Modra v The Queen
[2021] SASCA 88
•2 September 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MODRA v THE QUEEN
[2021] SASCA 88
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
2 September 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION
This is an appeal against a single sentence of nine years with a non-parole period of six years, imposed pursuant to s 26 of the Sentencing Act 2017 (SA) after the appellant plead guilty to one count of aggravated theft and five counts of deception.
The appellant was the sole director of a company which traded as a real estate business. The theft charge concerned $410,000 in cash received by way of rental payments which were not deposited into the company trust account. The element of aggravation was that the appellant abused his position of trust.
The five counts of deception concerned a “Ponzi scheme” operated by the appellant: he contacted investors, inviting them to purchase interests in rent rolls, promising high returns.
The appellant appeals on the basis that the sentencing Judge erred in finding that the appellant destroyed paperwork in an attempt to hide his crimes. The allegation that the appellant destroyed paperwork came from a victim impact statement where the victim said that the appellant “destroyed paperwork in an attempt to cover [his] crimes”. The appellant also complains about the failure to make precise loss findings and that the sentence was manifestly excessive.
Held (by the Court), granting permission to appeal ground 3, refusing permission to appeal grounds 2 and 4, dismissing the appeal:
1. Sentencing judges cannot refer to contentious facts in victim impact statements which have not been admitted or proved. However, in this case, it is far from clear that the sentencing Judge took the allegation that the appellant destroyed paperwork into account as an aggravating factor in sentencing.
2.Where an accused has engaged in multiple dishonesty offences, it is often desirable to impose a single penalty so as to properly reflect the criminality involved in the accused’s course of conduct. A sentencing Judge is not invariably required to identify notional, individual sentences before applying section 26 of the Sentencing Act 2017 (SA), and a failure to do so does not amount to an error of law. It is undesirable to identify separate notional sentences where this would lead to an “air of unreality”. It cannot be said that the exercise of discretion and judgment involved in the application of s 26 has, in this case, miscarried.
3.Whilst it may have been better if the sentencing Judge had outlined the parameters of the dispute regarding the calculation of loss, his Honour did not err in failing to make a precise loss finding. Whether the precise loss was in the order of $430,000 as contended for by the appellant, or the amount approaching $1 million reflected in the forensic accounting calculations, it is clear that victims of the “Ponzi scheme” sustained very substantial losses which caused great damage to their plans for financial security and retirement.
4. The sentence is not manifestly excessive.
Sentencing Act 2017 (SA) ss 11, 26, referred to.
R v Copeland (No 2) (2010) 108 SASR 398, discussed.
Byrnes v The Queen [1999] HCA 38; Daniele v Police [2020] SASC 76; DPP v Hopwood and Byrnes (1998) 145 FLR 418; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; Kentwell v The Queen (2014) 252 CLR 601; Ndreka v The Queen [2021] SASCA 11; R v Bekker [2001] SASC 50; R v Cavanagh [1999] SASC 418; R v Donald (2016) 126 SASR 276; R v Lobban (2001) 80 SASR 550; R v McPhee [2014] SASCFC 107; R v Ravet [2011] SASCFC 67; R v Schofield [1978] WLR 979; R v Van der Horst [2006] SASC 243; R v Wakefield (2015) 121 SASR 569; Seeley International Pty Ltd v Millennium Electronics Pty Ltd (In Liq) (No 3) [2021] SASC 63; The Queen v Perre (1986) 41 SASR 105, considered.
MODRA v THE QUEEN
[2021] SASCA 88Court of Appeal – Criminal: Lovell, Livesey and Bleby JJA
THE COURT:
Introduction
The appellant was a real estate agent who systematically stole money. He took large sums from clients and friends. He has never explained what he did with the money he took.
The appellant pleaded guilty to the theft of over $410,000 in rent money from his company trust account, as well as to deceiving victims into “investing” around $1 million in a “Ponzi scheme” concerning rent rolls. On his own case, over $500,000 of the $1 million has not been returned. Some victims lost significant sums set aside for retirement.
The appellant appeals against a single sentence of nine years, after a 10 per cent reduction for late pleas of guilty, imposed pursuant to s 26 of the Sentencing Act 2017 (SA) and against which a non-parole period of six years was fixed.
The appellant contends that the sentence is manifestly excessive and that various other errors were made. For the reasons that follow, the appeal must be dismissed.
The offences
The appellant pleaded guilty to, and was sentenced for, the following offences:
1.one count of aggravated theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA), (the CLCA), for which the maximum penalty was 15 years imprisonment; and
2.five counts of deception contrary to s 139(b) of the CLCA, for which the maximum penalty was, in each case, 10 years imprisonment.
The circumstances of the offending
The appellant was the sole director of a company which traded as a real estate business, concentrating on property management. As a result, he received and held on trust the rent money due to various of his landlord clients. Between November 2012 and August 2014, significant cash by way of rental payments was received but not deposited into the company trust account: the theft was determined by reference to a general deficiency in the trust account of over $410,000. The element of aggravation was that the appellant abused his position of trust.
As for the five counts of deception, the appellant engaged in what was described as a “Ponzi scheme”.[1] In the case of each count, the appellant contacted investors, inviting them to purchase interests in rent rolls. A rent roll is commonly understood to be a portfolio of rental properties managed by a real estate agent on behalf of landlords which generates a regular rental income stream. The value of the rent roll is often determined having regard to the present value of the expected income stream. In this case, there were rent rolls but they were already owned by others. The victims were deceived. The investments made by the victims were not backed by separately identifiable assets. Their investments were worthless.
[1] Named after Charles Ponzi, the Italian/American fraudster who defrauded “investors” of large sums by promising high returns, using the investments of later investors to meet the returns promised to earlier investors.
As is typical, the appellant had relied upon his good name and standing with the victims to encourage their investments. As is also typical, he promised each of them unrealistically high rates of return.
Some of the deception offences were not proceeded with and remained as uncharged acts. The appellant pleaded guilty to counts 13, 14, 16 and 18. The offending in respect of count 13 commenced in December 2011 when the victim paid the appellant $150,000 for what was said to be a rent roll of 62 properties. The offending the subject of count 14 commenced in March 2012 when another victim paid the appellant $153,000 for another rent roll of 62 properties. The offending the subject of counts 16 and 18 commenced in August 2012 when the victims of each count paid to the appellant, respectively, $75,000 for a rent roll of 30 properties and $85,000 for a rent roll of 36 properties.
The appellant’s fraudulent conduct continued until around July 2014. In the intervening period of just over three and a half years, there were uncharged acts concerning further investments, and payments of promised monthly instalments which became irregular before they stopped. There were promises made about further payments and, in some instances, payments were made by the appellant to investors in order to repurchase certain of the fictitious rent rolls.
The grounds of appeal
It is against this background that the appellant complains that:
1.the sentencing Judge erred in finding that he destroyed paperwork in an attempt to cover his crimes;
2.the sentencing Judge failed to adequately explain how he arrived at a starting point of 10 years imprisonment before reducing that by 10 per cent to reflect the appellant’s late pleas of guilty;
3.the sentencing Judge failed to make sufficient findings of fact concerning the losses suffered by the victims in connection with counts 13, 14, 16 and 18; and
4.the sentence was, in all of the circumstances, manifestly excessive.
Permission to appeal was granted only with respect to ground 1.[2] The appellant seeks permission in respect of the remaining grounds.
[2] Permission was granted by Lovell JA at the callover on 10 May 2021, following a DPP notice which conceded that ground 1 was reasonably arguable.
Ground 1: the use of the victim impact statement
In the course of his sentencing remarks, when addressing the factual narrative, the sentencing Judge referred to the various victim impact statements in which the victims had described their financial struggles, guilt, embarrassment and feelings of betrayal and bitterness. Some described how they had confronted the appellant, with one victim describing the appellant’s response as “nasty and intimidating”. It was in the course of addressing this victim’s statement that reference was made to the engagement of a private investigator who was apparently evaded by the appellant who, according to the victim’s statement, “destroyed paperwork in an attempt to cover your crimes”.
The appellant says that this assertion was disputed by counsel appearing before the sentencing Judge and, notwithstanding, this must have been accepted and treated as an aggravating feature which was erroneously taken into account in sentencing. The appellant complains that the sentencing Judge has therefore determined the facts of the offending on material other than sworn depositions or statements tendered by the prosecution.[3]
[3] The Queen v Perre (1986) 41 SASR 105, 105-106 and R v Lobban (2001) 80 SASR 550, [17]-[18].
Victim impact statements are now an integral part of the sentencing process. They provide victims with an opportunity to explain to the Court the effect of the criminal conduct on them. They provide sentencing judges with insight into the harm and suffering that might not otherwise be apparent or obvious. Victim impact statements also represent an important means by which the consequences of criminal conduct are brought home to offenders. Nonetheless, sentencing judges cannot use contentious facts stated in victim impact statements as the factual basis for sentencing where these are neither admitted nor proved.
In our view, however, it is far from clear that the sentencing Judge did take this matter into account as anything other than part of the general narrative of events from the perspective of one of the victims. The reference to destroyed paperwork was not later repeated. It is, frankly, most unlikely to have been considered or used as an aggravating feature by the sentencing Judge.
Perhaps more importantly, we do not accept that the passing reference made in this case was significant or material to the sentence ultimately imposed. In our view, the appellant has not demonstrated any material error, with the result that this ground of appeal must be dismissed.[4] However, even if we are wrong in this conclusion, excluding consideration of this asserted fact on resentence would not require that the appellant be sentenced differently. We will address the likely effect of resentence at the conclusion to these reasons.
[4] See, by way of example, R v McPhee [2014] SASCFC 107, [23].
Ground 2: the imposition of a single sentence
The appellant seeks permission to appeal ground 2 which complains that s 26 of the Sentencing Act 2017 (SA) was utilised in order to arrive at a single sentence without indicating, notionally at least, the separate penalties applicable to each charge. The appellant contends that the sentencing Judge failed to precisely indicate the extent to which the separate sentences would be served cumulatively or concurrently, and that no apparent consideration was given to the totality principle. Reliance is placed upon the observations in R v Copeland(No 2):[5]
In my view, this appeal does illustrate the desirability, when the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) is exercised, of identifying the sentences which would have been imposed for each offence if the power had not been exercised. At the very least, it is desirable to set out the following matters: the starting point for the sentences on each individual offence, the broad approach taken to accumulation or concurrency, and whether there has been a reduction of the sentence which would otherwise have been imposed, either on account of the guilty plea, or in accordance with the totality principle.
[5] R v Copeland (No 2) (2010) 108 SASR 398, [92] (Kourakis J, as he was).
The appellant also contends that, if there was a reduction for totality when arriving at the starting point of a single sentence of 10 years, there must have been an error in then making a ten percent reduction to reflect the late pleas of guilty.[6]
[6] R v Ravet [2011] SASCFC 67, [31] (Sulan J, with whom Duggan and David JJ agreed).
Permission to appeal this ground should be refused. Where an accused has engaged in multiple dishonesty offences it is often desirable to impose a single penalty so as to properly reflect the overall criminality involved in the accused’s course of conduct.[7]
[7] Indeed, Parliament has identified sentencing for multiple dishonesty offences as one example of a case which s 18A, the predecessor to s 26, was designed to address: see South Australia, Parliamentary debates, Legislative Council, 12 February 1992, pp 2662-2663 (Chris Sumner).
In R v Copeland (No 2), it was acknowledged that there will be cases where it is appropriate to utilise the statutory power to impose one head sentence without separately addressing notional sentences, particularly where approaching sentencing arithmetically leads to artificiality and a failure to weigh “all relevant factors which determine the criminality of the defendant’s conduct”.[8] In R v Donald, the Court emphasised the “discretion and judgment” involved in determining whether to utilise s 26, and when it is desirable to separately identify the notional sentences.[9]
[8] R v Copeland (No 2) (2010) 108 SASR 398, [14]-[16],[29] (Gray J).
[9] R v Donald (2016) 126 SASR 276, [30]-[34] (Lovell J, with whom Nicholson and Parker JJ agreed).
Indeed, the authorities show that a sentencing Judge is not invariably required to identify notional, individual sentences before applying s 26, and a failure to do so does not amount to an error of law.[10]
[10] R v Copeland (No 2) (2010) 108 SASR 398, [29] (Gray J), [96]-[97] (Kourakis J, as he was). See also R v Van der Horst [2006] SASC 243, [54]-[57] (Vanstone J) and R v Wakefield (2015) 121 SASR 569, [38]-[41] (Blue J); R v Donald (2016) 126 SASR 276, [31]-[34] (Lovell J, with whom Nicholson and Parker JJ agreed).
The authorities highlight the undesirability of identifying separate notional sentences where to do so would lead to an “air of unreality”. The sentencing Judge clearly had something similar in mind when he described the imposition of separate penalties as resulting in a sentence which was “unrealistic”. Accordingly, he did not identify separate notional sentences before identifying his starting point and then applying the reduction of 10 per cent to reflect the late pleas of guilty. Had this not been his approach, there might well have been criticism of the failure to properly give effect to the reduction on account of the guilty pleas, rendering those reductions “meaningless”.[11]
[11] R v Donald (2016) 126 SASR 276, [31]-[34], [45] (Lovell J, with whom Nicholson and Parker JJ agreed).
It cannot be said that the exercise of discretion and judgment involved in the application of s 26 has in this case miscarried.
Ground 3: the absence of a factual finding concerning loss
Proposed appeal ground 3 complains that the sentencing Judge failed to make factual findings regarding the losses actually suffered by the victims of the rent roll deceptions. Essentially, it is said that there was a failure to properly account for the moneys returned to each victim and a consequential failure to arrive at the correct arithmetic amount which reflected each victim’s final loss.
Before the sentencing Judge, the prosecution submitted that loss might be calculated by identifying the difference between the amount of principal and interest owed to each investor, less the amount of principal and interest paid to each investor. The total loss on this basis, described as Scenario 2, approximated $1.4 million. This amount included both charged and uncharged conduct. Inherent in this analysis was that the allowance for interest should be calculated according to the returns promised by the appellant in the course of his fraudulent scheme. This method of assessing loss might be described in a commercial case as an expectation loss.
On the hearing of the appeal, and in contrast to the proposed ground of appeal, it was submitted that the sentencing Judge determined loss utilising this method. Counsel for the appellant submits that this was the wrong approach. That is, the victim’s losses ought not to have been calculated having regard to the unrealistically high rates promised by the appellant. It is submitted that the sentencing Judge, to the extent that he adopted this approach, was in error. For the purposes of this submission, reliance is placed upon what was said by the sentencing Judge during sentencing submissions.[12]
[12] Daniele v Police [2020] SASC 76, [20] (Kourakis CJ).
Alternatively, it is submitted that there was material error in failing to make a finding about the losses sustained by the victims.
It is submitted by the appellant that, in fact, the victims’ losses should have been calculated by reference to the principal that was lost, together with the interest that might have been earned in genuine investments, but for the fraud. Allowance must then be made for what was recovered. That might, in a commercial case, be described as a form of reliance loss. The appellant says that the evidence before the sentencing Judge shows that the total loss to the victims the subject of charges was just over $430,000. This sum does not include the interest that might have been earned in genuine investments. Whilst conceding that some interest of this kind must be allowed, no interest calculation was undertaken by the appellant because he says that there was no evidence which enabled an interest calculation to be undertaken in respect of each victim. Accordingly, whilst the actual loss on this approach must exceed $430,000, absent better evidence, no precise figure can be determined.
Before the sentencing Judge, however, the appellant was represented by different counsel who took a different approach. Whilst conceding that the sentencing Judge was “probably not going to come to a precise figure” for the loss, using what was described as Scenario 1, the appellant then advocated for a loss in the order of approximately $750,000, which encompassed both the charged and uncharged conduct. Despite repeated requests from the sentencing Judge for an explanation as to how the monies were dissipated during the operation of the scheme, counsel for the appellant was unable to provide any satisfactory explanation.
In our view, permission to appeal this ground should be granted, but this ground dismissed.
It must be acknowledged at the outset that the trial Judge did not sentence the appellant on the basis of any particular loss. Rather, he simply recited the amount of the investments made by each victim as set out in the Information without descending into any detail about the promised rates of return, what was actually received or what might have been received had there been genuine investments earning market rates of interest.
We reject the contention that the sentencing Judge found, still less proceeded on the basis, that the victims’ losses in the “Ponzi scheme” approximated $1.4 million. The trial Judge in submissions said nothing more than that he rejected Scenario 1. He did not say, whether in argument or in his remarks, that he accepted Scenario 2. Having said that, we doubt whether there would have been any error in referring to losses of approximately $1.4 million as representing one way of understanding the losses caused by the appellant’s fraud.
We start with the proposition that there is no reason to give a narrow or confined meaning to the loss or damage sustained by the victims of the appellant’s fraud.[13] On any view, each of the victims the subject of the charged acts sustained very substantial losses. Superannuation and life savings were lost or substantially dissipated.
[13] See s 11 of the Sentencing Act 2017 (SA) and DPP v Hopwood (1998) 145 FLR 418. Whilst this decision was set aside by the High Court on jurisdictional grounds in Byrnes v The Queen (1999) 199 CLR 1, the approach to loss was followed in R v Bekker (2001) 120 A Crim R 170, [24] (Gray J).
This is a case concerning the appellant’s criminal wrongdoing. This case provides no occasion to address the issues that might arise in a commercial claim where expectation loss might be contrasted with reliance loss.[14] There is, in law, no one way of determining loss. Loss can be determined in different ways for different purposes. There are examples of courts being prepared to allow interest when awarding compensation to the victims of theft.[15] It is, however, not necessary to determine what might be recovered by each of the victims in actions against the appellant for breach of contract,[16] or in deceit,[17] in order to properly determine the appellant’s sentence for his criminal wrongdoing. For example, and on any view, the loss calculation based on the rates of return promised by the appellant were, at the least, relevant to assessing what the victims were led to believe when they were deceived into participating in the appellant’s fraudulent scheme. That might be relevant to an understanding of the victims’ sense of loss and anguish.
[14] See, for example, Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, 12-14 (Mason, Wilson and Dawson JJ), and, as an illustration, see Seeley International Pty Ltd v Millennium Electronics Pty Ltd (In Liq) (No 3) [2021] SASC 63, [191]ff (Livesey J).
[15] R v Schofield [1978] 1 WLR 979 (Lloyd J, delivering the reasons of the Court).
[16] Amann Aviation v Commonwealth (1991) 174 CLR 64.
[17] Derry v Peek (1889) 14 App Cas 337; Nocton v Lord Ashburton [1914] AC 932; Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556.
In many cases, the determination of the loss wrought by fraud is easily undertaken or agreed, and provides, at least in a broad way, a basis to assess the seriousness of the criminal wrongdoing and to compare cases. However, where, as in this case, the nature of the appellant’s fraudulent scheme makes the assessment of loss difficult, that does not mean that the wrongdoer should necessarily benefit from the uncertainty. Granted, the ordinary effect of the criminal burden of proof cannot be overlooked and the offender cannot be sentenced on anything other than the most favourable basis revealed by the evidence.[18] That, however, does not mean that it will ordinarily be necessary to undertake time-consuming and expensive inquiries of victims and financial institutions or forensic accounting analyses in order to arrive at a precise view of the loss sustained, and to address that by reference to different methods of assessment. Merely because loss might be expressed in different ways at law does not mean that the prisoner has not been sentenced on an appropriate basis.
[18] R v Olbrich (1999) 199 CLR 270, [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Given the scope for dispute in this case – the amounts which it was said represented all victims’ losses ranged between $750,000 and $1.4 million – it is unsurprising that the sentencing Judge did not attempt to make a finding as to the precise amount of each victim’s loss. The sentencing Judge clearly and correctly described the offending, including all relevant features relevant to the losses caused and sustained by the victims. Whilst the sentencing Judge could have outlined the parameters of the dispute concerning the calculation of loss, there was no error in not doing so, still less in not making a precise loss finding.
Whether the loss was in the order of at least $430,000 concerning the victims of the charged acts, as contended for by the appellant’s counsel on appeal, or the amount of $750,000 conceded before the sentencing Judge, or an amount approaching $1 million as reflected in some of the forensic accounting material before the sentencing Judge, the victims of the rent roll frauds sustained heavy losses. Those losses caused great distress and damage to many victims’ plans for financial security and retirement.
And, of course, one must add to these the losses from the trust account theft exceeding $410,000.
A broad range, using various methods and calculations, and a sound understanding of the circumstances of the appellant’s fraud and its effect on the victims, furnished a sufficient foundation for the sentencing Judge to undertake a proper determination of the appellant’s sentence in this matter.
Ground 4: manifest excess
Finally, permission to appeal the sentence on the grounds of manifest excess should be refused. It cannot be said that the head sentence or the non-parole period in this case exceeded the bounds of a sound exercise of discretionary judgment.[19]
[19] R v McPhee [2014] SASCFC 107, [28]-[29] (Nicholson J, with whom Vanstone and Blue JJ agreed) and Ndreka v The Queen [2021] SASCA 11, [28] (Doyle JA, with whom Kelly P and Bleby JA agreed).
The appellant’s offending involved a protracted course of conduct over a period exceeding three and a half years, involving very significant sums of money obtained as a result of his position of trust, whether as the agent dealing with a trust account, or as the manager of large investments from various rent roll investors.
The appellant’s conduct was marked by lies, deception and concealment. That is typical in cases such as these. The appellant was to be afforded little credit for his good character because that was the very means by which he was able to occupy a position of trust and convince his victims to retain his real estate company and to invest with him.[20]
[20] R v Davies (1996) 88 A Crim R 226, 229 (Cox J); R v Cavanagh [1999] SASC 418, [20] (Debelle J).
It is, we think, very significant that the appellant has never properly explained his offending or need for money. Why the appellant embarked on such a gross and sustained breach of trust remains a mystery. He has never explained the use to which he put the money he stole. What became of it remains a mystery. Deterrence, both personal and general, and the need for condign punishment warranted a very firm response from the Court in this case. It cannot be said that this sentence and the non-parole period were manifestly excessive.[21]
[21] See Annexure A, provided by the Director.
Indeed, even if it were possible to identify some specific error in the exercise of the sentencing discretion in this case, the appeal must be dismissed because, on resentence in the circumstances of this case, we would have imposed at least the same head sentence and non-parole period.[22]
[22] Kentwell v The Queen (2014) 252 CLR 601, [42].
Conclusion
The appeal must be dismissed.
Annexure A
Citation Charges Facts Sentence Imposed R v Davies
(1996) 88 A Crim R 22618 counts of fraudulent conversion. The defendant was an accountant who fraudulently obtained $492,000 over 4 years. 8 years with a 5‑year non-parole period. R v Cavanagh
[1999] SASC 418144 counts of fraudulent conversion. Misappropriation of $240,000 from 3 trust funds over 4 years. 8 years with a 5-year non-parole period. R v Hignett
[2000] SASC 28070 counts of fraudulent conversion The defendant was a property manager and defalcated $893,843 over 6 years. The starting point of 12 years was reduced to 10 years with a 6-year non-parole period. R v Powell
(2001) 81 SASR 952 counts of falsification of accounts The defendant was an accounts employee who misappropriated $672,156. 7 years with a non-parole period of 3 years and 6 months. R v Suri
[2004] SASC 806 counts of fraudulent conversion
3 counts of false pretences
12 counts of fraudulent conversionDirector of a company defrauded approximately $160,000 over approximately 4 months. He made partial restitution of $50,000 and was found to be motivated by a desire to keep his business going, rather than greed. The starting point of 5 years was reduced to 3 years and 6 months, with a non-parole period of one year and 6 months. R v Musolino
[2004] SASC 8915 counts of fraudulent conversion The defendant held himself out to be an accountant and auditor and obtained $201,642 over a period of 10 months. 6 years with a 3‑year non-parole period.
Police v Curtis & Marshall
(2004) 145 A Crim R 587108 counts of falsification of accounts (Curtis)
20 counts of receiving (Marshall)Curtis defalcated $591,000 over 4 years as an accounts clerk employee, while Marshall received $132,691. Curtis – 4 years and 6 months with a
22-month non‑parole period
Marshall – 2 years and 3 months, with a 10 month non‑parole periodForsythe v Police
[2010] SASC 214297 counts of dishonestly dealing with documents Employee who defrauded his employer of $550,000 over 3 years. 7 years with a 4-year non-parole period. R v Dubois
(2004) 88 SASR 30431 counts of false pretences Financial advisor who misused $2 million of client funds for over 5 years. The starting point of 15years was reduced to 12 years, with an
8-year non-parole periodR v Athanasas
[2014] SASCFC 195 counts of theft The defendant obtained $564,000 from victims by deceiving them into investing in a bogus business. The starting point of 10 years was reduced to 8 years, with a non-parole period of 4 years and 9 months. R v McPhee
[2014] SASCFC 107181 counts of aggravated theft Court appointed trustee who stole $1.95 million over 6 years. The starting point of 13 years was reduced to 9 years and 2 months, with a non-parole period of 6 years. R v Howatt
[2017] SASCFC 416 counts of theft
39 counts of theft
8 counts of dishonestly dealing with documentsTwo sets of offending:
(1) The 6 counts of theft were representative of 46 counts of theft totalling $105,000 from the defendant’s employer over 17 months.
(2) The 39 counts of theft and 8 counts of dishonestly dealing with documents related to $67,000 stolen from the defendant’s mother over a 12-month period.In relation to the first offending, the starting point of 4 years and 6 months was reduced to 4 years. In relation to the second offending, the starting point of 2 years and 3 months was reduced to 2 years. The non-parole period for both sets of offending was 3 years and 8 months.
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