R v Lowe No. Sccrm-03-145 - [2003] SASC 336

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…

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 Lowe No. Sccrm-03-145

Details

AGLC: R v Lowe No. Sccrm-03-145 [2003] SASC 336
Case: [2003] SASC 336
Decision Date: 2 October 2003

CaseChat Overview and Summary

The appellant, in this case, appealed against the sentence imposed by the District Court for four counts of falsification of accounts. The appellant had pleaded guilty to these charges. The appellant argued that the sentence of imprisonment and the non-parole period were manifestly excessive and that any sentence of imprisonment should have been suspended. The District Court imposed a single sentence of 40 months imprisonment for the four offences, with a non-parole period of 27 months. The sentencing judge found no good reason to suspend the sentence. The Court of Criminal Appeal dismissed the appeal and upheld the District Court's decision. The Court found that the sentence was not manifestly excessive and was within the sentencing judge's discretion. The Court also noted that the appellant's previous good character was not overlooked but could only be given limited weight in sentencing. The Court further held that the disparity in the sentences imposed on the appellant and his co-offender, Mr Collins, did not justify intervention by the Court. The Court found that the sentence imposed on the appellant was well within the sentencing judge's discretion, and no error in the exercise of that discretion had been made out. The Court also noted that any delay in concluding the proceedings was not unusual given the complexities of the matter and was not occasioned by any action taken by the prosecution.

Orders