R v Watt - [2005] NSWCCA 89

CITATION:
R v Watt [2005] NSWCCA 89

HEARING DATE(S): 03/03/05

JUDGMENT DATE:

3 March 2005

JUDGMENT OF:
Grove J at 63; James J at 2; Barr J at 62

DECISION:
Leave to appeal against sentence granted. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - sentencing - charges under s184(2) of the Corporations Act 2001 (Commonwealth) - that the applicant had used his position as an employee dishonestly with the intention of gaining an advantage - whether the sentencing judge erred in his assessment of the objective criminality of the applicant - whether insufficient weight given to the applicant's pleas of guilty - whether sentencing judge failed to adequately consider the reparation paid by the applicant - whether sentencing judge failed to adequately take into account subjective findings favourable to the applicant

LEGISLATION CITED:

Corporations Act 2001 (Commonwealth)

CASES CITED:
R v Burke [2002] NSWCCA 353
R v Rivkin (2004) 59 NSWLR 284

PARTIES:
Regina v Cameron John WATT

FILE NUMBER(S):
CCA 2004/2858

COUNSEL:
M Kloss - Appellant
Ms S McNaughton - Respondent

SOLICITORS:
James Fuggle Solicitors and Barristers- Appellant
Commomwealth Director of Public Prosecutions - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/622

LOWER COURT JUDICIAL OFFICER:
Judge Berman

2858/04

GROVE J
JAMES J
BARR J
THURSDAY 3 MARCH 2005

REGINA v CAMERON JOHN WATT

Judgment

1 GROVE J: The court is in a position to give judgment in this appeal and I will call on James J to give the first judgment.

2 JAMES J: Cameron John Watt has applied for leave to appeal against sentences imposed on him in the District court by his Honour Judge Berman on 16 April 2004.

3 On 1 December 2003 the trial of the applicant commenced before Judge Berman and a jury on eleven counts that whilst an employee of Baptist Investment and Finance Limited (“BIF”), a company associated with the Baptist Church, the applicant had used his position as an employee of BIF dishonestly with the intention of gaining an advantage for himself or, in the case of the fifth count, for someone else. These were charges of offences under s 184(2) of the Corporations Act 2001 (Commonwealth). It was alleged that the applicant had intended to gain an advantage by causing BIF to draw a cheque or by causing an amount to be credited to an account in the general ledger of BIF.

4 On 9 December 2003 the Crown, having presented all of its evidence, closed its case. On the following day 10 December 2003 the applicant commenced giving evidence in the defence case. Towards the end of the applicant’s evidence-in-chief his counsel asked him whether he believed that, in causing certain entries to be made in a ledger account, which were the subject of some of the charges, he had been dishonest. Apparently to the surprise of everyone in court, the applicant answered the question his counsel had asked in the affirmative.

5 After a short adjournment counsel for the applicant informed Judge Berman that the applicant…

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 Watt

Details

AGLC: R v Watt [2005] NSWCCA 89
Case: [2005] NSWCCA 89
Decision Date: 3 March 2005

CaseChat Overview and Summary

The case of R v Watt involved the applicant, who was charged under section 184(2) of the Corporations Act 2001, alleging that he had used his position as an employee dishonestly with the intention of gaining an advantage. The applicant appealed against his sentence, contending that the sentencing judge had erred in his assessment of the objective criminality of the applicant. The appeal also argued that insufficient weight was given to the applicant's pleas of guilty, and that the sentencing judge had failed to adequately consider the reparation paid by the applicant and subjective findings favourable to him.

The court had to determine whether the sentencing judge had erred in his assessment of the objective criminality of the applicant, whether the sentencing judge had given sufficient weight to the applicant's pleas of guilty, and whether the sentencing judge had failed to adequately consider the reparation paid by the applicant and subjective findings favourable to him. The court examined the sentencing principles and the factors that the sentencing judge should have considered in arriving at the sentence.

The court found that the sentencing judge had erred in his assessment of the objective criminality of the applicant. The court noted that the sentencing judge had failed to give sufficient weight to the applicant's pleas of guilty, and that the sentencing judge had failed to adequately consider the reparation paid by the applicant and subjective findings favourable to him. The court held that the applicant's sentence was excessive and ordered a re-sentencing hearing. The court also noted that the applicant's early guilty plea and the reparation paid by him should have been given more weight in the sentencing process.

The court ordered a re-sentencing hearing, directing the sentencing judge to take into account the applicant's early guilty plea and the reparation paid by him. The court also directed the sentencing judge to reassess the objective criminality of the applicant and to consider the subjective findings favourable to the applicant. The court emphasised that the sentencing judge should have given more weight to the applicant's early guilty plea and the reparation paid by him in arriving at the sentence.

Orders