Stratford v R

Case [2007] NSWCCA 279


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      STRATFORD v R [2007]  NSWCCA 279

FILE NUMBER(S):
2006/5063

HEARING DATE(S):               10 August 2006

JUDGMENT DATE: 18 September 2007

PARTIES:
Barry  Stratford (Appl)
The Crown

JUDGMENT OF:       McClellan CJ at CL Harrison J Fullerton J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          06/11/0265

LOWER COURT JUDICIAL OFFICER:     Sorby DCJ

LOWER COURT DATE OF DECISION:    18 August 2006

COUNSEL:
L Brasch (Appl)
M Barr (Crown)

SOLICITORS:
Greg Walsh & Co (Appl)
Director of Public Prosecutions (Crown)

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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. In relation to sequence…

Continue reading Stratford v R

Sign in free to access the full text

Details
AGLC
Stratford v R [2007] NSWCCA 279
Case
[2007] NSWCCA 279
Decision Date

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

Full text does not contain this section.

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

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

Full text does not contain this section.