Robert Harry Ramsay Seagrim v R Nos. SCCRM 94/395 and 94/425 Judgment No. 4888 Number of Pages 4 Criminal Law and Procedure

[1994] SASC 4888

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) and OLSSON(3) JJ

CWDS
Criminal law and procedure - Sentence - fraudulent conversion - forgery and uttering - accountant's misappropriation of clients' monies - plea of guilty and co-operation with police - failure of sentencing judge to indicate extent of discount for plea of guilty - suspicion that sentencing discretion may have miscarried by reason of failure to make such discount - reduction of sentence by Court of Criminal Appeal, sentencing afresh, from aggregate sentence of 6 years with 3 and 1/2 years non-parole period to 4 years with 2 years 9 months non-parole period.

HRNG ADELAIDE #DATE 9:12:1994

Counsel for appellant:     Mr S P White

Solicitors for appellant:    O'Loughlins

Counsel for respondent:     Mr J J Doyle QC with Mr S J Smart

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against sentences imposed in the District Court, for certain offences committed against the law of the State of South Australia and certain offences committed against the law of the Commonwealth.

2. The appellant pleaded guilty to three counts of fraudulent conversion as a trustee, 35 counts of fraudulent conversion and one count of obtaining money by false pretences. He asked that 47 further offences of fraudulent conversion be taken into account.

3. The offences against the law of the Commonwealth consisted of 17 counts of forging and 17 counts of uttering documents, in connection with applications for variation of provisional tax.

4. The learned sentencing judge imposed an aggregate sentence of imprisonment for six years, with a non-parole period of three and a half years with respect to the State offences. He imposed a sentence of imprisonment for three and a half years with a non-parole period of two years with respect to the Commonwealth offences. He ordered that the sentences be served concurrently.

5. The appellant has appealed to this court, and his counsel has argued that those sentences were excessive in the circumstances of the case and, moreover, that the learned sentencing judge did not make any or sufficient allowance for the appellant's plea of guilty and cooperation with the investigating police and authorities.

6. The appellant, although without professional qualifications, had worked in his father's accounting business since he was a young man. His father who was a professionally qualified accountant, retired in 1983. He subsequently died in 1986.

7. Following his father's retirement the appellant attempted to carry on the business. He was at a disadvantage, of course, in lacking professional qualifications. There was a further disadvantage that he was not a registered tax agent, his father having that registration. He applied to be registered as a tax agent, but there was a delay of some six months in securing that registration and in that time there was a considerable loss of tax business to the practice.

8. The appellant had a number of personal and other difficulties. He had matrimonial problems which had significant property implications, and, as the result of all those difficulties, matrimonial and personal difficulties, he found himself in financial difficulties. The income from the practice, which was declining, was not sufficient for his day-to-day living expenses and to meet his other commitments.

9. He resorted to misappropriation of his client's money. That misappropriation continued over a period of a year. Generally speaking, the method used was to make application for variation of provisional tax on behalf of clients, forging their signatures to the necessary application, and making use of the money for his own purposes.

10. In the end, of course, he had to account for the monies, and there was a process of taking one client's money in order to make up the deficiency in the sums held for other clients. The total amount of defalcations over that period was about $427,000. In addition to the process of robbing Peter to pay Paul, he also liquidated assets of his own which were used to repay clients.

11. The net defalcation after all set-offs and restitution is taken into account is about $183,000. The Commonwealth offences of forging and uttering were simply the means by which the appellant implemented his fraudulent activities. They did not involve any further defalcations in addition to those involved in the State offences, although, of course, the use of forgery in the course of the criminal activity was an aggravating feature of the State offences. Clearly, his Honour took that into account in fixing the punishment for the State offences, and he therefore quite properly made the punishment for the Commonwealth offences concurrent with that imposed for the State offences.

12. It is unnecessary to stress the gravity of the crimes involved in misappropriating money which has been entrusted to a professional person. There is a very substantial element of breach of trust involved in such offences.

13. Clients who entrust their money to professional persons do so because of the standing which those persons enjoy, and are entitled to expect that their money will be dealt with, as it ought to be, for their benefit. Although the appellant was not professionally qualified, he was carrying on a professional practice and stood in that same relationship of trust to his clients as a professionally qualified accountant would stand.

14. The crimes are therefore serious, and whilst the court has to bear in mind the various points made on the appellant's behalf by Mr White, in the end, deterrence must be the dominant factor in fashioning a sentence for this type of crime.

15. The appellant is 53 years of age, or was 53 years of age at the time of commission of the offences, and he has no prior convictions. He has enjoyed a good character. He has worked, as I have said, in his father's practice during most of his lifetime. His good character was positively spoken of before the learned sentencing judge.

16. Nevertheless, in a case of this nature previous good character has to give way to the necessary deterrent purpose of sentencing. Most people who commit offences of this kind are able to do so only because they enjoyed a good character and, therefore, have been people to whom the public have been prepared to entrust their affairs and their money.

17. What is very much in favour of the appellant is that he was frank and cooperative with the authorities virtually from the beginning, and gave full cooperation in the investigation of his affairs. Moreover, he pleaded guilty to the charges. That is always an important consideration. It is perhaps even more important in a case of this kind where it is clear that if there had been a plea of not guilty, the State would have been put to the expense of a long and complex trial and that the resources of the courts would have been accordingly taxed. It is important that the court should give full weight to a plea of guilty, and particularly a plea of guilty entered in a case of this kind. It is also very important that sentencing judges should indicate the extent to which they are discounting the sentence which would otherwise have been imposed for the plea of guilty.

18. Unfortunately, the learned judge in the present case did not indicate the extent to which he was discounting the sentence which he would otherwise have imposed by reason of the plea of guilty. He refers to the plea of guilty in the course of his sentencing remarks, but it is impossible to discern from those remarks what the extent of the discount was.

19. Indeed, whilst this court tends to assume that sentencing judges have implemented the law as it stands and the decisions of the Court of Criminal Appeal in fashioning their sentences, even in the absence of express reference to the relevant principles, where a judge has failed to comply with the directions so often given by the Court of Criminal Appeal that the sentencing judge should indicate the extent of the discount, it is not always possible for this court to assume that a discount has been given, or that the plea of guilty has been given the weight which it ought to have had in the circumstances of the case.

20. If the judge does not say how much discount has been given, it is difficult for this court to judge whether an adequate discount has been given. In the present case the sentence imposed by the learned judge is a severe sentence. The severity of the sentence is such that it gives rise, in my mind, to some doubt as to whether the learned sentencing judge could have made a discount, or at least an appropriate discount, for the plea of guilty. In those circumstances, I think that this court must act upon the basis that the sentencing discretion has miscarried and must therefore look at the appropriate sentence afresh.

21. I have already referred to most of the significant factors which would operate on the court in fashioning an appropriate sentence. If there had been no plea of guilty I consider that the sentences imposed by the judge would have been the proper sentences. But having regard to the matters which I have mentioned and, in particular, to the plea of guilty, the appropriate sentence for the State offences is imprisonment for four years with a non-parole period of two years and nine months, and the appropriate sentence for the Commonwealth offences is three years and three months with a non-parole period of 21 months.

22. The sentence for the Commonwealth offences is to be served concurrently with that for the State offences, and both to commence on 25th August 1994.

JUDGE2 MOHR J I agree.

JUDGE3 OLSSON J I also agree.