R v Anthony Rizk

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Anthony Rizk [2005] NSWCCA 104

FILE NUMBER(S):
2004/3169

HEARING DATE(S): 21 March 2005

JUDGMENT DATE: 29/03/2005

PARTIES:
Regina, Anthony Rizk

JUDGMENT OF: Mason P Barr J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0378

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

COUNSEL:
A Martin
P Ingram

SOLICITORS:
Nikola Velcic & Associates
S Kavanagh

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3169
MASON P
BARR J
JOHNSON J
29 MARCH 2005

REGINA v ANTHONY RIZK

Judgment

MASON P: I agree with Barr J.
BARR J: This is an application for leave to appeal against sentences imposed in the District Court. The applicant, Anthony Rizk, pleaded guilty before the Local Court of seven offences under s178A Crimes Act of fraudulently misappropriating moneys. He was committed to the District Court for sentence. For reasons which are not material to this application it became desirable to place three of the charges on an indictment. The applicant pleaded guilty to those charges when arraigned and maintained his pleas of guilty to the remaining four charges, which were particularised in an information and summons. Taylor DCJ sentenced the applicant on each count to imprisonment for three years with a non-parole period of two years and three months. His Honour ordered all the sentences to be served by way of periodic detention, commencing on 18 March 2004. The non-parole period was ordered to expire on 17 June 2006.
The applicant was a real estate salesman and director of Jenko Properties Pty Limited, a licensed real estate agent trading as Ray White Merrylands. The business of the agency included the receipt of rents for tenanted premises. Moneys so received were deposited into a trust account. Between about April 1999 and about January 2000 the applicant had authority to sign cheques drawn on the trust account, though the signature of two authorised persons was always required. After early 2000 the applicant ceased to become a signatory because he was generally unavailable. Others took on that responsibility.
By August 2000 the business was not doing well. One of its obligations was to pay a certain amount of money to sponsor a football club. It did not have the necessary money, so the applicant drew a cheque on the trust account and signed it. Contrary to its instructions, the bank honoured the cheque. Encouraged by his unexpected success, the applicant drew and signed a series of further cheques, which were all honoured when negotiated through the private bank account of a friend. In each case the benefit went directly or indirectly to the applicant. Altogether seven cheques were drawn and negotiated between 29 August and 25 September 2000. The total value of the cheques was $19,356.40. As a result there was not enough money in the trust account to cover cheques drawn in the ordinary course of business to pay the landlords the proceeds of the rents received. Accordingly, cheques began to be dishonoured. A report was made to the Department of Fair Trading and an enquiry was instituted.
As soon as he was asked about the matter the applicant confessed what he had done and gave a full explanation about all the cheques he had drawn. He underwent an interview with officers of the Department of Fair Trading in which he gave full particulars. He admitted his guilt when spoken to by the police.
Notwithstanding the strong case that then existed against the applicant, no charges were brought until well into 2003. In September of that year the applicant pleaded guilty in the Local Court. The Crown acknowledged that that was his earliest opportunity to do so.
The applicant was a man of thirty years of age with no prior criminal history. He was married with a family, but by the time of sentence his offences had caused his family to disown him. His marriage had broken up and the matrimonial home was to be sold. Arrangements had been made, which his Honour was told would come into effect within a few weeks after sentence, for the full reimbursement of the moneys misappropriated. Those moneys were to come from the proceeds of sale of the matrimonial home. A deed, made between the applicant and his wife and having that effect, was tendered before the sentencing judge.
The applicant was represented by a solicitor, who tendered a psychologist’s report from Ms Emma Collins. Not surprisingly, it showed that the applicant was anxious and depressed. Ms Collins considered that he was of average intelligence. She did not suggest that he had any mental illness or intellectual deficit.
During debate counsel for the Crown and for the defence acknowledged that a custodial sentence was necessary, but whereas the Crown submitted that a sentence of full time custody ought to be imposed, the solicitor for the applicant submitted that the applicant should not be sentenced to full time custody. There was this exchange -
His Honour:         That’s the issue, isn’t it?
Tabchouri (solicitor for the applicant): That is the issue.
His Honour:         Full time custody or periodic detention?
Tabchouri:            I think it’s...(not transcribable) …
His Honour:        There is no other sentencing disposition that’s appropriate?
Tabchouri:            No, I’ll let my friend speak before I do.
The applicant filed grounds of appeal in this Court. It was submitted that his Honour erred by overemphasising the need for personal and general deterrence because the applicant’s actions were out of character, because he was unlikely ever again to be in a position of trust which would give him the opportunity to repeat his offences and because at the time of his offences he was incompetent, untrained, inexperienced and unsupervised.
In oral submissions counsel disavowed any criticism of a sentence of periodic detention or of the length of the head sentence imposed. The attack was confined to the apportionment of the sentence to the non-parole period and the balance of the term during which the applicant would be eligible for release on parole. It was submitted that his Honour erred in failing to find, pursuant to s44 Crimes (Sentencing Procedure) Act, that there were special circumstances justifying a reduction in the non-parole period so as to allow an extended period of time on parole.
Before the sentencing judge, the applicant’s solicitor did not submit that the circumstances justified such an adjustment. In giving judgment, his Honour said this -
It is obviously a very strong case for the imposition of deterrence both specific deterrence to ensure the offender does not get tempted again to something of this kind when he is under financial pressure and secondly from the general deterrence point of view to deter like minded people from committing what is an offence that undermines public confidence in the proper administration of rental accommodation and the trust that estate agents have with other people’s money. In my view special circumstances have not been made out.
It was submitted on appeal that his Honour ought to have concluded that the applicant’s full and immediate admissions, backed up by his pleas of guilty entered at the earliest opportunity, the staleness of the offences, resulting from the unexplained delay in bringing the charges, with the consequent depressing effect on the applicant, and the applicant’s settled plan to make full reparation justified extending the balance of the term at the expense of the non-parole period.
It was not submitted that his Honour failed to take into account the features pointed to, but merely that the result demonstrated that his Honour must have given them too little weight. Neither was it submitted that his Honour made any particular error in dealing with the facts. So understood, the submission was that the imposition of a non-parole period of two years three months periodic detention was outside the proper range of his Honour’s sentencing discretion.
The maximum penalty for an offence under s178A Crimes Act is imprisonment for seven years. As the extract from his Honour’s judgment shows, his Honour paid appropriate regard to the need to deter the applicant from committing further offences of this kind. His Honour was also concerned, as he was obliged, to consider the deterrence of others who might be tempted to commit such offences. There is a strong need for deterrent sentences where trust moneys are misappropriated. His Honour’s remarks show that he had regard to that need.
The features pointed to on appeal undoubtedly favoured the applicant and may be taken to have justified his Honour’s decision to impose a sentence less that one of full time detention. However, the applicant’s gross breaches of trust, and the need to deter him and others from committing such breaches of trust, called for the imposition of a salutary and realistic non-parole period. In my opinion it is not reasonably open to argue that the non-parole period of two years and three months was outside the proper range of his Honour’s sentencing discretion.
An argument may well have been mounted that the applicant would benefit from a longer period of parole than the nine months permitted, but it would have been inappropriate to increase the effective length of the sentences in order to achieve such a result.
In my opinion the only ground of appeal argued has not been made good. I would grant leave to appeal but would dismiss the appeal.
JOHNSON J: I agree with Barr J.

*************

LAST UPDATED: 30/03/2005

[2005] NSWCCA 104

29 March 2005