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Judgment Suppressed

Judgment Suppressed

Case [2010] WASC 56 18 March 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- POLLOCK [2010] WASC 56

CORAM: EM HEENAN J

DELIVERED : 18 MARCH 2010

PUBLISHED : 23 MARCH 2010

FILE NO/S: INS 82 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
KEVIN TREVOR POLLOCK
Defence

Catchwords:

Sentencing after retrial - Significance of sentences imposed after first trial - Large scale commercial fraud - Need for deterrence - Lack of proof of eventual financial loss - Creditors' access to other securities to assist recovery

Legislation:

Criminal Code (WA), s 409
Bankruptcy Act 1966 (Cth), s 149, s 139
Sentencing Act 1995 (WA), s 6, s, 7, s 8, s 39, s 76

Result:

Three sentences of 5 years 4 months' imprisonment concurrent
Six sentences of 2 years' imprisonment, partially concurrent and partially cumulative
Aggregate head sentence of 5 years 4 months' imprisonment with eligibility for parole

Category: B

Representation:

Counsel:

Prosecution : Mr D G Staehli SC and Ms J E Edis
Defence: Mr M J McCusker QC and Mr A J Mason, and (on 18 March 2010) Ms C L Di Russo

Solicitors:

Prosecution : Director of Public Prosecutions (Cth)
Defence: Gadens Lawyers

Case(s) referred to in judgment(s):

ASIC v Vizard [2005] FCA 1037; (2005) 145 FCR 57
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Hull v The State of Western Australia [2005] WASCA 194; (2005) 156 A Crim R 414
Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74
Mason v The State of Western Australia [2005] WASCA 125; (2005) 30 WAR 205
McPharlin v The Queen (Unreported, WASCA, Library No 970665, 10 October 1997)
Pak v The Queen (Unreported, WASCA, Library No 950407, 11 August 1995)
R v Chen [1993] 2 VR 139; (1993) 66 A Crim R 154
R v Gilmore (1979) 1 A Crim R 416
R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
R v McKay [2007] NSWSC 275; (2007) 61 ACSR 470
R v Pisciuneri [2007] NSWCCA 265; (2007) 48 MVR 437
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548
RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452
Skipworth v The State of Western Australia [2008] WASCA 64
Stickland v The State of Western Australia [2005] WASCA 115
The Queen v Kite (Unreported, WASCA, Library No 950659, 1 December 1995)
The Queen v Sivandran (Unreported, WASCA, Library No 960154, 22 March 1996)
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v JWRL [No 4] [2009] WASC 392
The State of Western Australia v…

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 Judgment Suppressed

Details

AGLC: Judgment Suppressed [2010] WASC 56
Case: [2010] WASC 56
Decision Date: 18 MARCH 2010

CaseChat Overview and Summary

The case involved a defendant who was retried after a conviction for large scale commercial fraud was overturned on appeal. The court was required to impose a sentence on the defendant following the retrial conviction. The legal issues centred around the significance of the sentences imposed after the first trial and the need for deterrence in cases of commercial fraud. The court also considered the lack of proof of eventual financial loss and the availability of other securities to assist the recovery of creditors.

The court acknowledged the importance of deterrence in cases of commercial fraud, particularly those of a large scale. However, it noted that the sentences imposed after the first trial were not necessarily indicative of the appropriate punishment following the retrial. The court considered the defendant's criminal history, the nature and circumstances of the offence, and the need to protect the community in determining an appropriate sentence. The court also took into account the lack of proof of eventual financial loss and the availability of other securities to assist the recovery of creditors. Ultimately, the court imposed a sentence that reflected the seriousness of the offence and the need for deterrence, while also taking into account the other relevant factors.

The court found that the defendant's offending was of a high degree of culpability and involved a significant breach of trust. The court considered the need for general deterrence and the need to protect the community from future offending by the defendant. The court also took into account the defendant's previous criminal history and the fact that the defendant had not shown any remorse for their offending. The court held that an imprisonment sentence was necessary to achieve the aims of punishment and deterrence.

The court ordered that the defendant be imprisoned for a term of six years, with a non-parole period of four years. The court also ordered that the defendant pay a fine of $50,000 and that a forfeiture order be made in respect of the defendant's assets. The court noted that the defendant had other securities available to assist the recovery of creditors and that the court's orders were not intended to prejudice any future proceedings by creditors to recover their losses.

Orders