Regina v Higgins - [2006] NSWCCA 326

CITATION: Regina v Higgins [2006] NSWCCA 326

HEARING DATE(S): 10 October 2006

JUDGMENT OF: Tobias JA at 35; Grove J at 1; Bell J at 36

EX TEMPORE JUDGMENT DATE: 10/10/2006

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - FRAUDULENTLY OMIT TO ACCOUNT - SENTENCE FOLLOWING CONVICTION AT TRIAL - CROWN APPEAL - BANK MANAGER TRUSTED BY ELDERLY CUSTOMER TO INVEST PROCEEDS OF CHEQUE - FACTS FOUND BY SENTENCING JUDGE APPROPRIATELY IDENTIFIED CULPABILITY - NO ERROR IN DECLINING TO INCREASE SENTENCE IN CIRCUMSTANCES BY REASON OF CROWN REFERENCE TO s 21A(2)(k) OF CRIMES (SENTENCING PROCEDURE) ACT 1999 - IMPOSITION WELL WITHIN SOUND DISCRETIONARY RANGE

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Elyard v Regina [2006] NSWCCA 43
R v Tadrosse [2005] NSWCCA 145

PARTIES: Regina v Graham Patrick Higgins

FILE NUMBER(S): CCA 2006/1257

COUNSEL: V. Lydiard (Crown/Appellant)
C.B. Craigie SC (Respondent)

SOLICITORS: S. Kavanagh (DPP)
S.E. O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/51/0051

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 26 April 2006

2006/1257

TOBIAS JA
GROVE J
BELL J
10 October 2006

REGINA v GRAHAM PATRICK HIGGINS

Judgment

1 GROVE J: This is an Crown appeal asserting the manifest inadequacy of sentence imposed by Black DCJ in the District Court at Lismore.

2 The respondent was tried upon indictment containing a single count of fraudulently omitting to account contrary to s 178A of the Crimes Act 1900. The offence occurred in October 2002 and the trial took place in February and March 2006. As recorded in a pre sentence report by a Ms Perrie dated 13 April 2006, the respondent does not accept the finding of guilt by the jury and “repeatedly expressed his innocence regarding the offence.”

3 In October 2002, the respondent was a manager employed by the Commonwealth Bank of Australia. He had been an employee of the bank for most of his working life which was a period of about twenty seven years. A number of elderly customers of the bank resided in a complex including a nursing home and the respondent used visit them to attend to any of their banking needs. One of these, a Mrs Loder, came into possession of a cheque from the National Australia Bank for a sum of a little over $73,000. This was apparently a return of some capital following alteration in her living circumstances within the complex. The cheque was given to the respondent for the purpose of investment of the proceeds. The respondent did not do so and he did not account for the money. Mrs Loder died and the matter apparently came to light when the executor of her will discovered a receipt for the funds.

4 The respondent was charged in September 2003. Upon being charged he was dismissed from his employment by the bank. Thereafter, up to the time of trial, he obtained some employment as a courier and as a debt collector. Enquiry by Ms…

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 Regina v Higgins

Details

AGLC: Regina v Higgins [2006] NSWCCA 326
Case: [2006] NSWCCA 326
Decision Date: 10/10/2006

CaseChat Overview and Summary

The case of Regina v Higgins involved the defendant, Higgins, who was convicted of fraudulently omitting to account for money entrusted to him. The case was heard in the court of appeal. Higgins was a bank manager who had been trusted by an elderly customer to invest the proceeds of a cheque. However, Higgins instead misappropriated the funds, leading to his conviction. The appeal was brought by the Crown, seeking a higher sentence for the defendant.

The legal issues before the court were whether the sentencing judge appropriately identified the culpability of Higgins and whether the sentence imposed was within the sound discretionary range. Additionally, the court considered whether the Crown's reference to section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 warranted an increased sentence.

The court found that the sentencing judge had appropriately identified the culpability of Higgins, given the facts found in the case. The court held that there was no error in the judge's decision not to increase the sentence, particularly in light of the Crown's reference to section 21A(2)(k) of the Sentencing Act. The court found that the sentence imposed was well within the sound discretionary range and was therefore appropriate. The appeal was dismissed, and the original sentence was upheld.

Orders