R v Malcolm Ernest Campbell
[2001] NSWCCA 162
•9 April 2001
CITATION: R v Malcolm Ernest Campbell [2001] NSWCCA 162 FILE NUMBER(S): CCA 60456/00 HEARING DATE(S): 9/4/2001 JUDGMENT DATE:
9 April 2001PARTIES :
Regina
Malcolm Ernest CampbellJUDGMENT OF: Dowd J at 1; Smart AJ at 30
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 99/11/0717 LOWER COURT JUDICIAL
OFFICER :Hosking DCJ
COUNSEL : Mr P Byrne SC- Applicant
Mr PG Berman SC- CrownSOLICITORS: Mr GJ Gould- Applicant
SE O'Connor- CrownCATCHWORDS: Severity of sentence - Embezzlement - Special circumstances LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999.CASES CITED: R v Pantano (1990) 49 A Crim R 328.
R v Sellen (1991) 57 A Crim R 313.DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.
IN THE COURT OF
CRIMINAL APPEAL
DOWD J
SMART AJ
9 APRIL 2001
60456/00
1 DOWD J: The Court is in a position to give judgment in this matter. Before Hosking SC DCJ, the applicant, who is fifty-four years of age, entered a plea of guilty to 8 counts of embezzlement, contrary to s157 of the Crimes Act 1900 (‘the Act’), which offence carries a penalty of ten years imprisonment; and 8 counts of publishing a document with intent to obtain a financial advantage contrary to s178BB of the Act, which carries a penalty of five years imprisonment.
2 The 8 counts under s178BB of the Act were in respect of the same transactions as the offences under s157 of the Act.
3 In sentencing, His Honour took into account on count 3 311 offences against s157 of the Act, and a further 8 matters under s178BB of the Act on a Form 1. The indictment matters related to offences committed by the applicant from January 1999 to May 1999. The Form 1 matters occurred continuously between December 1995 through to 1999.
4 The prisoner was employed by Metropolitan Business Machines Pty Ltd in July 1995 as a Credit Manager, a position he held until he resigned on 1 June 1999, his duties being to collect invoice funds and arranging for deposits. An audit in May 1999 showed a considerable number of discrepancies. On his arrest on 1 June 1999, the applicant admitted to his employer that he committed the offences, and indicated a desire to completely co-operate with investigative police, and made full and frank admissions.
5 The applicant said that he had been retrenched from his previous position and, having been employed by the company from whom he embezzled, he suffered a reduction in salary. He therefore decided to open accounts into which the company's cheques were paid, removing a total number of cheques in excess of $2,430,000. Most of the cheques, totalling $1.7million, were removed between July 1997 and July 1999. The counts in the indictment were for individual amounts of up to $55,864.
6 The applicant's methodology was that the cheques made payable to his employer were paid by him into other accounts which he had opened. One account was in the name of ‘New Metropolitan Business Machines’, from which account the proceeds of the cheques were later withdrawn and used by the applicant. He repeated this procedure with several different banks.
7 The former employer has received approximately $1.5million by way of recoupment. However, of that sum, only $131,245 has come from either cash held by the applicant or the realisation of assets held by the applicant. The balance has come from the St George Bank and Westpac Banking Corporation.
8 Several other banks are re-negotiating issues of repayment as a result of legal action taken by the proprietor of the employer company.
9 His Honour, on sentence, found that the victim company would be out-of-pocket approaching $1million. The banks are also seeking compensation for the amounts that they have been called upon to pay the victim company as a result of claims made by that company for cheques wrongly paid.
10 The system of the employer company was that it did not take out monthly balances. The applicant said to the police, about the company, that “nothing actually ever balanced you know”.
11 The company had been struggling for several months before the audit, as it had been unable to get supplies as it had not paid its debts. The applicant acknowledged that it was as a result of his own embezzlement that the liquidity problem arose.
12 Some nine months before his arrest in August 1998, the applicant met a woman whom he later set up in Lombok, and for whom he purchased a unit and a block of land.
13 In his Remarks on Sentence, His Honour emphasised that these were extremely serious offences, objectively calling for consideration of both criminal and specific deterrence. His Honour relied on R v Pantano (1990) 49 A Crim R 328, a broadly similar case which collected, in the judgment of Smart J, a number of authorities relevant to sentencing prisoners of this order, might I say, with his usual thoroughness. In his judgment, and as quoted by Hosking SC DCJ in these present proceedings, Smart J at page 336 said that:
“Serious dishonesty offences often extend over a period and involve a series of offences in a continuing line of conduct. A head sentence of 12 years is appropriate for solicitors, chartered accountants and executives of some maturity who have committed a series of offences involving substantial sums.”
14 His Honour, Hosking SC DCJ, then went on in his Remarks on Sentence, through a series of decisions on similar cases which the learned sentencing judge took into account. In sentencing, His Honour found that the offences were objectively extremely serious for four reasons. Firstly, the amount was very large. Secondly, the embezzlements began within six months of employment, and continued for four-and-a-half years on a systematic and sometimes day-to-day basis. Thirdly, the applicant was in possession of knowledge as a credit manager and exploited a weakness in the employer's accounting system. Fourthly, the applicant was in a position of trust.
15 His Honour found that the applicant's resignation only occurred as a result of an audit which was carried out, and which inevitably would have exposed the applicant.
16 The applicant used various banks as a vehicle for embezzling his employer's funds. In his record of interview taken by the investigating police, the applicant said that he had purchased a block of land in Lombok at a cost of about $AU80,000 and also land which cost about $AU250,000.
17 The applicant said that he had met a woman, much younger than he, named Donna Turner, and that he had set her up in Indonesia, and purchased the property.
18 It was submitted on behalf of the applicant that the Sentencing Judge drew a conclusion adverse to the applicant, namely, that the applicant still had access to a vast amount of money stolen, without establishing that fact beyond reasonable doubt. The applicant submitted that this had been taken as an aggravating factor, which should have been established beyond reasonable doubt before it was taken into account against the applicant, and that His Honour did not reach that level of satisfaction, and that it would not have been open to His Honour to do so.
19 It was submitted by the Crown that it should be accepted that a Sentencing Judge, who had taken aggravating circumstances into account in formulating the sentences, would know that he must find that fact proved beyond reasonable doubt.
20 What His Honour in fact said was:
- "The Crown submitted to me that the prisoner has not given a satisfactory account of what has happened to all this money, it is my view that a vast amount of this money has never been satisfactorily accounted for by the prisoner."
21 That is in fact the case. The explanation tendered is only concerning what happened in respect of the woman, Donna Turner, and is very much in the latter part of the whole period of the embezzlement of funds from the employer.
22 Using the term “failing to account”, is merely stating that the applicant has failed to give an explanation as to where the money went. This is simply a statement of fact that he has not given a proper explanation. It is not one of the four matters of which His Honour set out as being factors involving the seriousness of the sentence. And there is in fact, nothing to show that His Honour took that factor into account as an aggravating factor. The penalty that the learned Sentencing Judge imposed is hardly reflective of His Honour having imposed an additional penalty for failure to pay back additional monies on which His Honour considered were available to the applicant.
23 It was further submitted by Counsel for the applicant that His Honour gave insufficient credit for the applicant’s attempts to make restitution for his offences. Counsel for the applicant referred to His Honour’s Remarks on Sentence at page 13:
- "It appears that the prisoner is actually assisting his victim to get as much of the money back from Ms Turner and from Lombok as he can."
24 It appears that His Honour had in fact taken this matter into account. It may well be that His Honour's reference in relation to the failure to account, referred to in the previous ground, can be looked at in the context of His Honour's comments about the applicant actively assisting his victim.
25 The third ground of appeal was that His Honour failed to find special circumstances in terms of s44(2) of the Crimes (Sentencing Procedure) Act 1999. There is no doubt that poor health can constitute special circumstances. Counsel for the applicant has referred to R v Sellen (1991) 57 A Crim R 313, a case which did, however, involve hardship in prison which is not the basis that Mr Byrne SC, for the applicant, has put the matter here.
26 There is no doubt that the medical condition is a circumstance. But for a condition to be taken into account as a special circumstance, it must be shown that there is something special about that circumstance. The condition that he suffers from is a medical condition which can be treated with varying degrees of success in the community. He has not however been thus far able to successfully deal with the condition.
27 There must be some relevance in the sentencing process and the need for longer term supervision than the period proposed by the Court that relates to that circumstance for it to be “special circumstances”, and I find no such special circumstance here. I can see nothing in His Honour's remarks which show that His Honour erred, as I do not see that there are any special circumstances in the case. In terms of s44(2) of the Crimes (Sentencing Procedure) Act 1999.
28 I would not uphold the appeal.
29 The orders that I would propose, therefore, are that the application be granted for leave to appeal, but that the appeal be dismissed.
30 SMART AJ: Having regard to the extent of the applicant's criminality, the very large sum taken, about $2.5million, and the period over which the offences took place, I am of the opinion the judge could not reasonably have imposed lesser sentences. I agree with the reasons of Dowd J and the orders which he has proposed.
31 DOWD J: The orders of the Court will be as I have proposed.
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