NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v Woodman [2001] NSWCCA 310 revised - 14/09/2001
FILE NUMBER(S):
60220/01
HEARING DATE(S): 15 August 2001
JUDGMENT DATE: 15/08/2001
PARTIES:
Regina
James Woodman
JUDGMENT OF: Wood CJ at CL Sperling J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 00/11/0870
LOWER COURT JUDICIAL OFFICER: Nield DCJ
COUNSEL:
B W Cross (A)
W G Dawe QC (C)
SOLICITORS:
Direct Access
S E O'Connor
CATCHWORDS:
CRIMINAL LAW - appeals - appeal against sentence - offence of dishonesty - fraudulent misappropriation of rental bond monies and purchaser's deposit - whether sentence outside range - reference to statistics of limited value - breach of trust - general deterrence - whether insufficient weight given to the offer of reparations - no error found
LEGISLATION CITED:
Crimes Act 1900 s 178A
Property Stock & Businss Act 1941 ss 88(a)(i) 88(b)(i)
DECISION:
Leave to appeal granted. Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
No 60220/01
WOOD JC AT CL
SPERLING J
WEDNESDAY 15 AUGUST 2001
REGINA V JAMES WOODMAN
JUDGMENT
WOOD CJ AT CL: The applicant seeks leave to appeal against the sentences imposed upon him by Nield DCJ in the District Court on 19 January 2001, following his pleas of guilty to five offences of dishonesty. Four of those offences involved counts of fraudulently omitting to account for a deposit, or for rent, received by him from a prospective purchaser and tenants respectively in his capacity as a real estate agent. The fifth related to a count of fraudulently converting property to his own use, namely monies received by way of rental bond.
In relation to the count relating to the fraudulent omission to account for the deposit, a further eighteen matters were taken into account on a form one, including ten offences of fraudulently converting rent or rental bond monies to his own use; four offences of fraudulently omitting to account for rental bond money, and four counts of fraudulently misappropriating rental bond monies.
The various offences in the indictment were charged under s 88(a)(i) and s 88(b)(i) of the Property Stock & Business Act 1941,each of which provides for maximum sentences of imprisonment for ten years.
Fourteen of the matters in the form 1, similarly came within these provisions, while the four offences of fraudulent misappropriation came within s178A of the Crimes Act 1900 and as such were offences which potentially attracted maximum penalties of imprisonment for seven years.
In relation to the offences involving the omission to account for the deposit in the amount of $18,625, in respect of which the form 1 matters were taken into account, the applicant was sentenced to imprisonment for three years and nine months with a non parole period of one year and three months, a period representing approximately thirty three percent of the head sentence. For each of the remaining counts on the indictment the applicant was sentenced to fixed terms of one year and three months to be served concurrently with the sentence…
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- AGLC
- R v Woodman [2001] NSWCCA 310
- Case
- [2001] NSWCCA 310
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the sentence imposed was erroneous in its severity and whether the offer of reparations was inadequately considered by the trial judge. The appellant argued that the sentence was excessive and that his offer to make reparations should have been given greater weight in determining the sentence.
The court examined the arguments and found no error in the sentence imposed. The court held that the offer of reparations, while not to be disregarded, did not constitute a sufficient mitigating factor to warrant a reduction in sentence. The court emphasised that an offender cannot mitigate the severity of their punishment by making a belated offer of reparation, particularly when no previous attempts were made. Additionally, the court underscored that the offer of reparations does not equate to the return of stolen funds, and in cases where the loss is irretrievable, the offer of reparation is less significant. The court concluded that the trial judge did not err in considering the reparations offer and that no non-custodial sentence would have been appropriate given the nature of the offences and the appellant's history.
Ultimately, the appeal was dismissed, and the original sentence was upheld. The court of appeal found that no error had been made in the trial judge's sentencing, and thus, the appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: WOOD CJ, WOOD CJ
No error has been shown in this respect.INSUFFICIENT WEIGHT GIVEN TO THE OFFER OF REPARATION. The offer by the applicant to make reparation was of limited value to him, particularly in the absence of any earlier attempt to do so. It is not the case that an offender found guilty of fraud offences can purchase mitigation by way of a voluntary repayment. While the degree of sacrifice involved can be taken into account it cannot be overlooked that an order for compensation, or reparation does no more than require the return of illgotten gains to which the offender had no entitlement. Moreover, as Hunt CJ at CL pointed out in Phelan (1993) 66 A Crim R 446:"It is more of a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation where the loss has been made good". In the light of these considerations I reject as unfounded the argument that there would be some utility in reducing the applicant's sentence, or to deal with him on a non custodial basis, so that could continue to work and thereby fund the repayments ordered. He is of course perfectly able to resume those payments once released upon parole. While it may be accepted that the applicant had limited means before he acquired the second job, and while it may also be accepted he was suffering from a degree of depression, it remains the fact that he had made no real attempt, before appearing for sentence, to offer anything by way of reparation. The explanation offered to the effect that he was waiting to be approached by the Department, and that he did not realise that he could make payments directly to the victims himself is unconvincing. I am unpersuaded that his Honour relied upon this matter as something operating in aggravation of sentence as distinct from a matter that might otherwise have demonstrated a degree of contrition. His Honour's observation "it was unfortunate there had been no reparations" does not carry with it the inference that it was regarded as a matter increasing the sentence. No error has been shown in that regard and accordingly this ground has not been made out. I finally observe that although a submission was originally made that a non custodial sentence would have been open in this case, that ground has not been pursued having regard to the period already served. While it has not been dealt with I would make it perfectly plain that I would not have considered this case to have been exceptional, and as such one that might have attracted a non custodial option. For those various reasons therefore I am unpersuaded that any error occurred, and although I would grant leave to appeal I would dismiss the appeal. SPERLING J: I agree. AT CL: The order of the court therefore will be as I proposed. **********