Regina v Tripodina

[2001] NSWCCA 136

CITATION:	Regina v Tripodina [2001] NSWCCA 136 revised - 17/04/2001
FILE NUMBER(S):	CCA 60716/00
HEARING DATE(S):	9 April 2001
JUDGMENT DATE:	9 April 2001
PARTIES :	Regina v Joseph Anthony Tripodina
JUDGMENT OF:	Dowd J at 31; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0607
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	(A) P Byrne SC (C) P G Berman SC
SOLICITORS:	(A) Greg Walsh & Co (R) S E O'Connor
CATCHWORDS:	Sentencing - extensive defalcations by senior employee over a long period and in a large amount - strong subjective features and pathological gambling - payment of compensation - cumulative sentences to reflect total criminality
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	The Queen v Thompson & Houlten 115 A Crim R 104 R v Wilkins (1988) 38 A Crim R 445 R v Pantano (1990) 49A Crim R 338 R v Hawkins (1989) 45 A Crim R 430 R v O'Neill (unrep CCA 24 July 1996) R v McKechnie (unrep CCA 1 October 1987)
DECISION:	Leave to appeal granted - appeal dismissed

60716/00

DOWD J

SMART AJ

Monday, 9 April 2001

REGINA v JOSEPH ANTHONY TRIPODINA

JUDGMENT

1   SMART AJ : Joseph Anthony Tripodina seeks leave to appeal against the severity of sentences imposed upon him in respect of multiple offences of dishonestly obtaining for himself a financial advantage by deception.

2 On counts 1-9 he was sentenced to imprisonment for a fixed term of two years and six months. On count 10, taking into account 42 further offences under the same section, S 178BA (1) of the Crimes Act 1900, he was sentenced to imprisonment for four years cumulative upon the sentences imposed on counts 1-9 with a non-parole period of two years to commence on 27 April 2003 and to expire on 26 April 2005. Thus the effective sentence was imprisonment for six and a half years with a non-parole period of four and a half years. Under S 178BA the maximum penalty is five years imprisonment.

3   The applicant pleaded guilty to all offences. The defrauding occurred while the applicant was the financial controller of his employer, a patisserie company with a substantial business which built up over the years. The ten counts covered the period from 12 January 1995 to 17 September 1996 and involved a total of $96,296, there being ten separate cheques.

4   The 42 further offences took place between 22 April 1997 and 26 June 1998 and involved $304,093. Thus the amount defrauded was about $400,000. The applicant was the financial controller of the company from 2 July 1990 to 31 August 1998. For long periods the company's general manager was overseas and the applicant acted in this position in his absence. The applicant's position was a senior one. Amongst other things, the applicant was responsible for maintaining the company's banking records, administration of its payroll, the supervision of salary and benefit packages for senior personnel and administrative duties. He supervised the staff who attended to the accounts, including the accounts payable. The invoice, supporting documents and the cheque were placed before the applicant for checking and signature. The only time there was a second signatory was apparently between November 1996 and June 1997.

5   Often towards the end of the month the applicant instructed staff members to leave five or six cheques for him to write. This instruction was complied with. The applicant took control over certain accounts such as insurance and stationery creditors. There were occasions when staff were requested to write out the cheques and cheque butts but to leave the amount free. Cash cheques were rare. The company's cheque book was kept in A filing cabinet in the applicant's room. The applicant and the assistant accountant had keys.

6   The applicant did not give evidence. According to the statement he made to Doctor J Parmegiani, it appears that the applicant left the company in August 1998 after being approached by three persons to set up a separate company. It was to compete with the company he had defrauded in certain areas. The applicant told Doctor Jolly that he was appointed as the general manager of the new company.

7   Staff of the defrauded company discovered that the applicant had been drawing company cheques and making some payable to himself, some to cash, and some to creditors for his own benefit. In broad terms, the cheque butts completed by the applicant showed payment to legitimate creditors for legitimate debts, however, the corresponding cheques were not made out to such creditors. They were made payable for the benefit of the applicant.

8   One serious instance occurred about 21 July 1997. The applicant recorded a payment on the cheque butt as payable to FAI, Workers' Compensation. The applicant made the corresponding cheque payable to the Commonwealth Bank for $65,004.94 and obtained the benefits from the cheque being so diverted.

9   An audit of the company's accounts was undertaken and this revealed what had happened. The results were reported to the Commercial Crime Agency of the New South Wales Police Service which conducted an extensive six months investigation.

10   On 22 December 1999 the applicant was arrested at his home and subsequently charged. As was his right, he declined, on the advice of his solicitor, to be interviewed.

11  The applicant told Doctor Parmegiani that he felt increasingly guilty and concerned about misappropriating funds; that he approached his father's solicitor, Mr M Pappallo, and explained the situation. Mr Pappallo suggested meeting with representatives of the defrauded company to arrange for restitution. Initially the applicant was confident that the equity in the family home would be sufficient to cover the monies he owed to the defrauded company. Subsequently he discovered that he did not have sufficient money to pay that company. The applicant attached importance to consulting his solicitor but that was, in part, a damage limitation exercise. It is one thing to consult one's solicitor and obtain advice. It is quite another to report the matter to the police and assist in an investigation.

12   The applicant told Doctor Jolly that every time he wrote a fresh cheque, he was aware that what he was doing was wrong. In his own mind he was always going to repay the money with "a big win".

13   The judge summarised the applicant's subjective features. He was born on 18 August 1962 and had no prior criminal history. He entered his pleas of guilty and had never denied his guilt. The judge was satisfied that the applicant's pleas of guilty and his acknowledgment of guilt in respect of the 42 matters taken into account, were genuine signs of his remorse and contrition. The judge also accepted that the pleas of guilty were entered at the earliest opportunity.

14   The judge found that the applicant had a supportive family and circle of friends. He had received a good education. Responsibilities were prematurely thrust upon him during his teen years and earlier adult life in relation to the family business as a result of his father's propensity to gamble heavily, and subsequently in 1983, when his father was imprisoned for four years for conspiring to cultivate a prohibited plant.

15   The applicant gained his Higher School Certificate but may well have done better if he had not had the family pressures. He completed three years of an accountancy certificate course. He stated that he was subsequently admitted into the Australian Institute of Management due to his employment experience. Since leaving school the applicant "has held regular employment overseeing financial responsibility as an accountant and office manager for different businesses". From August 1998 until sentencing on 27 October 1998, he worked for a rival company. The judge took into account the applicant's pathological gambling problem. That was diagnosed in the reports of Doctor Parmegiani and Doctor Jolly. Doctor Jolly also found that the applicant suffered a depressive illness which antedated the pathological gambling. The applicant told Doctor Jolly that he had weaned himself off gambling, last attending a casino on New Years Eve 1999. As from September 2000 he attended the Gambling Treatment Programme at St Vincent's Hospital for treatment.

16   The judge noted that the applicant's solicitors and those for the defrauded company had entered into negotiations for the payment of compensation. It was the applicant's intention to pay compensation. As at the date of the sentence hearing, no conclusion had been reached. On the hearing of this appeal the defrauded company confirmed the receipt of $230,000 in full and final settlement of all its claims against the applicant. This is an important matter to take into consideration. The amount paid by way of compensation is substantial but it is less than half the amount taken when interest is included.

17  The judge took into account the applicant's intention to pay compensation. It was the seriousness of the offences which led the judge to impose the sentences, the subject of this application, despite the strong personal features of the applicant. Each offence was committed to satisfy the applicant's need to gamble and to live a lifestyle which he could not afford.

18  The offences involved breaches of trust over a number of years. The judge attached considerable weight to specific and general deterrence. The applicant submitted that the error in the judge's sentencing derived from his failure to give sufficient weight to the following features of the case:

The Applicant's Disclosure of Criminality
19  The applicant relied upon his consulting his family's solicitor before he was aware that the police were involved. It was submitted that this disclosed a recognition by the applicant of his own wrongdoing. Reliance was also placed on the applicant stopping or virtually stopping gambling and seeking treatment. The applicant knew, when he signed each cheque, that he was committing an offence and that he was behaving criminally. After he left the defrauded company his supply of funds to gamble abated. He did not go to the police. He was obviously hoping to reach a commercial settlement.

20   In my opinion, the applicant's disclosure of criminality to his solicitors deserves little weight and it is certainly not a reason, either alone or in conjunction, with other reasons to intervene.

Immediate Plea of Guilty
21   The applicant emphasised that he had never contested the charges brought against him and that he had pleaded guilty at the earliest opportunity. Complaint was made that the judge had not referred to the decision of this Court in Thompson v Houlten , 115 A Crim R 104. It is true that the judge did not refer to that decision, in reaching the sentence that he imposed, he took into account the early pleas of guilty. It is not possible to say that the judge failed to give adequate weight to the pleas of guilty and to make the appropriate discount.

Undue Emphasis on Adverse Features
22  Counsel for the applicant drew attention to some of the remarks made by the judge. In particular, his description of the applicant's conduct as "callous and contemptuous", "gross criminal behaviour", and the need for a sentence to "appease the community's abhorrence to this type of criminal behaviour". The descriptions of which complaint is made are strong. The applicant's conduct had little regard for the welfare of the company which employed him. It was criminal behaviour of a very serious kind. The description "gross criminal behaviour", while strong, is not entirely inappropriate particularly in the context in which it was made. Again, the clause "appease the community's abhorrence to this type of criminal behaviour" is a strong one, but the community does have a distinct distaste, if not abhorrence, of this type of criminal conduct.

23   This complaint would not warrant this Court intervening

Gambling
24  The applicant submitted that this was not a case where there was some general assertion of gambling. Records were produced substantiating that the applicant was a compulsive gambler and had spent large amounts of money. The records disclose that a total of some $285,000 was spent at the Sydney Casino alone. The applicant also visited casinos in the Australian Capital Territory and at Surfers Paradise. The materials available to this Court substantiate the applicant's claim that he gambled a great deal and lost large sums.

25  The judge expressly took into account the applicant's pathological gambling problem. He adverted to the reports of Doctor Parmegiani and Doctor Jolly and that from St Vincent's Hospital that the applicant had, since September 2000, been undergoing treatment at that centre to help alleviate the problem. It cannot be said that the judge failed to give weight to this aspect of the applicant's case.

Cumulative and Concurrent Sentences
26   Complaint was made the judge had accumulated the sentences in this case. Counsel submitted that all the offences were of the same type against the same victim and committed for the same purpose and by the same method. It was submitted that although the illegal conduct continued for some years, it was essentially the one offence. Cumulative sentences are appropriate where the imposition of concurrent sentences would not adequately reflect the criminality involved. This was decided in R V Wilkins (1988), 38 A Crim R 445 per Lee CJ at CL at 450 and Carruthers J at 451. In R V Pantano, (1990) 49 A Crim R 338, R V Hawkins (1989) 45 A Crim R 430, R V O'Neill (unrep. CCA 24 July 1996) and R V McKechnie , (unrep. CCA 1 October 1987) cumulative sentences were imposed. This Court and courts of first instance commonly impose cumulative sentences when there are many offences against S 178BA of the Crimes Act and where to impose the maximum penalty for each offence and make all the sentences concurrent would represent inadequate punishment. The offences occurred over a long period and cannot be treated as one episode of criminality. The challenge to the judge's exercise of discretion in making the sentences cumulative must be rejected.

The Applicant's Strong Subjective Case is not Reflected in the Sentence
27   It was emphasised that the applicant had a strong subjective case. That was not contested and the judge so found. He had no prior convictions. He had taken steps to overcome or deal with his gambling addiction. He had a long record of gainful employment and had worked long hours and had coped with difficult family problems and situations. Even after his release on bail he had continued to work. He had struggled hard to make a life for himself. All this is rightly said but one has to come back, to the gravity of the present offences. They were, as has been emphasised, committed over a long period of time. They involved significant breaches of trust and the amounts of money involved were substantial. I do not think this ground is made out.

Payment of Compensation
28 I regard the payment of compensation as an important factor. The judge proceeded on the basis that that compensation would probably be paid. It was hoped at the time of sentencing that it would be somewhat greater than it has turned out to be, but that is not a matter for which the applicant can be criticised. What does appear is that for some considerable time it was his intention to pay such compensation as he could, albeit that the payment of compensation would still leave a substantial amount unpaid.

29   The sentence imposed is at the top of the permissible range. No error has been demonstrated which would entitle this Court to intervene.

30   Accordingly, I would grant leave to appeal but dismiss the appeal.

31   DOWD J : I agree and the orders of the Court will therefore be as proposed by Smart AJ.
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