to interfere with the Magistrate's discretion but ultimately found that the appeal should be allowed. The orders made by the Magistrate were set aside, and convictions were recorded. However, the respondent was released without passing sentence upon her entering into a bond to be of good behaviour and subject to other conditions.

In conclusion, the appeal was allowed. The orders made by the Magistrate under section 19B of the Crimes Act were set aside, and convictions were recorded. However, it was deemed appropriate for the respondent to be released without passing sentence upon her entering into a bond to be of good behaviour and subject to other conditions. The court will hear from the parties regarding the precise form of the orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It seems to me that the fraudulent and deliberate nature of the offending committed over a period of time by a person occupying a position of trust would ordinarily call for a sentence of imprisonment albeit that the other circumstances of the present case might justify an order that the respondent be released forthwith upon her entering into a bond. However, as against that I am conscious of the fact that this is a prosecution appeal and the Magistrate was obviously impressed by and considered it appropriate to place weight on the circumstances suggesting leniency. In those circumstances, and not without some hesitation, I think it is appropriate to exercise the power in s 20(1)(a) of the Crimes Act. The respondent should be convicted of the ten offences but it is appropriate that she be released without passing sentence on her upon her entering into a bond to be of good behaviour and subject to other conditions.Conclusion The appeal must be allowed and the orders made by the Magistrate under s 19B of the Crimes Act should be set aside. Convictions must be recorded but I think it is appropriate that the respondent be released without passing sentence on her upon her entering into a bond to be of good behaviour and subject to other conditions. I will hear the parties as to the precise form of the orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.