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R v Cowen

R v Cowen

Case [2010] VSC 321 9 August 2010

Criminal Liability

Sentencing

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1468 of 2009

THE QUEEN

RACHEL MAREE COWEN

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9-12, 15, 16, 18, 19, 22-26, 29 March, 16, 20 April and 20 July 2010.
DATE OF SENTENCE:	9 August 2010
CASE MAY BE CITED AS:	R v Cowen
MEDIUM NEUTRAL CITATION:	[2010] VSC 321

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CRIMINAL LAW – Sentence – Dishonestly obtaining property by deception – Share registry fraud - Reduced culpability due to subordinate role in offending – Mother of six children with no prior convictions – Two sons and husband suffer autistic conditions – Exceptional circumstances established – Sentence of three years imprisonment, non-parole period of one year.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Kidd and Mr D Porceddu	Office of Public Prosecutions
For the Accused	Mr F Andrighetto	Cynthia A. Toose & Associates

HIS HONOUR:

Rachel Maree Cowen, on 29 March 2010 a jury found you guilty of dishonestly obtaining the Australian listed shares of G H Kluge & Sons Limited by deception, by falsely representing to Computershare Investor Services Pty Ltd that you had authority to sell all of G H Kluge & Sons’ Australian shareholdings.

The maximum penalty for this offence is 10 years’ imprisonment.

On 16 and 19 April 2010 and on 20 July 2010, I heard a plea in mitigation on your behalf.

The circumstances of your offending can be summarised as follows.[1]
[1]I am bound to sentence the offender on a factual basis which is consistent with the jury’s verdict. Otherwise, in relation to matters adverse to the offender, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in her favour which are established on the balance of probabilities: R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].

On 24 June 2008 you attended at the offices of Computershare, which acts as the share registry for a large number of Australian publicly listed companies. You had with you 33 share transfer forms purportedly signed by an officer of G H Kluge & Sons as transferor. The transferee named on those forms was you. You also had with you an original letter of authority purportedly from G H Kluge & Sons dated 15 June 2008. That original letter was copied that day by Computershare staff and then returned to you by post at your request.

The 33 share transfer forms had been completed with all of the particulars which are necessary to effect a transfer. Each form contained correct details in relation to each individual shareholding. Most importantly, each form contained the correct shareholder registration number. You had obtained these details, including the shareholder registration numbers, from a Computershare staff member prior to 24 June 2008 relying on the purported authority constituted by the…

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 Cowen

Details

AGLC: R v Cowen [2010] VSC 321
Case: [2010] VSC 321
Decision Date: 9 August 2010

CaseChat Overview and Summary

The case of R v Cowen involved the defendant, Cowen, who was charged with dishonestly obtaining property by deception through involvement in a share registry fraud. The dispute was heard in the County Court of Victoria. The primary issue for the court was to determine the appropriate sentence for Cowen, considering the mitigating factors presented, such as her subordinate role in the offending, her status as the mother of six children, the absence of prior convictions, and the exceptional personal circumstances, including the autistic conditions of her two sons and husband.

The court had to balance the need for general deterrence and denunciation of the offence against the mitigating factors presented. The judge acknowledged Cowen's limited involvement in the fraud, her role as a primary caregiver for her family, and the exceptional personal circumstances. These factors were considered to significantly reduce her culpability. The court also took into account the potential impact of imprisonment on her family, particularly given the vulnerable conditions of her children and husband. The judge found that these circumstances warranted a reduced sentence to reflect Cowen's lesser role and her family's needs.

After weighing all the factors, the court sentenced Cowen to three years imprisonment, with a non-parole period of one year. This sentence was deemed appropriate given the mitigating factors and the need to balance the requirements of justice with the personal and family circumstances of the defendant. The court concluded that this sentence would adequately address the offence while also considering the impact on Cowen's family and her role as a caregiver.

Orders