R v Szeto

[1999] NSWCCA 296

CITATION:	R v Szeto [1999] NSWCCA 296
FILE NUMBER(S):	CCA 60365/98
HEARING DATE(S):	15 September 1999
JUDGMENT DATE:	15 September 1999
PARTIES :	Lance William Szeto Regina (NSW)
JUDGMENT OF:	Wood CJ at CL; Simpson J at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/1023
LOWER COURT JUDICIAL OFFICER:	Downs DCJ

COUNSEL:	J.C. Nicholson SC for Applicant R.D. Ellis for Crown
SOLICITORS:	T.A. Muprhy for Applicant S.E. O'Connor for Crown
CATCHWORDS:	CRIMINAL LAW - sentencing - appeal against sentence for dishonestly obtaining goods by deception - whether manifestly excessive - whether special circumstances exist
DECISION:	Sentence quashed, and in lieu thereof applicant sentenced to a minimum term of penal servitude for 2 years 3 months, to commence from 18 June 1998, and expire on 17 September 2000; and an additional term of 9 months to date from the expiration of the minimum term. As a consequence of that order, applicant to be released on parole at the end of the minimum term.

IN THE COURT OF
CRIMINAL APPEAL

60365/98

WOOD CJ AT CL
SIMPSON J

WEDNESDAY 15 SEPTEMBER 1999

REGINA v LANCE WILLIAM SZETO

JUDGMENT

1 WOOD CJ AT CL: The applicant pleaded guilty a charge that between 10 February 1996 and 12 August 1996 he dishonestly obtained by deception a quantity of Digital brand laptops, monitors, keyboards and accessories, with a manufacturer’s value of $318,910.73. 2 The offence charged related to thirty-three instances of fraudulent orders placed by him, over a six months period, through the computer system of his employer, Digital Engineering Corporation. In committing the offence he took advantage of his position as an Accounts Manager with that company. His duties involved the receiving of orders from customers and placing those orders onto the computer. False invoices were prepared that were directed to the primary customers. 3 False credit notes were issued when those customers complained that they had not purchased the goods. 4 The applicant sold all of the equipment obtained by means of his deception. Upon his admission, the funds received, which approximated 70 per cent of the retail value of the equipment of $762,175, was spent on living the high life. This apparently included paying off his credit card and also paying off a Lotus motor-vehicle which he had acquired. 5 One reason offered for his criminality was that he was dissatisfied, or disgruntled with his employer; otherwise the applicant sought to place the blame upon the person who acquired the equipment from him. The case was not one in which the applicant had any pressing financial needs, or similar reason, for offending. 6 The applicant had not given any retribution by the time he appeared for sentence, even though he had expressed an intention to do so and had obtained fresh employment in a highly paid position. 7 He did, however, plead guilty from the outset and he had no prior convictions. His employment prior to the offence was continuous and he was well versed in computer skills, including computer programming. He also had a certificate in management skills. He did not drink alcohol, although he had previously abused drugs recreationally. He said that he given up that practice in 1997. He was supported by his friends and family and he was of good general character with favourable rehabilitation prospects. 8 The offence which was prosecuted was a single charge under s 178BA of the Crimes Act which carries a maximum penalty of penal servitude for 5 years. 9 The applicant was sentenced to a minimum term of penal servitude for 3 years and to an additional term of 1 year. 10 Two grounds of appeal were addressed.

Ground (1): sentence is manifestly excessive.

11 It was submitted that, as the sentence imposed represented 80 per cent of the maximum available, it must be assumed, in view of the favourable subjective circumstances, including the plea of guilty, that his Honour had placed the case in the worst category, and had commenced the sentence at, or near, the maximum. 12 It was further submitted that, by comparison with the twenty-five or so cases contained in the schedule which is attached to this judgment, involving offences of fraud by employees or by persons in trust which have been reviewed by the Court of Criminal Appeal since 1991, involving amounts in excess of $200,000, the sentence was manifestly excessive. 13 The submission in that regard has, in my view, been made good, by comparison with those decisions, taking into account, the circumstance that, for some of the appellants, the offence charged was one which carried a higher maximum penalty, and that additionally, in all of those cases, the Crown had charged multiple offences rather than a single offence. 14 The case is one, however, which fell into a very serious category of wrongdoing. The dishonest conduct continued over a significant period and involved a very serious breach of trust. It was calculated and premeditated. A significant amount of money was obtained and thrown away on the personal gratification of the applicant. Moreover, his remorse is not evident in so far as he sought to blame the person to whom he sold the goods, or his employer, and also in so far as he has not attempted to give retribution. 15 The need for general and specific deterrence in offences in this type has been recognised by this court on more than one occasion, see, for example, McKechnie (Court of Criminal Appeal New South Wales, 1 October 1987, unreported) Glenister (1980) 2 NSWLR 597, Newey (Court of Criminal Appeal New South Wales 23 August 1999, unreported), and Pantano (Court of Criminal Appeal New South Wales 11 September 1990, unreported. 16 In that last mentioned case I observed:

"The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences."

17   I would intervene upon the basis that, by comparison with the cases cited, the sentence appears to have been well above that which has normally been imposed. That circumstance is also demonstrated by reference to the Sentencing Statistics, even taking into account that their value is limited to providing some general guidance, because of the enormous variations in objective and subjective circumstances that arise. It follows that it will be necessary to resentence the applicant.

Ground 2: Special Circumstances

18 Before doing so, I wish to refer to the second ground of the appeal, concerning his Honour's finding that there were no special circumstances established. These were said to relate to the plea of guilty, the fact that the applicant was a first offender and otherwise of good character, and the fact that he has demonstrated progress towards rehabilitation in so far as he has given up recreational drug abuse, and has obtained further employment. 19 Two matters should not be overlooked in relation to this aspect of the appeal. First, it is the presence of subjective circumstances of this very kind that facilitates or provides the occasion for serious white-collared crime. Secondly, subjective circumstances of this kind have not normally been regarded as constituting special circumstances for the reasons identified by Justice Hunt CJ at CL in Phelan 66 A Crim R 446, where his Honour said at page 449:

"'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance within the meaning of s 5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration."

20   The present case is one in which his Honour had express regard to each of the circumstances identified, I am not satisfied, even taking into account the further material provided today, concerning the progress of the applicant within the prison system, that special circumstance have been established. 21   I would propose that the sentence be quashed and in lieu thereof the applicant be sentenced to a minimum term of penal servitude for 2 years and 3 months to commence from 18 June 1998 and to expire on 17 September 2000. I would also propose that there be an additional term of 9 months to date from the expiration of the minimum term. It would be a consequence of that order that the applicant be released on parole at the end of the minimum term. 22   SIMPSON: I agree.
23   WOOD CJ AT CL: The orders of the Court will be as I proposed.

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