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…
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- Modra v The Queen [2021] SASCA 88
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- [2021] SASCA 88
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CaseChat Overview and Summary
The Court of Criminal Appeal of South Australia was required to determine whether the sentencing judge erred in considering contentious facts in the victim impact statement, whether the judge failed to properly apply section 26 of the Sentencing Act by not identifying notional individual sentences for each offence, and whether the sentence imposed was manifestly excessive given the dispute over the quantum of loss.
The Court held that while sentencing judges should not refer to unproven facts in victim impact statements, it was not clear that the judge had taken an allegation of destroyed paperwork into account as an aggravating factor. Regarding section 26, the Court affirmed that it is often desirable to impose a single penalty for multiple dishonesty offences to reflect the overall criminality, and a failure to identify notional individual sentences does not constitute an error of law, particularly where it would lead to an "air of unreality." The Court also found that the sentencing judge did not err by failing to make a precise finding of loss, as it was evident that the victims had sustained substantial financial losses regardless of the exact amount. Consequently, the Court found the sentence was not manifestly excessive.
Permission to appeal was granted on one ground, but refused on others. The appeal was dismissed, with the Court noting that even if an error were identified, they would have imposed at least the same head sentence and non-parole period on resentence.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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