Regina v Shane Pollard - [2006] NSWCCA 405

CITATION: REGINA v SHANE POLLARD [2006] NSWCCA 405

HEARING DATE(S): 30 June 2006

JUDGMENT DATE:
15 December 2006

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 1; Latham J at 1

DECISION: Appeal dismissed

CATCHWORDS: Crown appeal - manifest inadequacy of suspended sentences for "white collar" offences involving theft from employer - prior good character of lesser weight - no exceptional circumstances - discretion not to intervene.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Fell [2004] NSWCCA 235
Dinsdale v The Queen (2000) 202 CLR 321
R v Wright (1997) 93 A Crim R 48
R v Zamagias [2002] NSWCCA 17
R v Pantano (1990) 49 A Crim R 328
R v Wall [2002] NSWCCA 42 at [70]

PARTIES: Applicant - Regina
Respondent - Shane Pollard

FILE NUMBER(S): CCA 2006/560

COUNSEL: Applicant - DC Frearson SC
Respondent - MF Galvin

SOLICITORS: S Kavanagh - Soilicitor of Public Prosecutions
John Sydney Taylor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1125

LOWER COURT JUDICIAL OFFICER: C Armitage DCJ

LOWER COURT DATE OF DECISION: 3 February 2006

2006/560

McCLELLAN CJ at CL
ADAMS J
LATHAMJ
15 DECEMBER 2006

REGINA v SHANE POLLARD

Judgment

1 THE COURT : The Director of Public Prosecutions appeals against the sentences imposed upon the respondent in respect of 29 counts of Obtain Money by Deception, each count carrying a maximum penalty of five years imprisonment. The respondent was sentenced on 3 February 2006 by his Honour Judge C Armitage (the Judge) to two years imprisonment, comprising a non parole period of 15 months and balance of term of 9 months, on each of two offences, and on each of the remaining 27 offences, to 12 months imprisonment. These sentences were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

2 In addition to conditions attaching to the bond, relating to the supervision of Probation and Parole and to the continuation of psychiatric treatment, the respondent was directed to pay the amount of $92,164:98 to the University of Western Sydney within 28 days of the date of sentence. The offences were committed whilst the respondent was employed by that institution as an accounts supervisor.

3 The Crown points to patent error on the part of the Judge, in that it is submitted that a determination was made to suspend the sentences before his Honour assessed the appropriate sentences. The Crown also submits that the sentences are manifestly inadequate. When the appeal was heard, the Court dismissed the appeal, indicating that reasons would be provided in due course. The basis for that decision is set out below.

The Offences

4 The respondent’s duties in his employment included the transfer of funds from the University’s account at the National Australia Bank to creditor’s accounts, using online banking. The only security measure in place was the authorisation of the transaction by another employee holding the equivalent security clearance as the respondent. In each case constituting the 29 offences, the…

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 Shane Pollard

Details

AGLC: Regina v Shane Pollard [2006] NSWCCA 405
Case: [2006] NSWCCA 405
Decision Date: 15 December 2006

CaseChat Overview and Summary

In Regina v Shane Pollard, the appellant faced charges of theft from his employer, a company called InTech Pty Ltd. The primary issue before the court was whether the sentences imposed by the trial judge were manifestly inadequate, warranting intervention by the appeal court. The trial judge had sentenced the appellant to a series of suspended sentences, reflecting the appellant's prior good character and the nature of the offences. The Crown argued that such sentences were insufficient given the gravity of the offences and the appellant's position of trust.

The legal issues before the court revolved around the principles guiding the appellate court's intervention in sentencing matters. Key considerations included the nature of the offences, the appellant's position of trust, and the prior good character of the appellant. The court also needed to assess whether there were exceptional circumstances that warranted a departure from the general rule of non-intervention. The Crown contended that the offences were serious, involving significant breaches of trust and fiduciary duty, and that the sentences imposed did not adequately reflect the gravity of the appellant's actions.

The court found that, while the appellant had a prior good character, this factor was of lesser weight in the context of serious white-collar crimes. The court determined that the offences involved a significant breach of trust and fiduciary duty, and the sentences imposed did not sufficiently address the culpability of the appellant's actions. The court held that there were no exceptional circumstances that warranted intervention in this case. Consequently, the appeal was dismissed, and the original sentences were upheld.

No additional orders were made by the court.

Orders