R v Hignett No. Sccrm-00-147 - [2000] SASC 280

R v HIGNETT
[2000] SASC 280

CRIMINAL

REASONS FOR RULING

1................ GRAY J............ ROBERT JAMES HIGNETT, you have pleaded guilty to 70 counts of fraudulent conversion contrary to section 184 of the Criminal Law Consolidation Act 1935 (SA). These counts arise out of a course of conduct between 27 April 1993 and 23 November 1998. You have asked that a further 254 offences of fraudulent conversion be taken into account. These offences occurred between 3 May 1992 and 3 November 1998. All involved the same victim. The total sum fraudulently converted was $893,843.93.

In the mid 1980s, as an employee of a real estate firm, you were responsible for the management of two shopping centres owned by Mr Mackenzie, his wife and related companies. In April 1988, you left your employer to establish your own property management business. Mr Mackenzie had been impressed by your management. On setting up your own business, he retained you to manage his properties. You received considerable rewards. You were paid a fixed fee of between $25,000 and $30,000 per annum, and in addition, received amounts for letting commissions and bonuses. Beyond that, you received two loans totalling more than $35,000 at little or no interest.
You befriended Mr Mackenzie and his wife. Your victim trusted you to represent his interests honestly. His confidence and trust in you was partly due to the friendship that you fostered.
In October 1990, Mr Mackenzie, then aged 70, suffered a stroke. He became heavily, if not totally, reliant upon you for the proper management of both his properties. His friendship and trust in you, combined with his age, illness and disabilities, made him vulnerable. You recognised this vulnerability and took advantage of it for your personal gain. Your fraud went undetected for many years.
As part of your management duties you held deposit books. Each deposit book contained forms in triplicate. This allowed one copy to be left with the deposit book, another to be retained by the bank and the third was to be attached to the monthly statements which were provided to Mr Mackenzie. You would provide regular monthly statements, setting out rents received and banked. This allowed a reconciliation with the bank statements. These records gave the appearance that matters were in order. However, your dishonest plan involved taking rent from tenants and applying it to your own benefit. You did not fill out the deposit slips or bank the monies or cheques as your job required.
You utilised a number of dishonest methods to defraud Mr McKenzie. A number of tenants were persuaded to make cash payments to you. You represented to them that you would use the money for their rent payments. Instead, you applied the cash for your own purposes. Four counts, totalling $12,223.81, and 58 of the offences to be taken into account, totalling $92,404.01, relate to fraudulent transactions of this type.
The other counts and other offences to be taken into account involve a total of $789,216.11. The dishonest technique…

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.

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Details

Case: [2000] SASC 280
Decision Date: 2 August 2000

CaseChat Overview and Summary

The matter before the court was a criminal case involving the defendant, Robert James Hignett, who had pleaded guilty to 70 counts of fraudulent conversion. The offences occurred between 27 April 1993 and 23 November 1998. The defendant also requested that 254 additional offences of fraudulent conversion be taken into account, which occurred between 3 May 1992 and 3 November 1998. The total amount fraudulently converted was $893,843.93. The court was required to determine the appropriate sentence for the defendant, taking into account various factors such as the nature and extent of the offending, the defendant's guilty plea and cooperation, and the impact on the victim.

The court found that the defendant's offending was grave and had a significant impact on the victim, Mr. Mackenzie, who was elderly and vulnerable. The court noted that the defendant had taken advantage of his position of trust and had continued his offending for over six years. The court also considered the defendant's background, including his employment history and family circumstances. The court concluded that the defendant was motivated by greed and had provided only vague information about what he had done with the proceeds of his crimes.

The court determined that the appropriate sentence should reflect the gravity of the defendant's conduct and serve as a warning to others. The court fixed a head sentence of ten years and a non-parole period of six years, taking into account the defendant's guilty plea and cooperation. The court also noted that the severity of sentences for substantial frauds should be increased, in line with recent decisions of the Court of Criminal Appeal.

The court ordered that the sentence be effective from the date of the defendant's custody, 19 July 2000.

Orders