R v Dubois - [2004] SASC 79

R v DUBOIS
[2004] SASC 79
Court of Criminal Appeal: Perry, Bleby and Sulan JJ

PERRY J: I agree that the appeal should be dismissed for the reasons published by Sulan J.
BLEBY J: I agree that the appeal should be dismissed. I agree with the reasons of Sulan J.
SULAN J:
Introduction
The appellant pleaded guilty to thirty one counts of false pretences. He requested that a further twenty one offences of a similar nature be taken into consideration. The maximum penalty for each offence is four years imprisonment. The offending occurred over approximately five years and involved numerous victims. The amount involved was in the order of $2,000,000. The appellant was sentenced to twelve years imprisonment, with a non-parole period of eight years. The sentence was to take effect from 8 February 2002, the date upon which the appellant was taken into custody. He has appealed against the sentence.
Background
The offences occurred when the appellant was conducting his own business of a financial planner, which involved giving advice to clients in the area of insurance, investments, financial brokerage and mortgages. Prior to establishing his business in 1991 the appellant had been a partner in a financial planning group. He employed a number of staff and he had a large client base of about 800 clients, many of whom had followed him when he commenced his own business. Some clients had become personal friends of the appellant and trusted him implicitly.
In addition to his business of financial planning, the appellant conducted a number of other businesses which required monies to be injected into them. In 1995 he purchased a property for approximately $2,000,000. That property required a re-fit. Substantial funds needed to be obtained to meet the financing costs. Some of the monies received from clients were used for that purpose.
The appellant enjoyed an enhanced lifestyle, including travelling overseas with his family. He used monies that were taken from his victims to maintain his business ventures, to pay business debts, to make unauthorised investments with inadequate or no security and to pay personal expenditure. He was financially ambitious and he took financial risks.
The appellant is 53 years of age. He is married with three children. Prior to commencing his own business, he had worked as a financial advisor, having partially completed a course in accounting. He has had a good work record.
The sentencing judge accepted that the appellant’s pleas of guilty have saved significant time and expense in a difficult investigation. He has saved his victims the trauma associated with having to give evidence.
The judge concluded that the appellant was motivated by greed. There can be no other explanation for his conduct. The judge gave some examples to illustrate the seriousness of the suffering that the appellant has caused. It is not necessary to detail the circumstances of individual cases. The fraud has had a devastating effect upon many of his victims. The offending has caused them much anxiety. Their health has suffered.

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 Dubois

Details

AGLC: R v Dubois [2004] SASC 79
Case: [2004] SASC 79
Decision Date: 2 April 2004

CaseChat Overview and Summary

In the case of R v Dubois, the appellant pleaded guilty to thirty-one counts of false pretences and requested that a further twenty-one similar offences be taken into account. Each offence carried a maximum penalty of four years imprisonment. The offending spanned approximately five years and involved numerous victims, with the total amount defrauded being around $2,000,000. The appellant, who was a financial planner, was sentenced to twelve years imprisonment with a non-parole period of eight years, with the sentence to commence from the date of his custody on 8 February 2002. The appellant has appealed against the sentence.

The primary legal issue for the court was to determine whether the sentence imposed was excessive or manifestly inadequate. The appellant argued that the sentence was manifestly excessive, taking into account his guilty pleas, the savings to the state and victims, his remorse, and his prospects of rehabilitation. The court had to weigh these factors against the severity and impact of the offending on the victims, who were largely elderly and financially vulnerable.

The court held that the sentence was not manifestly excessive. It considered the appellant's guilty pleas, the significant savings to the state and victims in terms of time and trauma, and the appellant's remorse. However, the court emphasised the severity of the offending, the substantial amount defrauded, and the devastating impact on the victims. The court concluded that the sentence was proportionate to the gravity of the offences and the need to deter such conduct in the future. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The appellant pleaded guilty to thirty one counts of false pretences. He requested that a further twenty one offences of a similar nature be taken into consideration. The maximum penalty for each offence is four years imprisonment. The offending occurred over approximately five years and involved numerous victims. The amount involved was in the order of $2,000,000. The appellant was sentenced to twelve years imprisonment, with a non-parole period of eight years. The sentence was to take effect from 8 February 2002, the date upon which the appellant was taken into custody. He has appealed against the sentence. Background The offences occurred when the appellant was conducting his own business of a financial planner, which involved giving advice to clients in the area of insurance, investments, financial brokerage and mortgages. Prior to establishing his business in 1991 the appellant had been a partner in a financial planning group. He employed a number of staff and he had a large client base of about 800 clients, many of whom had followed him when he commenced his own business. Some clients had become personal friends of the appellant and trusted him implicitly. In addition to his business of financial planning, the appellant conducted a number of other businesses which required monies to be injected into them. In 1995 he purchased a property for approximately $2,000,000. That property required a re-fit. Substantial funds needed to be obtained to meet the financing costs. Some of the monies received from clients were used for that purpose. The appellant enjoyed an enhanced lifestyle, including travelling overseas with his family. He used monies that were taken from his victims to maintain his business ventures, to pay business debts, to make unauthorised investments with inadequate or no security and to pay personal expenditure. He was financially ambitious and he took financial risks. The appellant is 53 years of age. He is married with three children. Prior to commencing his own business, he had worked as a financial advisor, having partially completed a course in accounting. He has had a good work record. The sentencing judge accepted that the appellant’s pleas of guilty have saved significant time and expense in a difficult investigation. He has saved his victims the trauma associated with having to give evidence. The judge concluded that the appellant was motivated by greed. There can be no other explanation for his conduct. The judge gave some examples to illustrate the seriousness of the suffering that the appellant has caused. It is not necessary to detail the circumstances of individual cases. The fraud has had a devastating effect upon many of his victims. The offending has caused them much anxiety. Their health has suffered. His victims included people who had retired and who relied on his advice. They did not have skills in financial management. They did not question him and, on many occasions, he lied to them about their investments. He assured them that their investments were secured when he had misused their money. Their money has been lost.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appeal must be dismissed. JUDGMENT CITATIONS

Ratio Decidendi

Legal Principle Established

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