Tokley v Holmes

Case [2014] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TOKLEY v HOLMES

[2014] SASC 101

Judgment of The Honourable Justice Blue

1 August 2014

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE - GENERALLY

CORPORATIONS - MANAGEMENT AND ADMINISTRATION - DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION - OFFENCES - FALSE OR MISLEADING STATEMENTS OR INFORMATION

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

The defendant was charged in the Magistrates Court with two counts of dishonestly using his position as a director of the Abalone Council of Australia Ltd (ACA) with the intention of gaining an advantage for his company, Strategic Management Consultants Pty Ltd (SMC), and one count of knowingly giving false information to a fellow ACA director relating to ACA’s affairs.

The defendant organised ACA’s September 2008 convention at the Port Lincoln Hotel.  The total amount charged by the Hotel was approximately $61,000, which the defendant paid in October/November on his credit card.  In October, the defendant drew cheques on ACA’s bank account signed by the defendant and a fellow ACA director to reimburse himself approximately $61,000.  Later in November, cheques for $4,950 and $23,056 signed by the defendant were banked into SMC’s bank account.  The defendant’s fellow director gave evidence that there were two occasions on which he and the defendant signed blank ACA cheques: in one instance he was told by the defendant it involved payment for security at the Hotel and on the other occasion it involved payment to the Hotel.  The cheques and their corresponding butts were completed by the defendant’s partner.  The first cheque was annotated to denote security expenses and the second to denote venue hire and other expenses, each paid to the Hotel.  At some point, false invoices purporting to be on the Hotel letterhead were created for the amounts of the cheques.  An SMC invoice was also created for the amount of the second cheque. 

The defendant’s partner gave evidence that she filled in the two cheques and their butts and created the false Hotel invoices and the SMC invoice without reference to the defendant.  The Magistrate rejected her evidence and found that the defendant knew the intended purpose of the cheques when he signed them and knew that SMC was not entitled to payment by ACA for security expenses or venue hire.  The Magistrate also found that statements made by the defendant in June 2009 to a different fellow ACA director that the payments were for security expenses and venue hire each paid to the Hotel were knowingly false. 

The Magistrate convicted the defendant on each count.  The Magistrate imposed suspended terms of imprisonment of two and four months cumulatively on the first two counts and one month concurrently on the…

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Tokley v Holmes [2014] SASC 101
Case
[2014] SASC 101
Decision Date

CaseChat Overview and Summary

In the case of Tokley v Holmes, the defendant appeals against both his convictions and the sentences imposed by the court. The convictions are based on charges related to fraudulent activities involving false invoices and misuse of funds from the Australian Council of Abalone Associations (ACA). The defendant, who was the Chairman of ACA and also had roles in related companies, is alleged to have embezzled funds by creating and using false invoices for personal expenses. The sentences imposed were deemed to be excessively harsh by the defendant, leading to an appeal against both the validity of the convictions and the length of the sentences.

The court was tasked with determining whether the convictions were legally sound and whether the sentences were appropriate given the circumstances of the case. Key issues included whether the evidence was sufficient to prove the charges beyond reasonable doubt and whether the sentences imposed were proportionate to the offenses committed. Additionally, the court had to consider whether certain factors cited by the magistrate as aggravating circumstances were valid and whether the sentences constituted double punishment for overlapping conduct.

The court found that the evidence was sufficient to uphold the convictions, noting that the defendant had not provided any compelling arguments to suggest otherwise. The court also determined that the sentences, while harsh, were within the magistrate's discretion and appropriately reflected the severity of the offenses. The court rejected the defendant's claims regarding double punishment and the relevance of his voluntary work, affirming that these factors were properly considered by the magistrate. Consequently, the appeal against both the convictions and sentences was dismissed.

In conclusion, the appeal against the convictions was dismissed as the evidence supported the findings of the lower court. The appeal against the sentences was also dismissed, with the court upholding the sentences imposed by the magistrate. The defendant's request for an extension of time to appeal the sentence was denied as the court found the appeal to be without merit.

Orders

Orders of the court

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Background

Background to the litigation

The defendant appeals against the convictions on 21 grounds and against the sentences on three grounds.[4]Background[4] The sentence appeal is out of time and an extension of time is sought.ACA and SMC ACA is a company limited by guarantee. It is the peak body representing the wild caught abalone industry of Australia. Its members are the peak State bodies representing the wild caught abalone industry in the five States where abalone is wild caught. Those members are the Abalone Industry Association of South Australia Incorporated, the Tasmanian Abalone Council Limited, the Abalone Development Company of New South Wales Pty Ltd, the Abalone Industry Association of WA and the Victorian peak abalone body. Before its incorporation in 2004, ACA was an unincorporated association. Upon incorporation it remained essentially a not for profit organisation. When ACA was incorporated in 2004, it had eight directors. The defendant and Robert Pennington represented South Australia and James Hoult and Dean Lisson represented Tasmania. There were also directors representing Victoria, New South Wales and Western Australia. By November 2004, the defendant had been appointed Chairman. ACA operated a cheque account with the Commonwealth Bank. The defendant and Mr Pennington were joint signatories. SMC carried on business providing accounting, business and project management services. Its directors and shareholders were the defendant and his partner, Rona Spicer. It operated a cheque account with Bank SA. SMC provided management services to ACA. At the ACA board meeting on 18 February 2005, it was agreed that ACA would pay $80 per hour[5] for executive duties undertaken by the defendant on behalf of SMC and $20 per hour for administrative work undertaken by SMC staff. ACA’s registered office and principal place of business was at SMC’s office at Hove, South Australia. ACA’s accounts and cheque book were kept at SMC’s office at Hove.[5] All dollar figures mentioned are inclusive of GST unless otherwise stated or indicated by the context. At the material times in 2008 and 2009, SMC had three employees. The defendant provided professional services to clients. Ms Spicer undertook administration, including invoicing, banking and bookkeeping. Jessica Wolfendale was undertaking a certificate in business administration and worked as a trainee in general administration. Her duties involved general office work. One of Ms Wolfendale’s duties was to take cheques to the Bank SA branch and deposit them into SMC’s bank account.The 2008 Convention One of ACA’s functions was to conduct a triennial convention for members of the State bodies and others involved in the abalone industry. The convention in 2008 was held at the Port Lincoln Hotel (the Convention). There was an informal arrangement within ACA that the defendant, through his role at SMC, would organise the Convention. The Convention was to be held on Thursday 18 and Friday 19 September 2008. There were to be 115 attendees. Registration was to commence on Wednesday 17 September at 4.00 pm and there was to be a cocktail function for attendees and invited guests totalling 135 people between 6.00 pm and 8.00 pm that evening. There was to be a dinner on the Friday night for attendees and invited guests totalling 140 people.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Mullen and Mr Clissold were cross-examined concerning the reconciliation prepared by Ms Mullen around September 2009. Mr Clissold gave evidence that he considered that the record of the reconciliation did not have relevance to his investigation and he was not challenged or further questioned concerning that topic. Neither witness was asked to produce the record of that reconciliation and no application was made by the defendant for it to be produced. Similarly, Ms Mullen was cross-examined concerning her possession of the ACA MYOB file but she was not asked to produce it and no application was made that it be produced. Given the conduct of the defendant at trial in relation to the record of the reconciliation and the ACA MYOB file, there is no basis for a complaint on appeal that they were not produced. Conclusion on conviction appeal The defendant has not established any of his grounds of appeal against conviction. On my independent review of the evidence, taking into account the advantage that the Magistrate had of hearing and seeing the witnesses, I consider that the evidence established beyond reasonable doubt the elements of each of the offences. Appeal against sentence On 17 January 2014, the Magistrate sentenced the defendant to imprisonment for two months on count 1, four months on count 2 and one month on count 3. The sentence on count 2 was made cumulative to the sentence on count 1 and the sentence on count 3 was made concurrent with the sentence on count 1. The defendant appeals against sentence on the grounds that the Magistrate erred in:1.taking into account as aggravating factors matters that had not been proved beyond reasonable doubt;[44]2.imposing double punishment due to overlap between conduct the subject of count 3 and conduct the subject of counts 1 and 2;[45]3.sentencing the defendant on the basis that his voluntary work with people with disabilities was only in recent times while trying to rebuild his business.[46]In the event that the appeal against the convictions is not wholly successful, the defendant seeks to be re-sentenced according to law. As I have determined that the defendant has not established any of his grounds of appeal against conviction, I now turn to consider grounds of appeal against sentence.[44] Ground 1.[45] Ground 2.[46] Ground 3. The sentence appeal is out of time, the notice of appeal having been filed on 22 April 2014, although the defendant applied on 17 April 2014 for permission to amend the notice of appeal against conviction to include a ground appealing against the sentence. Whilst the defendant did not provide a satisfactory explanation for his delay, the informant does not contend that the delay has caused any prejudice and does not oppose the defendant’s application for an extension of time on any ground other than asserted lack of merit of the sentence appeal.Circumstances of aggravation The complaint made by the defendant under this ground relates to references by the Magistrate in his sentencing remarks to the two purported PLH invoices. After addressing the defendant’s conduct in November 2008 the subject of counts 1 and 2 in his sentencing remarks, the Magistrate said:[9]... Mr Lisson ... sought details of both payments ... and the documentation supporting those payments. In relation to the payment of $23,556 you maintained that it was in respect of expenses due to the Port Lincoln Hotel. This included causing a false invoice purportedly from the Port Lincoln Hotel for that amount to come into existence. ...[11]In relation to cheque 89 for $4,950, you also caused a false Port Lincoln Hotel Invoice to be provided to Ms Mullen in an endeavour to legitimise the payment as for provision of security....[16]... Your offending was a clear breach of trust. You then caused false documents to be provided to Ms Mullen and provided false information to Mr Lisson and the Board in an endeavour to conceal your dishonesty. Your efforts to conceal your offending involved a number of steps, some execution and occurred over a period of time.(Emphasis added)

Ratio Decidendi

Legal Principle Established

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