R v Malcolm Ernest Campbell [2001] NSWCCA 162

New South Wales Court of Criminal Appeal

CITATION : R v Malcolm Ernest Campbell [2001] NSWCCA 162 FILE NUMBER(S) : CCA 60456/00 HEARING DATE(S) : 9/4/2001 JUDGMENT DATE : 9 April 2001

PARTIES : Regina Malcolm Ernest Campbell JUDGMENT OF : Dowd J at 1; Smart AJ at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0717 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : Mr P Byrne SC- Applicant Mr PG Berman SC- Crown SOLICITORS : Mr GJ Gould- Applicant SE O'Connor- Crown CATCHWORDS : Severity of sentence - Embezzlement - Special circumstances LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999. CASES CITED: R v Pantano (1990) 49 A Crim R 328. R v Sellen (1991) 57 A Crim R 313. DECISION : 1. Leave to appeal granted; 2. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

DOWD J SMART AJ

9 APRIL 2001

60456/00

R v MALCOLM ERNEST CAMPBELL

REASONS FOR JUDGMENT

1 DOWD J: The Court is in a position to give judgment in this matter. Before Hosking SC DCJ, the applicant, who is fifty-four years of age, entered a plea of guilty to 8 counts of embezzlement, contrary to s157 of the Crimes Act 1900 ('the Act'), which offence carries a penalty of ten years imprisonment; and 8 counts of publishing a document with intent to obtain a financial advantage contrary to s178BB of the Act, which carries a penalty of five years imprisonment. 2 The 8 counts under s178BB of the Act were in respect of the same transactions as the offences under s157 of the Act. 3 In sentencing, His Honour took into account on count 3 311 offences against s157 of the Act, and a further 8 matters under s178BB of the Act on a Form 1. The indictment matters related to offences committed by the applicant from January 1999 to May 1999. The Form 1 matters occurred continuously between December 1995 through to 1999. 4 The prisoner was employed by Metropolitan Business Machines Pty Ltd in July 1995 as a Credit Manager, a position he held until he resigned on 1 June 1999, his duties being to collect invoice funds and arranging for deposits. An audit in May 1999 showed a considerable number of discrepancies. On his arrest on 1 June 1999, the applicant admitted to his employer that he committed the offences, and indicated a desire to completely co-operate with investigative police, and made full and frank admissions. 5 The applicant said that he had been retrenched from his previous position and, having been employed by the company from whom he embezzled, he suffered a reduction in salary. He therefore decided to open accounts into which the company's cheques were paid, removing a total number of cheques in excess of $2,430,000. Most of the cheques, totalling $1.7million, were removed between July 1997 and July 1999. The counts in the indictment were for individual amounts of up to $55,864. 6 The applicant's methodology was that the cheques made payable to his employer were paid by him into other accounts which he had opened. One account was in the name of 'New Metropolitan Business Machines', from which account the proceeds of the cheques were later withdrawn and used by the applicant. He repeated this procedure with several different banks. 7 The former employer has received approximately $1.5million by way of recoupment. However, of that sum, only $131,245 has come from either cash held by the applicant or the realisation of assets held by the applicant. The balance has come from the St George Bank and Westpac Banking Corporation. 8 Several other banks are re-negotiating issues of repayment as a result of legal action taken by the proprietor of the employer company. 9 His Honour, on sentence, found that the victim company would be out-of-pocket approaching $1million. The banks are also seeking compensation for the amounts that they have been called upon to pay the victim company as a result of claims made by that company for cheques wrongly paid. 10 The system of the employer company was that it did not take out monthly balances. The applicant said to the police, about the company, that "nothing actually ever balanced you know". 11 The company had been struggling for several months before the audit, as it had been unable to get supplies as it had not paid its debts. The applicant acknowledged that it was as a result of his own embezzlement that the liquidity problem arose. 12 Some nine months before his arrest in August 1998, the applicant met a woman whom he later set up in Lombok, and for whom he purchased a unit and a block of land. 13 In his Remarks on Sentence, His Honour emphasised that these were extremely serious offences, objectively calling for consideration of both criminal and specific deterrence. His Honour relied on R v Pantano (1990) 49 A Crim R 328, a broadly similar case which collected, in the judgment of Smart J, a number of authorities relevant to sentencing prisoners of this order, might I say, with his usual thoroughness. In his judgment, and as quoted by Hosking SC DCJ in these present proceedings, Smart J at page 336 said that: