R v Buckley
[2002] NSWCCA 44
•22 February 2002
CITATION: R v Buckley [2002] NSWCCA 44 FILE NUMBER(S): CCA 60799 of 1998 HEARING DATE(S): 22/02/02 JUDGMENT DATE:
22 February 2002PARTIES :
Regina
v
Robin Andrew BuckleyJUDGMENT OF: Meagher JA at 1, 16; Wood CJ at CL at 14; Bell J at 17
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/11/0683 LOWER COURT JUDICIAL
OFFICER :Freeman DCJ
COUNSEL : A: Paul Byrne SC
R: Richard Maidment SCSOLICITORS: A: Legal Aid Commission - David Barrow
R: Commonwealth Director of Public ProsecutionsCATCHWORDS: Application to vary sentence - whether non parole period could be reduced - appeal dismissed. DECISION: Appeal dismissed.
CCA 60799 of 1998
Friday, 22 February 2002MEAGHER JA
WOOD CJ at CL
BELL J
1 MEAGHER JA: In this matter there is an application for an appeal by Mr Buckley who was found guilty in the District Court on a large number of cases, in fact seventeen counts arising out of financial dishonesty. The counts in question arose in some cases under New South Wales legislation and in some cases under Commonwealth legislation. His Honour grouped them in eight separate pairs of offences and the other was a single count, count 5. In relation to the eight separate pairs of sentences his Honour imposed concurrent sentences of six months and accumulated the sentences of eight pairs to give an overall sentence of four years in relation to those sixteen counts.
2 In relation to count 5 his Honour imposed a sentence of four years and made it cumulative on the sentence of other counts making a total sentence of eight years. In relation to the total sentence his Honour made it clear that his intention was that Mr Buckley should serve six years in custody and two years on parole. The present application is to vary the sentence of his Honour.
3 There is very little, if anything, in dispute. "I regard it", his Honour said, "as being one of the most serious examples of this sort of fraudulent behaviour with which the courts have had to deal. There is no present prospect of any refund".
4 What Mr Buckley did was approach various so-called investors and requested them to invest sums of money. Many of them did. Sometimes the sums were very high, $50,000 and more and sometimes less. The sort of thing which he said, if I may take his inducements to one investor, the unfortunate Mrs Becke, was this:
"You may have heard all this before but I will say it again. I deal in the currency exchange. The funds are held in separate accounts. I never actually use your money. Your investment money is never used for trading. It is used as security to allow me to trade on your behalf. I bet that there will be movements in the rate of exchange either up or down in various foreign currencies. As long as the price moves up or down a profit will be earned. I guarantee that I can make a profit. This is because I undertake hedging. It is like buying a type of insurance which brings in one per cent in three to seven days."
5 That is a statement which I put to counsel for the appellant who fairly admitted that almost every statement in that inducement was wrong and gravely wrong. Mr Buckley likewise told other people that he actively participated in the international inter-bank spot currency market, the OTC interbank currency options markets, the Philadelphia currency stock exchange markets, the international monetary market futures and the European currency options exchange. He told almost everyone he could think of that he was a very significant figure in the complicated world of foreign currency dealings.
6 In fact not one word of it was true. Not once did he trade any money on any foreign currency exchange.
7 It is also true that the money which he induced his victims to part with was used to a great extent for his own benefit.
8 I might mention the evidence before us does not enable us to say exactly how much money he managed to inveigle from people but it would seem to be in the order of one million dollars or over.
9 Counsel for Mr Buckley very properly put to us that just because he in effect stole one million dollars does not mean that he spent all that money solely on himself. That is perfectly true but it is a truth which seems to me not to get him anywhere. He kept the bulk of it for himself. Other parts of it he paid either to his mistress or to one or more of his associates or to one of his associate's mistresses. He also paid other parts of it as a partial repayment of loans made to him by some of his other victims.
10 None of that seems matter. His Honour was essentially right when he said that the enormous sum of $1 million or more was stolen by him from his clients and not invested according to any of their instructions.
11 In those circumstances I do not see anything can be said to challenge his Honour's reasons for judgment. There is no case whatever in my view for reducing the sentences which his Honour created.
12 Mr Byrne QC in a very able argument also pointed out that there was a disparity in the non-parole aspect of the sentences with the overall term. The overall term is eight years with a non-parole period of six years. He made the point that more usually it should not be higher than two-thirds and almost never as high as seventy-five per cent as was imposed here, and that the seventy-five per cent figure is only reserved for very serious cases.
13 That may or may not be the fact but in my view this is a very serious case and the seventy-five per cent figure is fully justified. For those reasons I am of the view that the appeal should be dismissed.
14 WOOD CJ at CL: I agree and I only wish to add that the reference to the proportion of seventy-five per cent, or to some lesser proportion, has a significance in this case, since some of the offences were Commonwealth offences. However, in my view, to intervene by reducing the non-parole period would be to produce a sentence which, overall, would be disproportionate to the severity of the crimes involved.
15 Otherwise, I agree with the remarks of the presiding judge. I am of the view that the application for leave to appeal should be granted, but that the appeal should be dismissed.
16 MEAGHER JA: Before I ask Justice Bell for her views, I would withdraw one part of my remarks. The actual time period involved was not three years as I thought, it was one year.
17 BELL JA: I agree with the orders proposed by Mr Justice Meagher for the reasons which he has given. I also agree with the reasons of the Chief Judge.
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