R v Telford - [2005] SASC 349

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TELFORD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
13 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUDULENT CONVERSION BY PERSON ENTRUSTED WITH PROPERTY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant convicted after pleading guilty to 32 counts of fraudulently obtaining property, 20 counts of falsification of accounts and 11 counts of forgery - total amount misappropriated by appellant was more than $22 million in breach of trust - appellant misappropriated funds in order to feed his gambling disorder - appeal on ground that sentence manifestly excessive due to number of errors by sentencing Judge - discussion of relevant case law and general sentencing principles - consideration of impact of gambling disorder on need for sentence to promote general deterrence. Held by majority: no error made by sentencing Judge and sentence not manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(j); Criminal Law Consolidation Act 1935 (SA) s 189, s 235, s 269WA, referred to.
R v Nguyen [2005] SASC 329; Black v S Freedman & Co (1910) 12 CLR 105; R v Telford (2004) 89 SASR 352; R v Barrick (1985) 81 Cr App R 78; R v Martin (1994) A Crim R 252; R v Powell (2001) 81 SASR 9; R v Novak (1993) 69 A Crim R 145; Ryan v The Queen (2001) 206 CLR 267; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Dubois (2004) 88 SASR 304; Porter (1913) 9 Cr App R 213; Green (1915) 13 Cr App R 200; R v Chisholm (1985) 122 LSJS 230; R v Anderson [1981] VR 155; R v Engert (1995) 84 A Crim R 67; R v Prak (Unreported, Court of Criminal Appeal, SA S5781, 16 July 1996); R v Van Gelder (2003) 142 A Crim R 1; R v Davies (2004) 88 SASR 304; R v Hignett (2000) 210 LSJS 27, considered.

R v TELFORD
[2005] SASC 349
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I have had the advantage of considering the reasons of Gray J.
He sets out the background to the offending, and the nature of the offences. He has adequately outlined the sentencing Judge’s approach, and the issues raised on appeal.
That makes it unnecessary for me to repeat those matters. I will confine my reasons to the matters essential to my decision.
I agree with most of what Gray J has said. But I do not agree that the sentence is manifestly excessive, or that the sentencing Judge’s reasoning is flawed. I would dismiss the appeal.
The offences are…

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 Telford

Details

AGLC: R v Telford [2005] SASC 349
Case: [2005] SASC 349
Decision Date: 13 September 2005

CaseChat Overview and Summary

In the matter of R v Telford, the appellant, Dennis Craig Telford, was convicted of 32 counts of fraudulently obtaining property, 20 counts of falsification of accounts, and 11 counts of forgery, following his guilty plea. The total amount misappropriated by Telford was over $22 million, committed over a two and a half year period while employed by two companies. The appellant's defence of mental incompetence, based on a pathological gambling disorder, was rejected by the trial judge. The appeal centred on the severity of the sentence imposed, which was 14 years imprisonment with a non-parole period of nine years and six months.

The primary legal issues revolved around whether the sentence imposed was manifestly excessive, given the number of errors allegedly made by the sentencing judge. These errors included the characterization of the extent of restitution made by the appellant, the degree of reduction for the guilty pleas, and the weight given to general deterrence. Additionally, the court had to consider the impact of the appellant's diagnosed gambling disorder on the need for the sentence to have a deterrent value.

The court examined relevant case law and general sentencing principles, ultimately concluding that no error was made by the sentencing judge. The court found that the sentence was not manifestly excessive and that the judge had appropriately considered the factors of cooperation and guilty pleas, as well as the significant impact of the appellant's disorder on his conduct. The majority held that the sentence was appropriate in light of the severity and scale of the offending, the need for general deterrence, and the appellant's degree of culpability.

The appeal was dismissed, and the original sentence of 14 years imprisonment with a non-parole period of nine years and six months was upheld. The court's reasoning emphasized the importance of considering the totality of the circumstances, including the appellant's cooperation and guilty pleas, in determining the appropriate sentence.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence. Background On 19 September 2003 the appellant, Dennis Craig Telford, pleaded not guilty to 32 counts of fraudulently obtaining property contrary to section 189 of the Criminal Law Consolidation Act 1935 (SA), 20 counts of falsification of accounts pursuant to section 178 of the Act and 11 counts of forgery contrary to section 235 of the Act. The total amount misappropriated was more than $22 million. The appellant elected for a trial by judge alone. The issue at trial was mental competence. Pursuant to an order made under section 269WA of the Criminal Law Consolidation Act, medical specialists examined the appellant and reported to the Court. Subsequently, on 26 August 2004 the learned trial Judge determined that the defence of mental incompetence was not made out. The Judge concluded that the appellant suffered from a pathological gambling disorder and that the disorder constituted a pathological infirmity of the mind within the meaning of “mental illness” in section 269A(1) of the Act. However, he was not satisfied that the appellant was unable to control his tendency to gamble. Therefore, the defence of mental incompetence had not been made out. The Judge reasoned:[3][T]he distinction between control of the gambling and control of the offending behaviour is, for reasons which I will come to, critical in determining whether the statutory criteria to determine mental incompetence are made out.On the basis of the opinions expressed in the reports and the other factual material which is before me, I find that the accused suffered at the relevant time from a pathological gambling disorder answering to the classification of an “impulse control disorder”, within the diagnostic criteria which are contained in the Diagnostic and Statistical Manual of Mental Disorders.…In the result, on the whole of the evidence, even allowing for the fact that the accused describes himself as having a gambling “obsession”, I am unable to be satisfied on the balance of probabilities that the accused was “unable to control the conduct”, if the word “conduct” is taken to refer to his gambling habit.I turn to the accused’s actions in carrying out the offences the subject of the charges. His conduct in that respect involved a lengthy and calculated course of conduct over a period of time, including the giving of instructions to other members of staff; in arranging telephone transfers of funds; in forging records; and taking other steps to execute, in a clandestine fashion, quite intricate transactions.On no view of the evidence could it be suggested that the accused was “unable to control” that conduct. [Defence counsel] did not suggest otherwise. Subsequent to this ruling, the appellant pleaded guilty to all 63 offences for which he was subsequently sentenced. [3] R v Telford (2004) 89 SASR 352 at [91]-[105]. The circumstances of the appellant’s offending were set out in the sentencing remarks:Your offending conduct occurred over a two and a half year period. It involved the misappropriation of very large sums of money from the two companies by which you were employed. During this relatively short time you managed to misappropriate a staggering total of $22,447,500. This was the product of 32 separate misappropriations ranging from $20,000 to $3 m.…Over the period of time during which the offences were committed you suffered from a pathological gambling disorder which led you to gamble heavily on horse racing. What began as a hobby turned into an obsession. You began wagering on credit in large sums of money with two licensed bookmakers with whom you placed bets by telephone. You lost heavily. Your gambling snowballed as you endeavoured to chase your losses.In order to finance this activity you arranged electronic transfers of money from bank accounts operated by your employers into the accounts of the bookmakers. In order to conceal your conduct you created an elaborate system, involving the creation of false debts, forgery, and falsification of the company’s books of account. In the course of doing so other employees of the companies were unwittingly involved, in that you used your position of authority over them to cause them to take various steps which were part of the intricate web of deception which you created.Losses were paid out by you from the company’s accounts, but substantially all profits, that is, any credits paid out by the bookmakers, were paid into your own personal accounts or otherwise for your benefit. A relatively small amount was repaid by you to the bookmakers.In this way you personally benefited to the extent of approximately $6 m. You applied those moneys towards the acquisition of property, investments and race horses, home improvements and maintenance of a lifestyle which would otherwise have been beyond your means.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It may be that the learned sentencing Judge’s mischaracterization of the extent of the restitution made by the appellant and the relatively moderate reduction that he made on account of the appellant’s guilty pleas contributed to the imposition of an excessive penalty. It may be that the Judge gave too much weight to general deterrence in the circumstances. It is possible that the Judge did not give sufficient mitigatory effect to the appellant’s gambling disorder that was diagnosed as a mental disorder.Conclusion I would allow the appeal. The sentence of 14 years’ imprisonment with a non-parole period of nine years and six months was, in the circumstances, manifestly excessive. I would re-sentence the appellant. I would start with a head sentence of 13 years imprisonment, reduced to 10 years and six months on account of the appellant’s guilty pleas. I would fix a non-parole period of 7 years. I would back date the sentence to the date on which the appellant was first taken into custody.

Ratio Decidendi

Legal Principle Established

The circumstances of this case reflect a “causal link” between the appellant’s mental disorder and his gambling. However, there is no such a link between his mental disorder and misappropriation, as referred to in the authorities,[34] suggesting that the need for the sentence to have some deterrent value may be substantially reduced. [34] See also R v Van Gelder (2003) 142 A Crim R 1 at 6-7.Cooperation and Pleas The extent to which an accused cooperates with authorities to assist with their inquiries is a further factor indicating contrition and remorse that is relevant when sentencing. The Judge reached the following conclusion regarding the level of the appellant’s cooperation with police and his former employers:Your counsel submitted that after your arrest you cooperated fully with the authorities. I accept that you cooperated to a degree, but I am not satisfied that you cooperated as fully as you could, either with the police, or in the process of identifying your assets when your former employers were endeavouring to trace the money which you stole. Counsel for the appellant submitted that, although the Judge recognised that the appellant had cooperated “to a degree” with the authorities, the Judge did not have adequate regard to this cooperation when determining sentence. As already observed, the appellant pleaded guilty to the charges immediately following the Judge’s decision that the defence of mental incompetence had not been made out. Notwithstanding that this was not, strictly speaking, the “first available opportunity” to plead guilty, it was submitted that the appellant was entitled to receive the full extent of the reduction in sentence that is ordinarily made when an offender pleads guilty at an early stage. The Judge reduced the sentence that he would otherwise have imposed on the appellant from 16 years to 14 years on account of his guilty plea. This is a reduction of approximately 12.5 per cent. Counsel for the appellant submitted, in effect, that this was an insufficient reduction. It is apparent from the sentencing remarks, in which express references were made to both the pleas of guilty and the cooperation of the appellant with the authorities, that the Judge considered these matters. Whether the Judge had sufficient regard to these matters therefore goes essentially to whether or not the sentence imposed was, in all of the circumstances, manifestly excessive. This will be discussed later in these reasons.Relevant Recent Case Law In Cavanagh the Court acknowledged that the total amount of the defalcation will have some bearing on the penalty to be imposed and will assist in determining the seriousness of the offending in relation to other similar offending. Debelle J, with whom Doyle CJ and Wicks J agreed, observed:[35] [W]hile little is to be gained by comparing the nature of the offending with other cases, the amount which has been stolen by the offender will have some bearing on the penalty. While it is extremely difficult to make close comparisons between cases because the facts and circumstances of each case will differ, it is nevertheless necessary to place the offending in the overall scale of offending so that justice appears to be done to other persons who have been dealt with or will be dealt with in the future for offending of this kind. The amount taken in this case was significantly lower than in other cases which have been before this court in recent years. Another factor is that the length of this sentence reduces the scope for longer sentences when larger amounts are involved. This is not to say that the overall level of sentences for this kind of offending will not have to be increased in the future.[35] Cavanagh [1999] SASC 418 at [23].