McCulloch v Tasmania - [2010] TASCCA 21

[2010] TASCCA 21

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: McCulloch v Tasmania [2010] TASCCA 21

PARTIES:  McCULLOCH, Tanya Mary
  v
  TASMANIA (STATE OF)

FILE NO/S:  519/2010
DELIVERED ON:  22 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  13 September 2010
JUDGMENT OF:  Blow, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Computer-related fraud – $1.2 million stolen over 3½ years – Psychological illness.
Thompson v R (2005) 157 A Crim R 385, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson, P Sullivan
           Respondent:  A Shand
Solicitors:
           Appellant:  Paul Sullivan
           Respondent:  Director of Public Prosecutions

Judgment Number: [2010] TASCCA 21
Number of paragraphs: 25

Serial No 21/2010
File No 519/2010

TANYA MARY McCULLOCH v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
PORTER J
WOOD J
22 December 2010

Order of the Court

The appeal is allowed.

The sentence of 7 years' imprisonment and the order for a non-parole period of 5 years are quashed.

In lieu of those orders, the respondent is sentenced to 6 years' imprisonment, with effect from 9 April 2010, and it is ordered that she not be eligible for parole until she has served 3½ years of that sentence.

Serial No 21/2010
File No 519/2010

TANYA MARY McCULLOCH v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
22 December 2010

This is a sentencing appeal. The appellant stole over $1.2 million from her employers over a period from 30 March 2006 to 30 September 2009. She was charged on 346 counts of computer-related fraud, contrary to the Criminal Code, s257B(c). She pleaded guilty to those charges in the Magistrates Court. Subsequently Tennent J sentenced her to seven years' imprisonment, and ordered that she not be eligible for parole until she had served five years of her sentence. The appellant contends that the head sentence and the non-parole period are both manifestly excessive.

The appellant worked for "Cradle Coast Water" in the administration and accounting area from July 1991 onwards. She had worked for that employer for over 14 years before her offending commenced. As from 1 July 2009, that employer's activities and staff were taken over by Tasmanian Water and Sewerage Corporation North West Region Pty Ltd, which trades as "Cradle Mountain Water". The appellant worked for that company from 1 July 2009 until her offending was detected. She was its cost controller and contract services officer.

The appellant made transfers and payments as follows:

·    She made 57 transfers totalling $600,406.68, to her credit union account.
·    She made 11 transfers, totalling $134,216.75, to joint housing loan accounts of her husband and herself. Those funds were used to repay a mortgage loan relating to one house, and to make reductions to the principal sum in relation to the mortgage over a second house.
·    She made a transfer of $51,244.18 to a bank…

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 McCulloch v Tasmania

Details

AGLC: McCulloch v Tasmania [2010] TASCCA 21
Case: [2010] TASCCA 21
Decision Date: 22 December 2010

CaseChat Overview and Summary

McCulloch appealed against a sentence imposed by the Supreme Court of Tasmania following her conviction for computer-related fraud. The fraud involved the theft of approximately $1.2 million over a period of three and a half years. The appeal was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow, Porter and Wood JJ.

The central legal issue before the Full Court was whether the sentence of 7 years' imprisonment, with a non-parole period of 5 years, was manifestly excessive in the circumstances of the case. The court was required to consider the gravity of the offence, the amount stolen, the duration of the offending, and any mitigating factors, including the appellant's psychological illness.

The Full Court allowed the appeal, reasoning that while the offending was serious, the original sentence did not adequately take into account the mitigating factors, particularly the appellant's psychological condition. The court determined that a lesser sentence was appropriate. Consequently, the original sentence of 7 years' imprisonment and the 5-year non-parole period were quashed. In their place, the court imposed a sentence of 6 years' imprisonment, with a non-parole period of 3½ years, commencing from 9 April 2010.

Orders

Orders of the court

1. The appeal is allowed.

2. The sentence of 7 years' imprisonment and the order for a non-parole period of 5 years are quashed.

3. In lieu of those orders, the respondent is sentenced to 6 years' imprisonment, with effect from 9 April 2010, and it is ordered that she not be eligible for parole until she has served 3½ years of that sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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