CATCHWORDS:
CRIMINAL LAW – Appeal against sentence – company secretary – fraud – chain of offences – complete reparation of monies – strong subjective case – error by taking matters on Form 1 into account on the wrong principal offence – whether failure to properly take into account restitution – error in finding as an aggravating factor that the offences involved multiple criminal acts – whether sentence was manifestly excessive

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

CASES CITED:
Aubrey Watts v Regina [2007] NSWCCA 153
R v Brillo (unreported NSWCCA 26 May 1997)
R v Carr (2002) 135 A Crim R 171
R v Egerton (unreported NSWCCA 8 August 1997)
R v Giam (No 2) (1999) 109 A Crim R 348; NSWCCA 378
R v Houghton [2000] NSWCCA 62
R v Jackson [2001] NSWCCA 355
R v Martin [2005] NSWCCA 190
R v Pearce (1998) 194 CLR 610
R v Phelan (1993) 66 A Crim R 446
R v Scott [2005] NSWCCA 152
R v Tadrosse (2005) 65 NSWLR 740
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Wong [2001] NSWCCA 444

DECISION:
1. Leave to appeal granted
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/5063
McCLELLAN CJ at CL
HARRISON J
FULLERTON J
TUESDAY 18 SEPTEMBER 2007

STRATFORD, Barry v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to fifteen counts of fraud by an officer contrary to 176(A) of the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of ten years imprisonment.
The various offences were described as a sequence. The sentencing judge was asked to consider a further twenty-nine similar matters on a Form 1 in relation to sequence 1 which related to a cheque for the sum of $2,392.00. However, when sentencing his Honour mistakenly referred to sequence 42 and said that he took the Form 1 matters into account when sentencing in relation to that sequence. Sequence 42 involved a cheque for $16,200.00.
The total of the amounts in relation to which the applicant pleaded guilty was $61,804.00. The total amount in relation to the matters on the Form 1 was $98,633.00.
In relation to fourteen of the counts to which the applicant pleaded guilty he was sentenced to concurrent non-parole periods of ten months each to date from 18 August 2006 and conclude on 17 June 2007. His Honour did not provide any period on parole for these offences.
In relation to sequence…

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 Stratford v R

Details

AGLC: Stratford v R [2007] NSWCCA 279
Case: [2007] NSWCCA 279
Decision Date: 18 September 2007

CaseChat Overview and Summary

The applicant, who served as the Financial Controller and Company Secretary for Crawford & Co, appealed against his sentence in the High Court. The offences involved the applicant making unauthorised withdrawals from the company's accounts, amounting to $114,170 from one account and $46,267 from another. The applicant argued that the sentence was manifestly excessive and that the trial judge erred in various respects, including in considering the restitution made as part of a civil action settlement, and in treating the multiple criminal acts as an aggravating factor. The court examined whether the sentence was appropriate given the totality of the circumstances, including the applicant’s complete reparation of the stolen funds and his personal circumstances, such as the stress caused by his son’s heroin addiction.

The primary legal issues revolved around whether the trial judge's errors in considering the subjective matters and the nature of the offences warranted a reduction in the sentence. Specifically, the court had to determine if the failure to properly account for the full restitution made by the applicant as part of a civil settlement constituted a significant error, and whether the characterisation of the offences as involving multiple criminal acts was appropriate. Additionally, the court assessed whether the sentence imposed was manifestly excessive in light of the mitigating factors and the applicant's prospects for rehabilitation.

The High Court found that while the applicant had made complete reparation for the stolen funds, which was a significant mitigating factor, the trial judge had made errors in considering certain aspects of the case. The court emphasised the importance of properly evaluating subjective matters and the impact of restitution. The court also found that the trial judge's characterisation of the offences as involving multiple criminal acts was not entirely accurate, as the offences were part of a continuous chain of conduct. However, despite these errors, the High Court concluded that the overall sentence, including the non-parole period of 2 years and a balance of term of 18 months, was not manifestly excessive. The court acknowledged the personal stresses and the applicant's good prospects for rehabilitation, but ultimately upheld the sentence imposed by the trial judge.

The High Court dismissed the appeal, affirming the sentence imposed by the trial judge. The court noted that while there were errors in the sentencing process, they did not sufficiently warrant a reduction in the sentence. The decision highlighted the importance of correctly assessing subjective factors and the nature of the offences in sentencing, but ultimately upheld the sentence as appropriate given the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

The overall effective sentence was a non-parole period of 2 years with a balance of term of 18 months.The Facts The facts relating to the various offences are complicated. They occurred between 14 October 1999 and 25 October 2002. During this time the applicant was the Financial Controller and Company Secretary for Crawford & Co. He had been employed by the company since 1993. He was appointed the Financial Controller in July 1994 and the company secretary in January 1997. The applicant was authorised to make payments from the company’s business accounts. Withdrawals up to $5,000 could be made from account No 1 without requiring the authorisation of a second person. Withdrawals could be made from account no 2 without limit. Between October 1999 and October 2002 the applicant made a number of withdrawals from company accounts transferring money to bank accounts under his own control. The payments were not authorised by the company. A total of $114,170 was illegally taken from account no 1. A total of $46,267 was taken from account no 2. Both accounts were with the St George Bank. In relation to the withdrawal made from account no 1 there were a total of 34 withdrawals ranging from the sum of $1,518 to $5,350. In relation to the withdrawals from account no 2 there were ten in total ranging from $1,925 to $16,200. Subjective matters The applicant was born on 29 September 1938. After leaving school he qualified as an accountant. He is married and has two children. The younger of his sons has suffered with heroin addiction. This has impacted significantly on the lives of the applicant and his wife. It has also required the applicant to financially support his son including providing for his rehabilitation. The applicant suffered various stresses at work and has been treated for depression. He has also had a problem with alcohol which it would appear he has been able to overcome. The applicant did not give evidence before the sentencing judge. However, his wife gave evidence of his remorse which was confirmed by a report from a psychiatrist. His Honour accepted that the applicant was remorseful. The evidence disclosed that the applicant has made complete reparation for the money which he took. Apparently he brought a civil action against his former employer for wrongful dismissal and as part of the settlement of that action he accepted the obligation to repay the stolen monies to his employer. The sentencing judge accepted that in so doing he made a sacrifice. He withdrew $72,206.14 from his superannuation benefits borrowed an additional $40,000.00 from his wife and otherwise secured borrowings against his home. Before committing these offences the applicant was a person of good behaviour. His Honour found that the applicant was unlikely to re-offend and had good prospect of rehabilitation. There was evidence before his Honour which indicated that the applicant began taking money at about the time his son commenced using heroin. There is no doubt that the difficulties of his son occasioned significant stress to the applicant and may have contributed to his offending because of his need for additional monies.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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Citations

AGLC Citation

Stratford v R [2007] NSWCCA 279

Most Recent Citation

Thewlis v R [2008] NSWCCA 176

Cases citing this decision · 11 of 11 shown

R v Boujandy (No. 5)
[2023] NSWDC 316 Para 179

…appropriate having regard to the totality of the defendant’s offending and his personal circumstances: R v Pearce (1998) 194 CLR 610; Stratford v R [2007] NSWCCA 279. I have not offered any kind of a discount for the multiple offending: R v MAK [2006] NSWCCA 381.…
Bresnahan v R
[2022] NSWCCA 288 Para 112

…In Strathford v R [2007] NSWCCA 279 ( Strathford ), a company’s financial officer was charged with 15 counts of fraud, with another 29 charges on a Form 1, resulting in him obtaining about $160,000. He made complete reparation after he brought an action against the company for wrongful dismissal, and as part of that…
R v Lovelock
[2021] NSWDC 692 Para 49

…The principle was expressed in R v Chan [2000] NSWCCA 345 and Stratford v R [2007] NSWCCA 279 as being that a sentencing judge is required to have regard to the fact that an offender is being sentenced for multiple offences and is to ensure that the ultimate sentence imposed is appropriate to the totality of the off…
R v Clarke
[2019] NSWDC 2 Para 60

…offence. The ultimate sentence must be appropriate to the totality of the offending and the personal circumstances of the offender: Stratford v R [2007] NSWCCA 279 at [29]. It is conceded that an aggregate sentence is appropriate, but the sentence should not be crushing having regard to the objective seriousness of…
R v Fadel
[2019] NSWDC 26 Para 23

…(2006) A Crim R 124. I must take account of the principles of totality as summarised in cases such as R v MMK (2006) 164 A Crim R 481, Stratford v R [2007] NSWCCA 279 and R v Chan [2000] NSWCCA 345 .…
Holloway v R
[2017] NSWCCA 17 Para 39

…x months is also entirely appropriate as a reflection of the minimum period in custody having regard to the totality of offending : see Stratford v R [2007] NSWCCA 279 and the cases referred to in the judgment of McClellan CJ at CL.…
R v Hinchliffe
[2013] NSWCCA 327 Para 5

…n the available range of sentence. The Court was taken to a number of sentencing decisions referred to in the decision of this Court in Stratford v R [2007] NSWCCA 279 at [31]ff, which were said to support this submission.…
Director of Public Prosecutions v Reynolds
[2012] NSWLC 10 Para 1

…multiple offences and ensure that the ultimate sentence is appropriate to the totality of his offending and his personal circumstances: Stratford v R [2007] NSWCCA 279 at [29].…
Job v R
[2011] NSWCCA 267 Para 1

…A different conclusion was reached in Stratford v R [2007] NSWCCA 279, another case in which the offender had defrauded his employer. He had been able to make full reparation prior to sentence from the proceeds of the settlement of a civil action, together with an amount withdrawn from his superannuation benefits, a…
Ryan v The Queen
[2011] NSWCCA 250 Para 1

…y be that there are none with sufficient points of similarity to be of value. I have, however, had regard to a decision of this Court ( Stratford v R [2007] NSWCCA 279) in which McClellan CJ at CL considered, briefly, a number of cases of cumulative fraud offences. These were: R v Carr [2002] NSWCCA 434 135 A Crim R…
Thewlis v R
[2008] NSWCCA 176

…TED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment CASES CITED: R v Phelan (1993) 66 A Crim R 446 Stratford v R [2007] NSWCCA 279 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Ellis (1986) 6 NSWLR 603 R v Conway [2001…

View all 11 citing cases →

Cases cited in this decision · 9 of 9 shown

Watts v R
[2007] NSWCCA 153 Para 1

…In Aubrey Watts v Regina [2007] NSWCCA 153 I made the following remarks concerning a young offender whose addictions had been central to his criminal conduct: - "[57] In my experience, narcotic addiction, and the tragic and devastating consequences for the addict, his family and the community, is not something that…
R v Martin
[2005] NSWCCA 190 Para 41

…ion order was concerned. However the term of the sentence remained intact although it was considered that it bordered on being inadequate. R v Martin [2005] NSWCCA 190…
R v Tadrosse
[2005] NSWCCA 145 Para 28

…In R v Tadrosse (2005) 65 NSWLR 740 at 747 which involved an offender who had committed multiple offences, Howie J said: “…the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality…
R v Scott
[2005] NSWCCA 152 Para 40

…peal was upheld and the court found the appropriate sentence to be one of a minimum term of two years with an additional term of two years. R v Scott [2005] NSWCCA 152…
R v Wong
[2001] NSWCCA 444 Para 34

…ater amount of money was involved, there was not the same compelling subjective case and the amount of restitution was significantly less. R v Wong [2001] NSWCCA 444…
Regina v Jackson
[2001] NSWCCA 355 Para 35

…ction appeal. There was no appeal against sentence by the appellant or Crown. The report does not disclose the extent of any restitution. R v Jackson [2001] NSWCCA 355…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 17

…applicant pleaded guilty at the first opportunity and the sentencing judge gave him the benefit of a full Thomson discount: see R v Thomson & Houlton (2000) 49 NSWLR 383.…
R v Houghton
[2000] NSWCCA 62 Para 36

…e Crown appeal and increased the non-parole period to three years. It was accepted that the head sentence of five years was appropriate. R v Houghton [2000] NSWCCA 62…
Pearce v The Queen
[1998] HCA 57 Para 29

…required to fix an appropriate sentence for each offence and then consider matters of cumulation or concurrency as well as totality (see R v Pearce (1998) 194 CLR 610 at [45] McHugh, Hayne and Callinan JJ). Obviously when carrying out this task his Honour was required to have regard to the fact that the applicant was…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 25)
Crimes Act 1900 (ACT)
1 mention (from Para 1)