Manolas v The Queen

[2018] NTCCA 12

CITATION:Manolas v The Queen [2018] NTCCA 12

PARTIES:  MANOLAS, George Theo

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:CA 3 of 2018

(21653294, 21627328 & 21713598)

DELIVERED:  10 July 2018

HEARING DATE:  29 May 2018

JUDGMENT OF:  Kelly, Blokland JJ and Graham AJ

CATCHWORDS:

APPEAL – Appeal against conviction – whether trial judge erred in direction

given to jury regarding intention to deprive – test to be applied in respect of

“regardless of the rights of the owners” – distinguishing rights and interests – no

importation of additional mental element – Crown not required to prove that accused

had no subjective regard to the interests of the owner – extended definition of

depriving describes necessary intention – appeal dismissed.

APPEAL – Appeal against conviction – whether trial judge erred in direction given to

jury regarding intention to deprive – reference in directions to “due and appropriate

regard” – entitlement of director managing company to be in control and possession

of company property distinguished from an outsider – in the circumstances the right

infringed was the company’s right to have its property applied for the company’s

purposes – reference to “due and appropriate regard” instructive in the circumstances

of the case – appeal dismissed.

APPEAL – Appeal against sentence – whether sentencing proceedings miscarried by

failure to determine basis on which the applicant intended to deprive the owner of the

property intention to permanently deprive or a deemed intention to deprive within the

extended definition – intention shifting over time – assessment of moral culpability by

reference to evidence – appeal dismissed.

APPEAL – Whether sentence manifestly excessive – principles applicable – appeal

dismissed.

CRIMINAL LAW – Stealing – intention to deprive – extended definition of depriving

– intention of the person appropriating property to treat the property as his own to

dispose of regardless of the rights of the person to whom it belongs – director

managing company’s business lent company property to another company for his own

purposes regardless of the rights of the company to have its property applied for its

own purposes – appeal dismissed.

SENTENCING – Director in position of trust – company monies transferred to another

company in debt – general approach to sentencing for offences involving breach of

trust – degree of trust – amount misappropriated – effect of offending – expectation of

imprisonment – appeal dismissed.

Criminal Code 1983 (NT) ss 209(1), 210(1)

R v Barry (Unreported, Supreme Court of the Northern Territory, Kelly J, 9 June 2017), R v Bird (1988) 56 NTR 17, R v Fernandes [1996] 1 Cr App R 175, R v Rice (Unreported, Court of Criminal Appeal (NSW), 28 July 1978), The Queen v Gregurke [2014] NTCCA 11, applied.

REPRESENTATION:

Counsel:

Appellant:S Odgers SC

Respondent:  D Morters

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  21

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Manolas v The Queen [2018] NTCCA 12

No. CA 3 of 2018 (21653294, 21627328 & 21713598)

BETWEEN:

GEORGE THEO MANOLAS

Appellant

AND:

THE QUEEN

Respondent

CORAM:     KELLY, BLOKLAND JJ & GRAHAM AJ

REASONS FOR JUDGMENT

(Delivered 10 July 2018)

THE COURT:

1. The appellant was charged with 20 counts of stealing property contrary to s 210(1) of the Northern Territory Criminal Code. He entered pleas of not guilty and was found guilty of all 20 charges following a trial by jury in November 2017. He was sentenced to an aggregate sentence of imprisonment for six years with a non-parole period of three years, commencing on 6 November 2017.

2. Many of the facts were not in dispute at the trial. The appellant was a 50% shareholder and director of a company named Coronation Drive (NT) Pty Ltd (“Coronation Drive”). (The other 50% of Coronation Drive was owned by a company wholly owned by another individual.) Coronation Drive owned a business called Bar Zushi which was managed by the appellant.

3. The appellant was also a shareholder and director of a company named One Hundred and Fifty One Pty Ltd which traded as a franchise bookstore business called Dymocks Casuarina (“Dymocks”).

4. Between April 2010 and November 2013, the appellant used money the property of Coronation Drive to assist the Dymocks business, which was in financial difficulties. Although this money was appropriated in different amounts and in different ways over this period of time, the effect of what the appellant did was to transfer Coronation Drive money to the benefit of Dymocks.

5. The appellant did not deny that he did this. He gave evidence at his trial, in which he admitted transferring Coronation Drive money to Dymocks and not informing the other director of Coronation Drive. However, he asserted that all of these individual transfers were “a loan” and that, at the time he made those transfers, he intended that the money would be paid back to Coronation Drive at some future time. He testified that he expected that the Dymocks business would “turn around” and he would be able to refund the money from Dymocks income or the proceeds of a sale of Dymocks. He also testified that he believed that his 50% shareholding in Coronation Drive was “security” over the money taken from Coronation Drive in that, if the money could not be repaid from Dymocks, it could be recovered from the sale of his shareholding in Coronation Drive. He also testified that he believed that if Dymocks collapsed then it would have an adverse effect on Coronation Drive because if Dymocks went down and he became bankrupt then his shares would be taken, he would not be in a position to manage the business and (he asserted) his fellow director was not capable of doing so. That would mean the end of the Bar Zushi business to the financial detriment of Coronation Drive. In that way, he said he was looking after the interests of both companies.

6. The appellant has appealed against his convictions on the ground that the trial judge erred in respect of the directions given to the jury regarding the element of intention to deprive.

7. The term “steals” is relevantly defined in s 209(1) Criminal Code:

   “steals” means unlawfully appropriates property of another with the intention of depriving that person of it …

8. Section 209(1) Criminal Code defines “depriving”:

   “depriving” means permanently depriving and appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as his own to dispose of (including to dispose of by lending or under a condition as to its return that he may not be able to perform) regardless of the rights of the person to whom it belongs.

   This provision has the effect that an owner of property may be “deprived” of it in two different ways:

   (a)   where the owner is permanently deprived of the property, or

   (b)   where the property is appropriated or borrowed by someone who does not intend to permanently deprive the owner of the property but intends “to treat the property as his own to dispose of … regardless of the rights of” the owner, for example, by lending it to another person.

9. The appellant has no complaint about the trial judge’s summing up on the first aspect of the definition of stealing – intending to permanently deprive the owner of the property. However, the appellant contends that his Honour erred in his summing up in relation to the second aspect of the definition – where there is no intention to permanently deprive the owner of the property but an appropriation or borrowing of the property by the accused with an intention to treat the property as his own to dispose of (including by lending it to another) regardless of the rights of the owner.

10. The trial judge summarised the defence case as being that the appellant believed that the interests of Coronation Drive “were closely aligned” with the interests of Dymocks in that, “if Dymocks failed”, “Bar Zushi (the business owned by Coronation Drive) would go down as well” because the appellant would no longer be able to manage that business. Then his Honour gave the following directions:

    The issue is whether he intended to treat the property as his own to dispose of, regardless of the rights of the company. Now, because it’s a criminal trial and because the prosecution bears the onus of proof, the prosecution, for the purposes of 11.2[1], has to satisfy you beyond reasonable doubt that he did not have - that is, Mr Manolas did not have due or, that is, appropriate regard, for the rights of Coronation Drive as the owner of the property that was transferred. It is the rights of Coronation Drive’s owner that the prosecution has to prove that the accused did not have appropriate regard to.

    Now, note the explanation of what a right is or what rights include in par 13 of the aide-memoire; the legal right and entitlement to have the property applied for its own company purposes. Now, the prosecution does not have to prove that the accused did not make a subjective assessment and somehow took into account in that assessment the interests of Coronation Drive as he saw them. That is not what the prosecution has to prove beyond reasonable doubt.

    The prosecution has to prove, to succeed on this prosecution, that the accused did not have appropriate regard for the rights of the company as owner of the property. It is the ownership rights of the company that 11.2 is concerned with.

11. The appellant contends that the trial judge erred in the underlined portions of the summing up and that, contrary to what the judge directed the jury, the prosecution did have to prove that “the accused did not make a subjective assessment and somehow took into account in that assessment the interests of Coronation Drive as he saw them”. The appellant contended that the second aspect of the definition of stealing would be established only if the appellant acted “regardless” of the rights (or interests) of Coronation Drive: that is, if he acted paying no regard at all to the rights of Coronation Drive. On the hearing of the appeal, counsel for the appellant clarified this. He contended that as long as a person has some regard to the interests of the owner of the property, he cannot be said to intend to treat the property as his own to dispose of regardless of the rights of the owner. Counsel made it clear that this was intended as a general proposition, not confined to the peculiar circumstances of the appellant’s case.

12. We do not accept that submission for two reasons.

    (a)It conflates two separate concepts – that of “rights” and “interests”. A person can act without regard to the rights of someone while believing they are acting in their interests. (Examples spring readily to mind: depriving an adult child of his or her liberty to rescue him or her from a cult – or a relationship – which the parents think is destructive; taking a person’s cigarettes and lighter in the belief that it is in his interests to stop smoking; arranging for the sale of an elderly, non-senile, parent’s home, tricking them into signing documents, in the belief that it is in the parent’s interest to go into to a nursing home.) If an accused borrows or appropriates property with an intention to “treat the property as his own to dispose of … regardless of the rights of the owner”, then that person is guilty of stealing within the second aspect of the definition, whether or not he believes it is in the interests of the owner of that property for him to do so. The definition explicitly gives as an example of such a disposition lending the property to another person.

    (b)Second, the appellant’s contention depends upon an acceptance of the proposition that the words “regardless of the rights of the owner” imports a superadded mental element and is not just a part of the description of the relevant intention. We do not accept that proposition. The words in the definition are “appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as his own to dispose of … regardless of the rights of the person to whom it belongs.” This means no more than an intention to treat the property as one’s own to dispose of notwithstanding the rights of the owner. The use of the word “regardless” rather than a synonym like “notwithstanding” does not import an added mental element. It does not mean “having no subjective regard to” and does not impose on the prosecution an obligation to prove beyond reasonable doubt that the accused gave no thought at all to either the rights or interests of the owner of the property. The trial judge was correct to direct the jury that “the prosecution does not have to prove that the accused did not make a subjective assessment and somehow took into account in that assessment the interests of Coronation Drive as he saw them.”

13. The appellant contended that unless the phrase “regardless of the rights of the owner” imported into the definition an added requirement that the prosecution prove that the accused had no subjective regard to the interests of the owner, the phrase would have no work to do. We do not agree. It seems plain to us that the extended definition of “depriving” contains within it a composite description of the necessary intention: an intention “to treat the property as his own to dispose of … regardless of the rights of the person to whom it belongs”. Further, that part of the description of the requisite intention “regardless of the rights of the person to whom the property belongs” assists by focusing attention on the relevant rights which an accused person intends to infringe which may be necessary in the not uncommon cases of stealing by an employee (or in this case a director/ manager) in which the accused maybe in a position to lawfully deal with the property of another in certain ways.[2]

14. The appellant’s other contention was that the use of the words “due” and “appropriate” in the directions may have misled the jury regarding the alternative basis for establishing intention to deprive by conveying that, even if the appellant did pay some regard to the interests of Coronation Drive, he would still be guilty if he did not have “appropriate” regard for those interests. It would permit the jury to find the appellant guilty even if the jury considered it reasonably possible that the appellant did (subjectively) believe that advancing the interests of Dymocks would also advance the interests of Coronation Drive or, at least, protect Coronation drive from the adverse consequences of Dymocks failing.

15. As we have already rejected the appellant’s contentions (set out above) concerning the construction of the definition of “depriving” (and, hence, stealing), in the normal case of an “outsider” appropriating the property of another, that submission, too, would necessarily fail – even though, in such a case, the words “due” and “appropriate” would have been unnecessary.

16. However, the circumstances of this case require further analysis. The appellant was not an outsider; he was a director of Coronation Drive and managed its business (Bar Zushi). It was his duty to manage the business in the interests of Coronation Drive and to apply the property of Coronation Drive for the purposes of that company. That is why the trial judge phrased the aide-memoire the way he did in paragraphs 11 to 13. Those paragraphs read as follows.

    11.  In order to prove that the accused ‘intended to deprive’ the Company of its property, the prosecution must prove, beyond reasonable doubt, one of 11.1 or 11.2:

    …..

    11.2 Without meaning the Company to permanently lose the property, the accused intended to treat the property as his own to dispose of regardless of the rights of the Company.

    12.  In relation to 11.2, “to dispose of” includes to dispose of by lending.

    13.  Further in relation to 11.2, the words “regardless of the rights of the Company” mean without due regard or consideration for the rights of the Company as owner of the property.  In this context, the Company had the legal right and entitlement to have its property applied for (its own) company purposes.

17. A director (or at least a director such as the appellant who was managing the company’s business), has the power and the right to be in possession and control of the company’s property and, in certain circumstances, to dispose of it, provided any such disposition is for the purposes of the company. Hence the wording of paragraph 13 of the aide-memoir.

18. In those special circumstances, the relevant intention is more complex and despite the fact that, in the case of a stranger, any subjective belief in the accused that he may have been acting in the interests of the owner would be irrelevant, in this case the focus must have been on whether it was reasonably possible that the appellant intended to dispose of the property in the manner in which he did for the company’s purposes.

19. In the case of an outsider appropriating the property of (say) a company with the intention of lending it to a third party, it would not have been necessary to add the phrase “due regard or consideration” to the aide-memoire or to use the expression “due … and appropriate regard” in the directions to the jury. Any appropriation of property by an outsider with the intention of treating the property as his own (including by lending it to another), would amount to stealing. Presumably the words “due regard or consideration to the rights of the company” were inserted into the aide-memoire and the expression “due … or appropriate regard” were used by the trial judge in the summing up because if the appellant (as a director managing the company’s business) had loaned the Company’s property to a third party for the Company’s own purposes, he would not have been treating it as his own to dispose of regardless of the rights of the Company. Presumably also, that is why the relevant rights of the owner were described in the way they were in paragraph 13 of the aide-memoire as: “In this context, the Company had the legal right and entitlement to have its property applied for (its own) company purposes.”

20. In the circumstances of this case, I do not think that the addition of the words “due … or appropriate regard” were apt to mislead the jury. In my view the trial judge’s directions were appropriate. The jury were correctly directed that there was no superadded duty on the prosecution to prove that the accused did not make a subjective assessment and somehow took into account in that assessment the interests of Coronation Drive as he saw them. Further, they were correctly directed in the aide-memoire to the relevant consideration: whether or not the prosecution had proved that, in lending the company’s property to Dymocks, the appellant intended to treat it as his own to dispose of regardless of Coronation Drive’s right to have that property applied for its own company purposes. Both counsel at the trial agreed to the contents of the aid memoire and neither requested a redirection on that part of the summing up now objected to by the appellant.

21. We would dismiss the appeal.

    Appeal against sentence

22. The appellant was found guilty of 20 separate offences of stealing, each carrying a maximum penalty of seven years imprisonment. The trial judge imposed an aggregate sentence of imprisonment for six years with a non-parole period of three years.

23. The appellant has appealed against this sentence on two grounds.

    (a)The sentencing proceedings miscarried because the learned sentencing judge failed to determine the basis on which the appellant intended to deprive the owner of the property.

    (b)The sentence is manifestly excessive.

1. In relation to ground 1, the appellant argued that it was necessary for the sentencing judge to make a finding as to whether the appellant intended to permanently deprive Coronation Drive of the money or whether he intended to treat the money as his own to dispose of regardless of the rights of the owner; and further that it was necessary for the judge to make a finding as to whether the appellant ever intended that the money he took from Coronation Drive would eventually be paid back to Coronation Drive. (These two propositions amount to the same thing. If he intended to permanently deprive Coronation Drive of the money then ipso facto he could not have intended that it ever be repaid.)

2. The appellant submitted that this finding was necessary for a proper assessment of the appellant’s moral culpability and that his Honour failed to make the relevant finding and, hence, failed to make a proper assessment of the appellant’s moral culpability. We do not agree.

3. The appellant’s argument in relation to Ground 1 is based on the following portion of the sentencing remarks:

   Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that you intended to deprive Coronation Drive of its property. In the circumstances, I do not need to make a finding beyond reasonable doubt as to whether your intention to deprive was an ‘intention to permanently deprive’ or a deemed intention to deprive within the extended definition.

4. However, these remarks were followed by a detailed analysis of what the appellant had actually done and his attendant moral culpability. His Honour said: “In giving evidence, you sought to characterise the transfers of money as loans. However, they were not loans in the usual sense, for a number of reasons,” and proceeded to set out those reasons in some detail, concluding:

   My conclusion is that, although each transfer created a corresponding liability in you or in Dymocks Casuarina to repay the relevant amount to Coronation Drive, the transfers were not loans. The accountants may have treated some of the transfers as loans in preparing the financial statements, but they were not. The use by you of the word 'loan' was an attempt to legitimise what was in reality, misappropriation.

5. Later, his Honour said:

   In giving evidence, you attempted to convey to the jury that you expected that the misappropriated monies could be repaid. Initially, you had hopes that Dymocks might be able to turn things around and repay the loans, but, if that did not happen, your expectation was that Bar Zushi would continue to increase its sales and profits and that, because of your ownership of 50 percent of the shares in Coronation Drive, you had sufficient equity to stand as security for the repayment of any loans.

   Mr Manolas, your evidence raised a number of difficulties.

   No doubt you were under considerable financial pressure when you started to misappropriate money. Dymocks was caught in adverse trading circumstances and was unable to pay its debts as they fell due. Notwithstanding your expressed optimism that Dymocks’ financial situation would improve, the fact that there was never any leftover money to repay the monies stolen from Coronation Drive must have been obvious to you. Every dollar which Dymocks received in sales was needed to pay creditors and you allocated nothing to repay Coronation Drive.

   As time went on you must have realised that Dymocks was never going to be able to repay the money and yet you kept stealing to give to Dymocks or its creditors. You may have hoped that you would be able to make amends and that your interest in the Bar Zushi business, derived through your shareholding in Coronation Drive, would somehow enable you to pay back the stolen monies. However, if you had that hope, it came to nothing.

6. Still later, his Honour said:

   It is possible that, once you started to utilise the monies of Coronation Drive for the purposes of your other company, you buried your head in the sand and did not bother to keep count; that is, keep count of the monies being transferred. However, it seems to me that it is unlikely. You were in charge of the finances of both companies and you must have had a very good idea, as time went on, that the total of the money transferred has reached several hundreds of thousands. Indeed, you must have known the extent or approximate extent of your misappropriation of monies when you and your co-director were forced to borrow $250,000 from Kevin Blacker in May 2014.

7. His Honour concluded his detailed assessment of the appellant’s moral culpability as follows:

   Your resort to the bank account of Coronation Drive in order to prop up Dymocks Casuarina was a most egregious example of a director treating company property as his own, to dispose of in complete disregard for the rights of the company to have its property applied for proper company purposes.

   There are particular aspects of high moral culpability in your offending, in addition to the fact of stealing itself: (1) as mentioned, the breach of fiduciary duty, (2) the deceit of your co-director, (3) the effect of your conduct on the company, including the double jeopardising of the interests of Coronation Drive when it was forced to borrow monies, and pay interest on such loans, which it would not have needed to do had you honestly and faithfully discharged your duties as a director, (4) the period of time, more than three years, over which your dishonesty continued, (5) the fact that you did not repay any of the stolen money, and (6) the effect of your conduct on your co-director, who was left to deal with the unfavourable financial situation after your departure.

8. In the passages set out above, his Honour carefully and appropriately analysed the appellant’s moral culpability by reference to the actual evidence. He clearly found that there was no realistic prospect of the misappropriated money ever being repaid and that the appellant must have been aware of this even if, initially, he may have had some hope that the money would eventually, in some way, be repaid. In doing so he gave the appellant the benefit of the doubt that he may initially have had some hope that the stolen money could be repaid. A formal finding as to whether the appellant intended to permanently deprive Coronation Drive of the money or a deemed intention to deprive within the extended definition would probably not have been possible. On the analysis performed by the sentencing judge, it is quite possible that the intention changed over time as the appellant became more clearly aware that it would not be possible to repay the money. A judge is entitled to say, in respect of some aspects of an offender’s behaviour, knowledge or intention, “I don’t know.” Moreover such a formal finding would not have assisted the judge’s analysis of the evidence or further informed his Honour’s assessment of the appellant’s moral culpability.

9. Ground 1 of the appeal against sentence must fail.

10. In Ground 2, the appellant argued that if the sentencing judge did not proceed on the basis that the appellant had the intention (or hope) that the money would be repaid, the sentence was, as a result, manifestly excessive. We disagree.

11. It seems to us that the sentencing judge’s findings as to the appellant’s high moral culpability were open on the evidence. We agree with the respondent’s submission that the appellant’s behaviour, as described in the sentencing remarks, is not different in kind from the common case of an employee stealing money from his employer over a period of time to support a gambling habit. In both cases, the thief begins with a hope that he will be able to repay the money, comes to a realisation that there is no reasonable prospect of that happening, and still persists in his dishonest conduct.

12. In written submissions, the respondent said:

    His Honour was referred to and took into account recent sentencing decisions such as Barry and Gregurke both of which applied the principle established in R v Bird (1988) 56 NTR 17 that frauds involving breaches of trust will predominantly focus on the object of stern deterrence.

13. Ms Gregurke stole nearly all of the life’s savings of a vulnerable old lady she was entrusted to care for in gross breach of trust over an extended period of time and gambled the money away. The majority of the Court of Criminal Appeal[3] held that a sentence of imprisonment of six years (reduced from eight for her plea of guilty) with a four year non-parole period was manifestly excessive, although Hiley J, in dissent, would have held that the head sentence was not manifestly excessive. The majority of the Court of Appeal held that an appropriate starting point would have been a term of imprisonment for six years which was reduced to four and a half years for her guilty plea and imposed a non-parole period of two years and three months.

14. Ms Barry was a bookkeeper who stole $189,814.40 from her employer over a period of five months, in breach of trust. She pleaded guilty on the second day of her trial and her sentence was reduced by 5% for the utilitarian value of that plea. She was sentenced to imprisonment for five years and three months reduced from five and a half years with a non-parole period of two years and eight months.[4]

15. R v Bird, concerned an offender who defrauded his employer of a net sum of $617,991.87 over a two year period to fund his gambling obsession. He was found guilty of 25 counts and sentenced to a term of imprisonment for seven years on each count, all to be served concurrently. He was then released on a bond to be of good behaviour after time served on remand. The Crown successfully appealed on the ground that the sentence was manifestly inadequate and Bird was resentenced to a term of imprisonment for 10 years with a four year non-parole period. In that case the Court of Criminal Appeal quoted the following passage from R v Rice.[5]

    These circumstances, however, are similar to those relating to so many who commit crimes of this particular nature: a man with no prior criminal record whatever, with a good – indeed admirable – reputation in the community, with an entirely satisfactory employment record and a stable family background, lapses for the first time into crime by abusing his position of trust and stealing substantial sums of money from his employer. The sentence and the non-parole period are undoubtedly such as to shock a man with a past record and personal background of the present appellant, but they by no means exceed the range commonly encountered for crimes of this nature committed by persons with subjective circumstances that are relied on behalf of the appellant. To extract $285,000 in the short period from his employer by betraying the trust placed in him, and to have dissipated the proceeds in gambling, as the appellant claims that he did, is such as to expose the appellant inevitably to a lengthy period of imprisonment and to a non-parole period which is within the order of that fixed by the sentencing judge.

16. In their joint judgment, after quoting that passage from R v Rice, Asche CJ, Kearney and Rice JJ said:

    We respectfully agree and particularly emphasise the word “inevitably”.[6]

17. Later in the joint judgment, their Honours said:

    The matters to be taken into account and the approach in this jurisdiction to sentencing for offences involving breach of trust by employees are reasonably clear, but may be conveniently restated. In general, unless the circumstances are very exceptional or the amount of money involved is small, a sentence of immediate imprisonment is the usual and expected punishment in such cases. The sentence, and that part of it which is directed to be served, must be sufficiently substantial to indicate to the public the gravity of the particular offence. While the amount of money taken is not the only determinant of the length of the sentence, it is a useful practical indicator. Where very large sums of money are taken, as here, a lengthy sentence of imprisonment is warranted. …… Apart from the amount involved, other factors to be considered when imposing sentence include: the period over which the criminal enterprise was carried on – in this case a little over 2 years; the quality and degree of trust reposed in the accused by his employer, including the accused’s position in the employer’s organisation; the use to which the accused put the monies – in this case mainly gambling; … the effect of the defalcation on the employer; the effect of the sentence on the accused; the history and personal circumstances of the accused and any matters of mitigation personal to him. Where the breach of trust is serious it is usually not appropriate to suspend any part of the sentence.

18. The sentencing judge’s characterisation of the seriousness of the appellant’s offending, including the seriousness of the breach of trust (given the appellant’s position as director and manager) and the effect of the offending on Coronation Drive and the other director and shareholder, are entirely consistent with the principles outlined in R v Bird.  Further, given that the appellant was not entitled to any reduction in his sentence for pleading guilty or on account of remorse or co-operation with the authorities, the sentence of six years imprisonment with a non-parole period of three years (the minimum allowed by the legislation) was not manifestly excessive being within the range of sentencing discretion illustrated by cases such as Gregurski and Barry.

19. Ground 2 of the appeal against sentence must fail.

20. ORDERS:

    (a)      The appeal against conviction is dismissed.

    (b)      The appeal against sentence is dismissed.

---------------------------------------------

[1]       This was a reference to paragraphs in the aide memoir, referred to in more detail below.

[2]R v Fernandes [1996] 1 Cr App R 175 concerned the operation of the extended definition in similar English legislation and contained similar complicating factors to the present case. In Fernandes, a solicitor held money in trust for a client and therefore had the authority to deal with it in certain ways including investing it on the client’s behalf (though this had been limited by the terms of a court order - a matter which is not relevant to the present analysis). He withdrew some of that money from the account in which it was held and invested it in an unauthorised and speculative investment. The solicitor was charged with and found guilty of stealing the money. One of the bases upon which he was charged (and the one which the Court of Appeal presumed he had been found guilty) was that the money had been stolen by the solicitor at the time of the unauthorised withdrawal for the purpose of investing it. The Court of Appeal held that the trial judge was correct to direct the jury that the solicitor would have been guilty of stealing the money when he withdrew it to invest if the jury were satisfied that his intention was to invest it for his own purposes and that that would amount to an “intention is to treat the thing as his own to dispose of regardless of the other's rights” within the extended definition of theft in the relevant legislation.

[3]      The Queen v Gregurke [2014] NTCCA 11

[4]R v Barry (Unreported, Supreme Court of the Northern Territory, Kelly J, 9 June 2017)

[5]      (unreported, Court of Criminal Appeal (NSW), 28 July 1978) In that case it was held that a sentence of 10 years with a non-parole period of four and a half years for a person of previous exemplary character who was a compulsive gambler and who pleaded guilty to nine counts of  larceny as a servant over a two month period of a total of $285,000 was not manifestly excessive.

[6]      R v Barry (Unreported, Supreme Court of the Northern Territory, 9 June 2017) 14.