R v De Souza - [2001] NSWCCA 94

CITATION: R v DE SOUZA [2001] NSWCCA 94

FILE NUMBER(S): CCA 60341/00

HEARING DATE(S): 23/03/2001

JUDGMENT DATE:
23 March 2001

PARTIES :

REGINA v Terence Clifford DE SOUZA

JUDGMENT OF: Studdert J at 33; Barr J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0376

LOWER COURT JUDICIAL
OFFICER : Nash ADCJ

COUNSEL : Crown: WL Robinson QC
Applicant: In Person

SOLICITORS: Crown: SE O'Connor

CASES CITED:
Regina v Edwards (1996) 90 A Crim R 510

DECISION: Leave to appeal granted; Appeal dismissed

60341/00

STUDDERT J
BARR J

REGINA v Terence Clifford DE SOUZA

JUDGMENT

1 STUDDERT J: I will ask Barr J to deliver the judgment.

2 BARR J: Terence De Souza seeks leave to appeal against sentences imposed in the District Court. The applicant pleaded guilty before a magistrate and in due course confirmed his pleas before Nash ADCJ to a number of charges arising out of his dishonest conduct as a life assurance agent.

3 Altogether there were twenty charges, four of using a false instrument, the maximum penalty for which was ten years’ imprisonment, fifteen of fraudulent misappropriation, the penalty for which was seven years’ imprisonment, and one of dishonestly obtaining a financial advantage, the maximum penalty for which was five years’ imprisonment. His Honour was asked to take into account under the provisions of Crimes (Sentencing Procedure) Act fifteen charges of using a false instrument, nineteen of making a false instrument and thirty-two of fraudulent misappropriation. All the offences were committed between October 1990 and November 1995.

4 On nineteen of the twenty counts, comprising all except one of the counts of fraudulent misappropriation, his Honour sentenced the applicant to penal servitude for a fixed term of four years, commencing on 20 March 1998, and expiring on 19 March 2002. On the remaining count of fraudulent misappropriation, and taking into account the other matters I have summarised, his Honour sentenced the applicant to penal servitude for seven years, comprising a minimum term of four years concurrent with the fixed terms and an additional term of three years.

5 The applicant was an agent of the AMP Society and was in a position to advise its policy holders about, amongst other things, the surrender of policies and the investment of funds. Over the period of five years the applicant repeatedly advised policy holders to surrender policies and invest the resulting funds in what he called a pooled investment by AMP and the Macquarie Bank. He told the policy holders that the income from the fund would be tax free and would not affect pension rights. That was a matter of some importance because several of the people he advised were pensioners.

6 Altogether there were twenty-three victims of the applicant’s scheme. Three were in their late twenties, four were in their thirties, three were in their fifties, ten were in their sixties, two were in their seventies and one was eighty-three years of age. Not all of them could fully understand, read…

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 De Souza

Details

AGLC: R v De Souza [2001] NSWCCA 94
Case: [2001] NSWCCA 94
Decision Date: 23 March 2001

CaseChat Overview and Summary

Terence De Souza sought leave to appeal against his sentences as imposed by the District Court. The applicant had pleaded guilty to a number of charges arising from his dishonest conduct as a life assurance agent, including using a false instrument, fraudulent misappropriation, and dishonestly obtaining a financial advantage. The applicant's Honour was asked to take into account various charges under the Crimes (Sentencing Procedure) Act. The applicant was sentenced to a total of seven years in penal servitude, four years of which were fixed terms and the remaining three years were additional terms. The applicant's Honour considered the subjective features of the case, the prospects of rehabilitation, and the need for counselling and psychiatric assistance if required. The Court of Criminal Appeal was required to determine whether the sentencing process was accompanied by error and if so, to decide the proper consequences. The applicant contended that the sentence was manifestly excessive and that the sentencing judge erred by not considering certain subjective features of the applicant's background, the effect on his family, financial restitution, his confession and plea of guilty, and his prospects for rehabilitation. The Court found that the applicant's Honour had considered the relevant factors and that the sentence was within the sentencing discretion of the trial judge. The Court granted leave to the applicant to appeal but dismissed the appeal.

Orders