Studman v Regina

Case [2007] NSWCCA 263

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      STUDMAN v REGINA [2007]  NSWCCA 263

FILE NUMBER(S):
2007/3176 (formerly 2007/484)

HEARING DATE(S):               4 June 2007

JUDGMENT DATE: 10 September 2007

PARTIES:
Michael Simon STUDMAN (applicant)
REGINA (respondent)

JUDGMENT OF:       Basten JA Grove J Hidden J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/11/0135

LOWER COURT JUDICIAL OFFICER:     Nicholson DCJ

COUNSEL:
S Odgers SC (applicant)
M A Wigney (respondent)

SOLICITORS:
S O'Connor - Legal Aid Commission (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:  Sentence
Commonwealth and State offences of a fraudulent nature
sentencing judge's approach to setting non-parole periods
no lesser sentence warranted

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Judiciary Act 1903 (Cth)
Crimes Legislation Amendment Act (No. 2) 1989 (Cth)

CASES CITED:
R v Button & Anor (2002) 129 A Crim R 242
R v Harmouche (2005) 158 A Crim R 357
Cahyadi v The Queen (2007) 168 A Crim R 41
R v Simpson (2001) 53 NSWLR 704
Cahyadi v Regina [2007] NSWCCA 1
Shore (1992) 66 A Crim R 37
Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370
Williams v The King [No. 2] (1934) 50 CLR 551
Putland v The Queen (2004) 218 CLR 174
Johnson v The Queen (2004) 78 ALJR 616
R v Viana [2001] NSWCCA 171
Bick v Regina [2006] NSWCCA 408
The Queen v Alimic [2006] VSCA 273
The Queen v Gee (2003) 212 CLR 230
Broadhurst (1988) 25 A Crim R 349
Delcaro (1989) 41 A Crim R 33

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3176 (formerly 2007/484)

BASTEN JA
GROVE J
HIDDEN J

10 September 2007

Michael Simon STUDMAN v REGINA

Judgment

  1. BASTEN JA:  I agree with Hidden J that there should be a grant of leave to appeal and that the appeal should be dismissed.  I also agree with his Honour’s reasons.  However, I would seek to add some further comments with respect to the argument raised by counsel for the applicant with respect to the ratio of the effective non-parole period to the overall sentence.

  2. The argument for the applicant relied on an assumption that the “practice” in relation to federal offenders of specifying a period of 60-66% of the head sentence as the usual non-parole period should be adopted.  Indeed, as Hidden J has noted, this Court in Cahyadi v Regina [2007] NSWCCA 1, (2007) 168 A Crim R 41 at [36]-[40] (Howie J, Adams and Price JJ agreeing) expressed the view that it would be “unfair” to adopt the “more severe State regime” under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In that case, the principal offences were contraventions of Commonwealth law and the offences against State law were described as “only incidental” at [38]. His Honour stated:

    It seems to me in such a situation to be unfair to sentence by complying…

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Details
AGLC
Studman v Regina [2007] NSWCCA 263
Case
[2007] NSWCCA 263
Decision Date

CaseChat Overview and Summary

The case of Studman v Regina involved the applicant appealing against sentences imposed for Commonwealth and State offences of a fraudulent nature. The applicant had used his positions in the Insolvency and Trustee Service of Australia (ITSA) and later at Simms Partners to misappropriate over $514,000 from various bankrupt estates. The applicant sought leave to appeal against the sentences, which included a total imprisonment term of four-and-a-half years with a non-parole period of three-and-a-half years.

The legal issues before the court centred on the sentencing judge's approach in setting the non-parole periods for the applicant's Commonwealth and State offences. The applicant argued that a lesser sentence was warranted, while the Crown maintained that the sentences were appropriate given the gravity of the offences committed. The court had to consider whether the sentences imposed were consistent with the principles of justice and whether the non-parole periods were proportionate to the crimes.

The court found that the sentencing judge had appropriately considered the various factors relevant to setting the non-parole periods, including the seriousness of the offences, the applicant's abuse of a position of trust, and the impact on the victims. The court concluded that the sentences, including the non-parole periods, were not excessive and reflected the gravity of the applicant's conduct. Therefore, the applicant's appeal against the sentences was dismissed.

The court's final order was that the applicant's appeal against the sentences was dismissed, and the original sentences, including the non-parole periods, were upheld.

Orders

Orders of the court

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Background

Background to the litigation

The sentences for the State offences amounted to an overall sentence of imprisonment for seventeen months with a non-parole period of twelve months. The aggregate of all the sentences was an overall sentence of four-and-a-half years with a non-parole period of three-and-a-half years. The applicant seeks leave to appeal against those sentences.Facts The facts have been helpfully summarised in the Crown’s written submissions. Put shortly, over a period between 1996 and 2003 the applicant used his position as a senior officer of the Insolvency and Trustee Service (ITSA), and later his position as a senior employee of a firm called Simms Partners (a partner of which was a registered trustee in bankruptcy), to misappropriate a little over $514,000 from a number of bankrupt estates administered by ITSA and by the partner of the firm. The Commonwealth offences related to his conduct while at ITSA, and the State offences were committed while he was employed at Simms Partners. Counts twelve and thirteen, the two offences of defrauding a Commonwealth public authority, were committed with an accomplice, who has since died. Of the total amount defrauded, the accomplice obtained an amount just under $132,400, and the applicant obtained the balance. The Commonwealth offences were committed between 1999 and 2001, when the applicant was the Senior Assistant Official Receiver at ITSA, exercising powers delegated to him by the Official Trustee relating to the administration of bankrupt estates. Counts two to eight and eleven arose from the applicant’s lodgement and approval of false and fictitious proofs of debt in various bankruptcies. Dividends relating to those debts were then paid out of the bankrupt estates into bank accounts operated by the applicant in false names. Count eleven related to his fraudulently authorising the payment of a refund from a bankrupt estate to a bank account which he controlled. He used false identities and fictitious business entities, together with related false addresses and bank accounts, to facilitate the commission of the offences and to evade detection. The total amount involved in these offences was roughly $120,300. Count one involved a more complex fraud on his part. In his official capacity he contrived a settlement with a bankrupt, as a result of which the bankrupt paid $15,000 to the Official Receiver. The cheque sent by the bankrupt to ITSA was falsely recorded as a payment relating to the composition of a different bankruptcy. The applicant fabricated documents relating to this composition and its rejection, which resulted in the $15,000 being refunded to a false identity used by him. Count nine arose from the use of his position to fraudulently alter cheques endorsed as payable to ITSA, and misappropriate their proceeds in amounts totalling roughly $18,300. All the counts referred to so far were offences of fraudulently misappropriating Commonwealth property (s71 of the Commonwealth Act). Counts twelve and thirteen, offences of defrauding a Commonwealth public authority under s29D of the Act, related to fraudulent claims the applicant made, in the course of his employment at ITSA, upon the Stevedoring Industry Reform Small Business Compensation Fund. The claims were for losses purportedly suffered by fictitious entities as a result of the waterfront dispute between Patricks Stevedores and the Maritime Union of Australia in the late 1990s. He created fictitious entities, forged documents, and used bank accounts and post office boxes in false names. The total amount defrauded, which he shared with his accomplice, was a little over $264,600.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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