Regina v Wilson - [2005] NSWCCA 414

CITATION:
Regina v Wilson [2005] NSWCCA 414

HEARING DATE(S): 30/11/05

JUDGMENT DATE:

30 November 2005

JUDGMENT OF:
Studdert J at 21; Whealy J at 1; Howie J at 22

DECISION:
Appeal be allowed and the sentence imposed in the District Court quashed. Respondent sentenced to imprisonment for 2 years with a non-parole period of 12 months. Sentence to be served by way of Periodic Detention and to commence on Friday 9 December 2005. Respondent to report to Officer-in-Charge of Parramatta Periodic Detention Centre by 4pm on that day. Non-parole period to expire on 8 December 2006 when respondent is to be released to parole.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Zamagias [2002] NSWCCA 17 at 22 per Howie J, Hogdson JA and Levine J concurring
R v Pantano (1990) 49 A Crim R 328 at 330
R v Falzon & Pullen (unreported NSWCCA 20 February 1992 per Loveday J

PARTIES:
Regina v Michael John Wilson

FILE NUMBER(S):
CCA 2005/1442

COUNSEL:
Mr J. Bennett SC - Crown
Mr C. Craigie SC - Respondent

SOLICITORS:
S. Kavanagh - Public Prosecutions
Steve O'Connor - Legal Aid Commission of NSW

LOWER COURT JURISDICTION:
District Court

LOWER COURT JUDICIAL OFFICER:
Solomon DCJ

2005/1442

STUDDERT J
WHEALY J
HOWIE J
WEDNESDAY 30 November 2005

REGINA v Michael John WILSON

Judgment

1 WHEALY J: This is a Crown appeal against the sentence passed by Judge Solomon against the respondent at the Sydney District Court on 1 June 2005. The respondent had been found guilty by a jury of one count of use a copy of a false instrument for which the maximum penalty is ten years imprisonment (Crimes Act 1900 s 301(2)). The circumstances of the offence may be briefly stated. The respondent was a professional valuer. He valued a property at Lidcombe and attached a false document certifying that he had professional indemnity insurance, when, in fact, his insurance had lapsed. As it happened, the document was relied upon by the lendor, who lost approximately $250,000 because the borrower and “owner” of the property was a fictitious person.

2 The sentencing judge however held that the respondent was not part of the “wider fraud” involving the fictitious owner and there was no finding that he had knowledge of the fraud. It was however, clearly important to the approval of the loan that the respondent held professional indemnity insurance cover. There was evidence at trial that the lender would not have advanced the loan had it been know the certificate given by the respondent was false. It appears that his Honour was entitled to proceed on the basis, as he did, that there was no direct financial benefit accruing to the respondent, apart from not having to pay a fee for a certificate of indemnification. The offence however, was a serious one quite apart from the fact that the respondent at the time had been on conditional bail awaiting sentence for two false statement offences in respect of…

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 Wilson

Details

AGLC: Regina v Wilson [2005] NSWCCA 414
Case: [2005] NSWCCA 414
Decision Date: 30 November 2005

CaseChat Overview and Summary

This appeal concerns the sentence passed by the District Court against the respondent, Michael John Wilson, who had been found guilty of using a copy of a false instrument in contravention of section 301(2) of the Crimes Act 1900. The maximum penalty for this offence is ten years imprisonment. The circumstances of the offence were that the respondent, a professional valuer, certified that he had professional indemnity insurance, which he did not. This false certification was relied upon by a lender, who lost approximately $250,000 due to the borrower being a fictitious person. The sentencing judge found that the respondent was not part of the wider fraud and was unaware of it.

The appeal raised two issues. The first issue was whether the sentencing judge erred by determining the sentence should be suspended before determining the appropriate length of the sentence. The second issue was whether the sentence was manifestly inadequate. The Court found that the sentencing judge erred by determining that the sentence should be suspended before determining the appropriate length of the sentence. Furthermore, the Court found that the sentence was manifestly inadequate. The requirements of both general and specific deterrence left no doubt that the sentence imposed by the sentencing judge was manifestly inadequate.

The Court allowed the appeal and quashed the sentence imposed in the District Court. The Court imposed a sentence of imprisonment for two years with a non-parole period of twelve months. The sentence was to be served by way of Periodic Detention and was to commence on Friday 9 December 2005. The respondent was to report to the officer-in-charge of Parramatta Periodic Detention Centre by 4pm on that day. The non-parole period was to expire on 8 December 2006, the date upon which the respondent was to be released to parole.

Orders