R v Hodgson - [2002] SASC 349

R v HODGSON
[2002] SASC 349
Court of Criminal Appeal: Doyle CJ, Debelle and Williams JJ

DOYLE CJ I would allow the appeal and set aside the sentence. I would fix a head sentence of six years which I would reduce to five years and six months because the appellant has undertaking to co-operate with law enforcement agencies in future proceedings. I would fix a non-parole period of three years which I would reduce to two years and nine months, because the appellant has undertaken to co-operate with law enforcement agencies in proceedings. I agree with the reasons given by Debelle J for making those orders, and in particular with his comment that the sentence in this particular case should be seen as particularly lenient.
DEBELLE J This is an appeal against sentence.
From February 1999 to March 2001 the appellant was the Chief Financial Officer of the Harris Scarfe group of companies. He had joined the group in 1994 as General Manager Administration and had held that position until promoted to Chief Financial Officer in 1999. He was secretary of Harris Scarfe Holdings Ltd and Harris Scarfe Ltd as well as being a director of Harris Scarfe Ltd from November 1997 until March 2001. He was the individual primarily responsible for the accounts of the Harris Scarfe group.
The appellant has pleaded guilty to 32 counts of falsely representing the profits of the Harris Scarfe group in different kinds of reports. More particularly, he pleaded guilty to 18 counts of acting in breach of s 1317FA and s 232(2) of the Corporations Act in that, being an officer of Harris Scarfe Ltd and intending to deceive members of the board of Harris Scarfe Holdings Ltd, he did not act honestly in the exercise of his powers and in the discharge of his duties in that he falsely procured the making of false entries in the books of account of Harris Scarfe Ltd thereby falsely creating an increased level of profit in the consolidated accounts of Harris Scarfe Holdings Ltd. Each of the 18 counts contains particulars of the total amount of the false entries and the particulars cover the period from 28 March 1998 to March 2000. The maximum penalty for each offence was a fine of $200,000 or five years imprisonment or both.
The appellant also pleaded guilty to six counts of breaches of s 184(2) and s 1400 of the Corporations Act in that, being an employee of Harris Scarfe Ltd, he used his position dishonestly and recklessly as to whether he might cause detriment to the company by making false entries in the books of account of the company thereby falsely creating an increased level of gross profit in the consolidated accounts of Harris Scarfe Holdings Ltd. The six counts particularise various sums of money the subject of each count at different times in the period from March 2000 to February 2001. The maximum penalty for each offence is a fine of $20,000 or five years…

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 Hodgson

Details

AGLC: R v Hodgson [2002] SASC 349
Case: [2002] SASC 349
Decision Date: 24 October 2002

CaseChat Overview and Summary

The case of R v Hodgson is an appeal against sentence by the appellant, who was the Chief Financial Officer of the Harris Scarfe group of companies. He had pleaded guilty to multiple counts of falsely representing the profits of the Harris Scarfe group in various reports, as well as disseminating false information to the Australian Stock Exchange. The primary legal issues in this case were whether the sentence imposed by the sentencing judge was manifestly excessive and whether the judge failed to comply with s 21E of the Crimes Act 1914 (Cth) by not specifying the reduction for the appellant's future cooperation with law enforcement agencies.

The Court of Criminal Appeal found that the starting point of the sentence was merciful, given the gravity of the offending and the consequences it had on the shareholders, creditors, and the general public. The Court agreed with the sentencing judge that the reduction for the appellant's plea of guilty and past cooperation was appropriate. However, the Court found that the sentencing judge failed to comply with s 21E of the Crimes Act, as he did not specify the reduction for the appellant's future cooperation with law enforcement agencies. The Court decided to reduce the head sentence by six months and the non-parole period by three months, reflecting the likely utility of the assistance to be provided while maintaining the deterrent effect of the sentence.

The final orders of the Court of Criminal Appeal were to allow the appeal and set aside the original sentence. A new head sentence of six years was fixed, reduced to five years and six months due to the appellant's undertaking to cooperate in future proceedings. The non-parole period was set at three years, reduced to two years and nine months for the same reason. The Court emphasized that the sentence in this case should not be seen as a benchmark for future cases of a similar nature.

Orders