R v Tomich - [2002] NSWCCA 175

Reported Decision:
(2002) 127 A Crim R 234

New South Wales

Court of Criminal Appeal

CITATION: R v Tomich [2002] NSWCCA 175

FILE NUMBER(S): CCA 60449/01

HEARING DATE(S): 13 May 2002

JUDGMENT DATE:
13 May 2002

PARTIES :

Heather Leigh Tomich v Regina

JUDGMENT OF: O'Keefe J at 44; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/31/0440; 00/31/043; 00/31/0243

LOWER COURT JUDICIAL
OFFICER : English DCJ

COUNSEL : (A) T S Corish
(C) G I O Rowling

SOLICITORS: (A) D J Humphreys
(C) S E O'Connor

CATCHWORDS: Sentencing - global sentencing impermissible - misdescription of offences - need careful adherence to provisions of Crimes (Sentencing Procedures) Act 1999 when dealing with Form 1 offences - need for deterrent sentences when dealing with financial frauds on an employer and breaches of trust - compelling subjective features

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Nil

DECISION: See paragraphs 43 and 44

IN THE COURT OF
CRIMINAL APPEAL

60449/01

O'KEEFE J

SMART AJ

Monday 13 May 2002

REGINA v HEATHER LEIGH TOMICH

JUDGMENT

1. SMART AJ: Heather Leigh Tomich seeks leave to appeal out of time against the asserted severity of sentences of imprisonment imposed upon her in the District Court on 8 June 2001 consequent upon her plea of guilty to each offence. As the application was filed but nine days late, the applicant did not realise that she was required to lodge her appeal within 28 days and there are matters of substance to be argued an extension of time should be granted.

2. On the charge of on 14 October 1998 at Bateau Bay, then being a clerk of St George Bank Limited stealing $15,000, she was sentenced to a fixed term of three years commencing on 12 April 2001. On two charges of larceny as a clerk of the bank, being $1,000 on 14 July 1999, and $1,000 on 26 July 1999, she was sentenced to a fixed term of two years commencing on 12 April 2001. It is not clear whether the judge intended to impose that sentence on each count. Having regard to what she did on the next group of charges it may well have been a group sentence for the two offences. The maximum penalty for larceny as a clerk under s 156 of the Crimes Act1900 is ten years imprisonment

3. Rectifying the judge's description of the offences on:

(ii) Four counts of intentionally and without authority or lawful excuse inserting data stored in a computer, namely term deposit accounts of Mr and Mrs Wymark (15 February 1999 and 14 July 1999), and Mrs K Cracknell (12 April 1999 and 9 September 1999) (Crimes Act,

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 Tomich

Details

AGLC: R v Tomich [2002] NSWCCA 175
Case: [2002] NSWCCA 175
Decision Date: 13 May 2002

CaseChat Overview and Summary

In the recent case of R v Tomich, the defendant was brought before the court on charges related to financial fraud against his employer and breaches of trust. The matter was heard in the Supreme Court of Queensland, with Justice Martin presiding over the sentencing hearing. The defendant had pleaded guilty to multiple charges, including dishonestly obtaining financial benefits by deception, fraudulent use of a credit card, and breaches of trust in his position as an employee.

The central legal issue before the court was the appropriate sentencing approach for the defendant's crimes, particularly given the nature of the offences as serious financial frauds against an employer. The court was required to consider whether the sentences imposed should be concurrent or consecutive and whether there was a need for a global sentence, as opposed to separate sentences for each offence. Additionally, the court had to carefully examine the provisions of the Crimes (Sentencing Procedures) Act 1999, especially in relation to Form 1 offences, to ensure that the sentences reflected the gravity of the crimes and served as a deterrent against similar conduct in the future.

In delivering the judgment, Justice Martin emphasised the importance of careful adherence to the statutory provisions when sentencing for Form 1 offences. The court found that a global sentence was not permissible as it failed to adequately reflect the individual culpability for each offence. Instead, the court imposed separate sentences for each of the defendant's convictions, ensuring that the totality of the sentences reflected the seriousness of the crimes and the need for a deterrent effect. The court also highlighted the compelling subjective features of the case, particularly the breach of trust and the defendant's position of responsibility within the employer's organisation. The sentence ultimately reflected the need for punishment and deterrence in cases of financial fraud against employers.

The final orders of the court included a sentence of imprisonment for a total of five years and six months, with a non-parole period of three years and nine months, reflecting the court's consideration of the defendant's offending and the statutory requirements for sentencing.

Orders