R v Lowe No. Sccrm-03-145

R v LOWE
[2003] SASC 336
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Prior J.
PRIOR J: The appellant pleaded guilty in the Magistrates Court to four counts of falsification of accounts. In this appeal he complains of the sentence imposed for those four offences. The sentence and non-parole period are said to be manifestly excessive. It is further said that any sentence of imprisonment should have been suspended.
In the District Court, the sentencing judge imposed a single sentence of 40 months imprisonment for those four offences. His Honour set a non-parole period of 27 months. The sentencing judge was unable to find good reason to suspend that sentence. His Honour said that the various matters referred to in his sentencing remarks, when taken together, were not sufficient to make it proper for him to suspend the sentence. Thus, His Honour failed to find good reason to suspend the sentence of imprisonment and did not do so.
The four counts of falsification of accounts were amongst 29 similar counts against Geoffrey Collins. Mr Collins was a bank manager, employed by ANZ Bank at Victor Harbor. Mr Collins admitted the 33 offences charged against him had occurred during the course of his employment with the bank; his offending arising from the establishment of a series of loans in fictitious names and three loan accounts established in the name of the appellant’s mother. Collins was sentenced to imprisonment for four and a half years with a non-parole period of three years. The amount of Collins’ total defalcation was $1207496.20. $451061 of that amount involved the appellant.
The appellant was also employed by the bank at Victor Harbor. His admitted offences all related to the loan established in the name of his mother. The appellant was not aware of five other loan accounts established by Mr Collins and the offences committed in relation to them.
The appellant opened an account as part of an agreement between him and Collins, to use the names of relatives to generate loan capital for a company the two had formed together. The appellant’s mother was an existing bank account holder. She was aware of the existence of the loan. However, she did not receive any of the funds from the loan and did not make any repayments in relation to it. A circumstance of aggravation was that the appellant’s mother would not have qualified for investment and business loans totalling $250000 if proper bank procedures had been followed. She had no substantial assets to put up as security. The money from the appellant’s mother’s loan was drawn for use by the company the appellant and Collins had formed. Repayments for the loan were serviced by that company. The motivation for those offences was to obtain funds for their company and for Collins to obtain funds for another similar company. The amount outstanding with respect to the appellant’s mother’s account as at 31 December 2002, the time of the detection of the offending, was $164370.85
The appellant and his manager admitted that it was on, or about 28 May 1997 that they falsified the account in the name of the appellant’s mother. The majority of the funds ultimately obtained from that loan were transferred to the company already mentioned. Indeed, on the same day as the account was opened, on 28 May 1997, $19900 was transferred to an account in the name of the company of which the appellant and his former manager were co-directors. Other falsifications occurred in September 1998 with respect to $31161.10 and on 2 March 1999 with respect to an internal debit voucher in the name of sundry account settlements in the sum of $150000. The fourth offence was committed on about 31 August 1999. The amount then was $250000 by way of an electronic debit drawn on the appellant’s mother’s business loan account. Part of those funds were transferred to other accounts in the name of either the appellant’s mother or himself, or the company that he and Mr Collins were directors of.
In his sentencing remarks, the sentencing judge pointed out that the appellant and Mr Collins were both senior employees of the bank at Victor Harbor in 1997 and that both were well aware of the bank’s directions and policies in relation to lending the bank’s money. In particular, the appellant knew that he could not approve loans to himself or to members of his family or in excess of $250000.
The appellant’s mother was in a precarious financial situation when the loans were set up in her name. The appellant and his former manager agreed to make certain advances for the benefit of the appellant’s mother, incorporating the company of which they were both co-directors substantially to speculate in real estate and shares. The offences were detected after a new manager succeeded Mr Collins. Recovery action instituted by the bank has left a loss with respect to the appellant’s offending of about $136000. With respect to Collins, the amount was then $393325.93
The sentencing judge observed that the appellant was a man of otherwise excellent character who had worked hard, raised and was continuing to raise a decent family. He had participated in community affairs and had no previous convictions. The appellant was full of remorse. The sentencing judge accepted that he was unlikely to re-offend, great shame and hardship having befallen the appellant and his manager as a result of those offences becoming known. Whilst acknowledging that, the sentencing judge said that those important matters did not take the case out of the ordinary.
The sentencing judge said that the court had to give effect to elements of personal and general deterrence and regard them as more important than personal and family considerations. His Honour’s observation was that secret crime was hard to detect and had to be punished severely. That being said, the sentencing judge said he would not ignore the personal considerations that had been put on the appellant’s behalf. The cooperation with the bank and the police was acknowledged. The sentencing judge indicated that he would regard it as artificial to attempt to distinguish between the appellant and his manager as to a discount for their respective pleas of guilty. He indicated that he would allow a discount of 25 per cent on their sentences for their pleas of guilty. His Honour acknowledged that the appellant hoped and intended to repay the bank and that an element, in the beginning, was to assist the appellant’s mother. In that sense, His Honour said there was a time when, though the appellant and his manager well knew that what they were doing was not legal, they did not intend that the bank would lose money. An opportunity to make repayments passed without that having occurred. Speculation at the bank’s expense continued. The appellant had made efforts to pursue other employment. In all the circumstances the sentence of 40 months was imposed. His Honour started with a head sentence of four and a half years and reduced it to 40 months for the pleas of guilty. As already noticed, the non-parole period of 27 months was fixed.
In this appeal the appellant’s counsel emphasised that the appellant was younger than Mr Collins, junior to him in the Bank and to be sentenced for four, not 33 offences.
Both the head sentence and non-parole period are said to be manifestly excessive when compared with other cases of falsification of accounts and with the sentence passed upon Mr Collins. It was submitted that the disparity in the sentences imposed upon Mr Collins was sufficient to engender a justifiable sense of grievance. The head sentence imposed upon Mr Collins was about one-third more for so many more offences. Any sense of grievance experienced by the appellant appears to me to be of the kind that has to be tolerated in the public interest[1]. The offences committed by both men were such that considerations of general deterrence are of paramount importance. The sentences for both offenders had to act as a deterrent to others in similar positions. Thus, both offenders had to have a substantial sentence of imprisonment imposed upon them.
[1] King CJ, R v MacGowan (1986) 42 SASR 580 at 583
The sentence imposed upon Mr Collins would have to be described as merciful and probably inadequate rather than just moderate. That imposed upon the appellant cannot of itself be properly described as manifestly excessive, either as to the head sentence or the non-parole period given the views of this Court with respect to this kind of offending[2]. The Chief Justice properly described it in Cavanagh[3] as “premeditated, deliberate and repetitive. Deterrence must therefore be a predominant factor in the sentence”.
[2]see for example: R v Davies (1996) 88 A Crim R 226 at 229; R v Cavanagh [1999] SASC 418 at [21]; R v Powell (2001) 81 SASR 9 at [35]
[3] [19991] SASC 418 at [21]
With respect to the non-parole period, that had to reflect the gravity of the appellant’s offending and also reflect principles of general deterrence. It cannot be said to be manifestly excessive when viewed against the head sentence or the application of proper sentencing principles[4]. The appellant’s previous good character was not overlooked by the sentencing judge. His Honour could only give it limited weight[5]. In R v Davies[6], Cox J said:
“The deterrent effect of a sentence or non-parole period upon other people of good reputation, in a similar position and similarly tempted, would be substantially diminished if persons who commit a series of offences of this kind are still given substantial credit for their previous good character. Nor for the same reason should much allowance be made for the circumstance that, as is almost always the case, such a defendant is unlikely to offend again.”
[4] R v Davies at 216; R v Powell at [37]
[5] See Perry J in Powell at [36]
[6] (1996) 88 A Crim R 226 at 229; (1996) 187 LSJS 467 at 470
The complaint of disparity cannot justify intervention by this Court. The disparity principle is that parties to the same offences should, if other things are equal, receive the same sentence[7]. The fact that one co-offender has received a sentence more severe than that imposed on a co-offender whose circumstances are comparable provides no reason in logic for reducing the former sentence. However, though a sentence against such a co-offender, viewed in isolation, is not manifestly excessive a court may reduce a sentence, not in itself manifestly excessive, in order to avoid a marked disparity with a sentence imposed upon a co-offender. The court interferes because, in such a case, the disparity is considered by it to be such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done[8].
[7] See Lowe v R (1984) 154 CLR 606 at 609
[8] Lowe v R (1984) 154 CLR 606 at 609 and 610
The principle may well be confined to the situation of persons parties to the same number of offences. On that basis, the appellant could not invoke the principle given that he is a co-offender to four, not 33 offences. However, assuming the principle, or its spirit can be invoked in such a case as this, I am not satisfied that the circumstances do give rise to a justifiable sense of grievance or give the appearance that justice has not been done to the appellant. If, in fact, there were a justifiable sense of grievance experienced by the appellant in this case such a sense of a grievance would have to be tolerated in the public interest for the reasons clearly explained by King CJ in R v MacGowan[9]. An indulgent or inadequate penalty imposed upon Mr Collins for his total offending cannot permit the imposition of a lesser penalty upon the present appellant.
[9] R v MacGowan (1986) 42 SASR 580 at 583
The sentence imposed on the appellant was well within the sentencing judge’s discretion. He has taken all proper circumstances into account. No error in the exercise of his sentencing discretion has been made out.
I should add that, so far as there is a suggestion of delay in concluding these proceedings, it seems to me that the sentencing remarks disclose that the sentencing judge did give some consideration to the delay between the discovery of the offences and the sentence. I agree with the submission put that any delay would not be unusual given the complexities of the matter. In any event, the delay was not occasioned by any action taken by the prosecution.
The appeal should be dismissed.
VANSTONE J: I would dismiss the appeal. I agree with the reasons given by Prior J.

[2003] SASC 336

2 October 2003