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R v Cavanagh

R v Cavanagh

Case [1999] SASC 418 23 September 1999

Fraudulent Conversion

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R v CAVANAGH
[1999] SASC 418

Court of Criminal Appeal: Doyle CJ, Debelle and Wicks JJ (ex tempore)

DOYLE CJ. I agree that the appeal should be allowed. I agree with the reasons given by Debelle J.
I would add just this. The sentence is high compared with other sentences for similar offences. Some reduction is appropriate on that basis. But, in my opinion, the time has arrived for an increase in the sentences imposed for substantial frauds of this kind for the reasons indicated by Debelle J. This was what Cox J foreshadowed in R v Davies (1996) 187 LSJS 467; 88 A Crim R 226. In future, a sentence of the order originally imposed by the sentencing judge would not be regarded by me as inappropriate.
DEBELLE J. The appellant pleaded guilty to 144 counts of fraudulent conversion. He was ordered to serve a period of imprisonment for nine years. The sentencing judge fixed a non-parole period of five years. The appellant appeals against the sentence on the ground that it is manifestly excessive.
The separate counts of fraudulent conversion arise out of a course of conduct extending over about four and a half years from March 1991 to November 1995. There are three separate victims. They are the Trustee Companies Officers Association (14 counts); an elderly widow, Mrs J.N. Ray (83 counts); and another elderly widow, Mrs H.N. House (47 counts). The total amount involved is some $240,000.
From 1991 to 1992 the appellant had been employed by two trustee companies in Adelaide as a consultant and financial adviser. In about 1980 he took up a position on the committee of the Trustee Companies Officers Association. He later became treasurer and in about 1987 or 1988 he became president. He was still president of the association in 1991 and 1992. In October 1992 the appellant commenced employment as a wills officer with Von Doussas, a firm of solicitors. His employment was terminated on 24 February 1995.
As president of the Trustee Companies Officers Association, the appellant was one of a number of signatories of the Association's bank account. Cheques required only one signature. The appellant and his wife operated a bank account in the name of Sangora Investments. Between March 1991 and July 1992, while President of the Association, the appellant drew cheques on the Association's bank account payable to Sangora and other payees. The cheques totalled some $29,000.
In January 1993, when employed at Von Doussas, the appellant prepared a will for Mrs House. In April 1994 Mrs House went to Von Doussas and again saw the appellant. She arranged that the proceeds of the sale of her house property be invested in a trust account in her name and in the name of her niece. The appellant arranged for an account to be opened at National Australia Trustees in the name of appellant as trustee for Mrs House and her niece. The appellant was the sole signatory of the account. Proceeds of the sale were…

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 R v Cavanagh

Details

AGLC: R v Cavanagh [1999] SASC 418
Case: [1999] SASC 418
Decision Date: 23 September 1999

CaseChat Overview and Summary

The case of R v Cavanagh was heard by the South Australian Court of Criminal Appeal, comprising Doyle CJ, Debelle, and Wicks JJ. The appellant, who had pleaded guilty to 144 counts of fraudulent conversion, was sentenced to imprisonment for nine years, with a non-parole period of five years. The appellant appealed against the severity of the sentence. The Court of Criminal Appeal found the original sentence to be manifestly excessive and varied it to a sentence of eight years imprisonment, with the non-parole period remaining at five years.

The court was required to decide whether the sentence imposed was appropriate for the gravity of the appellant's offences. The appellant had abused his position of trust in various roles, including as president of the Trustee Companies Officers Association and as a wills officer, to fraudulently convert funds amounting to approximately $240,000 over a period of four and a half years. The victims included two elderly widows and the Trustee Companies Officers Association. The court considered the severity of the offences, the impact on the victims, and the need for deterrence.

The court noted that the appellant's actions were deliberate, repetitive, and motivated largely by greed. The court emphasised that breaches of trust of this kind demand severe punishment to ensure general and specific deterrence. The court recognised the significant emotional and financial impact on the victims, particularly the two elderly widows who were left with no realistic prospect of restitution. The court also considered the appellant's expressions of remorse and contrition, although these were somewhat undermined by his late plea of guilty. Ultimately, the court concluded that the original sentence was excessive and varied the sentence to eight years imprisonment with a non-parole period of five years.

Orders