R v English-Russell - [2002] NSWCCA 179

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Tomich [2002] NSWCCA 175

FILE NUMBER(S):
60449/01

HEARING DATE(S): 13 May 2002

JUDGMENT DATE: 13/05/2002

PARTIES:
Heather Leigh Tomich v Regina

JUDGMENT OF: O'Keefe J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0440, 00/31/043, 00/31/0243

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
(A) T S Corish
(C) G I O Rowling

SOLICITORS:
(A) D J Humphreys
(C) S E O'Connor

CATCHWORDS:
Sentencing; global sentencing impermissible; misdescription of offences; need careful adherence to provisions of Crimes (Sentencing Procedures) Act 1999 when dealing with Form 1 offences; need for deterrent sentences when dealing with financial frauds on an employer and breaches of trust; compelling subjective features

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
See paragraphs 43 and 44

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60449/01

O'KEEFE J
SMART AJ

Monday 13 May 2002

REGINA v HEATHER LEIGH TOMICH

JUDGMENT

SMART AJ: Heather Leigh Tomich seeks leave to appeal out of time against the asserted severity of sentences of imprisonment imposed upon her in the District Court on 8 June 2001 consequent upon her plea of guilty to each offence. As the application was filed but nine days late, the applicant did not realise that she was required to lodge her appeal within 28 days and there are matters of substance to be argued an extension of time should be granted.

On the charge of on 14 October 1998 at Bateau Bay, then being a clerk of St George Bank Limited stealing $15,000, she was sentenced to a fixed term of three years commencing on 12 April 2001. On two charges of larceny as a clerk of the bank, being $1,000 on 14 July 1999, and $1,000 on 26 July 1999, she was sentenced to a fixed term of two years commencing on 12 April 2001. It is not clear whether the judge intended to impose that sentence on each count. Having regard to what she did on the next group of charges it may well have been a group sentence for the two offences. The maximum penalty for larceny as a clerk under s 156 of the Crimes Act1900 is ten years imprisonment

Rectifying the judge's description of the offences on:
(i)Ten counts of larceny as a clerk of the bank extending over the period 15 October 1998 to 2 February 2000, on different days mainly in 1999, and involving amounts ranging from $500 to $3,000 (Crimes Act, s 156);
(ii)Four counts of intentionally and without authority or lawful excuse inserting data stored in a computer, namely term deposit accounts of Mr and Mrs Wymark (15 February 1999 and 14 July 1999), and Mrs K Cracknell (12 April 1999 and 9 September 1999) (Crimes Act, s 310 (a) - now repealed - maximum custodial penalty ten years);
(iii)Six counts of intentionally and without authority or lawful excuse altering data stored in a computer, namely the term deposit…

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.

Keep reading for free

Create a free CaseChat account to read R v English-Russell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWCCA 179
Decision Date: 10 May 2002

CaseChat Overview and Summary

The case of R v English-Russell involved the sentencing of the respondent, who was found guilty of multiple offences, including dishonestly obtaining financial benefit, fraud, and theft. The respondent had misappropriated funds from their employer, amounting to significant financial loss. The case was heard in the District Court of New South Wales, where the presiding judge was tasked with determining an appropriate sentence that balanced the need for deterrence with the individual circumstances of the respondent.

The legal issues before the court encompassed the appropriate approach to sentencing, particularly regarding the aggregation of multiple offences into a single global sentence, the accuracy of offence descriptions in the sentencing process, and the necessity of imposing a deterrent sentence in cases of financial fraud and breaches of trust. The court also considered the compelling subjective features of the respondent, which might mitigate the severity of the sentence.

The court found that a global sentencing approach was impermissible and that each offence should be assessed individually. The misdescription of the offences on the sentencing form was deemed problematic, necessitating strict adherence to the provisions of the Crimes (Sentencing Procedures) Act 1999. The judge emphasised the need for a deterrent sentence in cases involving financial frauds and breaches of trust, highlighting the importance of protecting employers from such betrayals. The compelling subjective features of the respondent, while relevant, did not outweigh the necessity for a sentence that effectively deterred similar conduct in the future. Ultimately, the court imposed a sentence that reflected the seriousness of the offences while considering the individual circumstances of the respondent.

Orders