R v DE SOUZA [2001] NSWCCA 94

New South Wales Court of Criminal Appeal

CITATION : R v DE SOUZA [2001] NSWCCA 94 FILE NUMBER(S) : CCA 60341/00 HEARING DATE(S) : 23/03/2001 JUDGMENT DATE : 23 March 2001

PARTIES : REGINA v Terence Clifford DE SOUZA JUDGMENT OF : Studdert J at 33; Barr J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0376 LOWER COURT JUDICIAL Nash ADCJ OFFICER :

COUNSEL : Crown: WL Robinson QC Applicant: In Person SOLICITORS : Crown: SE O'Connor

CASES CITED: Regina v Edwards (1996) 90 A Crim R 510 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60341/00

STUDDERT J BARR J

Friday, 23 March 2001 REGINA v Terence Clifford DE SOUZA JUDGMENT

1 STUDDERT J: I will ask Barr J to deliver the judgment. 2 BARR J: Terence De Souza seeks leave to appeal against sentences imposed in the District Court. The applicant pleaded guilty before a magistrate and in due course confirmed his pleas before Nash ADCJ to a number of charges arising out of his dishonest conduct as a life assurance agent. 3 Altogether there were twenty charges, four of using a false instrument, the maximum penalty for which was ten years' imprisonment, fifteen of fraudulent misappropriation, the penalty for which was seven years' imprisonment, and one of dishonestly obtaining a financial advantage, the maximum penalty for which was five years' imprisonment. His Honour was asked to take into account under the provisions of Crimes (Sentencing Procedure) Act fifteen charges of using a false instrument, nineteen of making a false instrument and thirty-two of fraudulent misappropriation. All the offences were committed between October 1990 and November 1995. 4 On nineteen of the twenty counts, comprising all except one of the counts of fraudulent misappropriation, his Honour sentenced the applicant to penal servitude for a fixed term of four years, commencing on 20 March 1998, and expiring on 19 March 2002. On the remaining count of fraudulent misappropriation, and taking into account the other matters I have summarised, his Honour sentenced the applicant to penal servitude for seven years, comprising a minimum term of four years concurrent with the fixed terms and an additional term of three years. 5 The applicant was an agent of the AMP Society and was in a position to advise its policy holders about, amongst other things, the surrender of policies and the investment of funds. Over the period of five years the applicant repeatedly advised policy holders to surrender policies and invest the resulting funds in what he called a pooled investment by AMP and the Macquarie Bank. He told the policy holders that the income from the fund would be tax free and would not affect pension rights. That was a matter of some importance because several of the people he advised were pensioners. 6 Altogether there were twenty-three victims of the applicant's scheme. Three were in their late twenties, four were in their thirties, three were in their fifties, ten were in their sixties, two were in their seventies and one was eighty-three years of age. Not all of them could fully understand, read or write English. All relied upon the advice of the applicant. 7 What the applicant told the policy holders was a lie because the investment account did not exist. There was no association between AMP and Macquarie Bank. By various fraudulent means, including writing cheques and other documents, the proceeds of the surrendered policies were credited to a bank account in the name of the applicant and his wife. He used the proceeds of that account for his own purposes. His wife knew nothing about these matters. The total amount of money misdirected in this way was about one and a half million dollars. 8 The execution of the frauds required a good deal of planning and preparation and the applicant carefully executed the many steps necessary to carry it through. Even more preparation was needed to ensure that the frauds were not discovered. The applicant fabricated statements of account in the so-called fund and sent them to the persons he had defrauded. In that way his activities remained undetected for the five years over which the frauds were carried out. 9 This was not the first time the applicant had been dealt with for offences of dishonesty. In August 1978, when he was twenty years of age, he was given the benefit of a good behaviour recognisance on two charges of stealing. On that occasion he had obtained money from his employer by using cash refund vouchers to which he was not entitled. 10 On 27 February 1987, when he was twenty-nine years of age, he was given the benefit of an order to perform three hundred hours' community service on six counts of stealing a valuable security. At that time he was employed by a local council and was in a position of trust. Using that position, he diverted about $40,000 in council funds to his own use over a period of about fifteen months. 11 The persons defrauded by the applicant have not lost financially, because the AMP Society has ensured that they have received or will receive the full benefits that they would have been entitled to receive but for the fraudulent misappropriations. The result, however, is that the applicant himself and his wife have been obliged to sell up all the property they have owned and the Court has been informed that the AMP Society itself is some $800,000 out of pocket. It would not be correct, therefore, to say that substantial loss has not been caused by the activities of the applicant. 12 The applicant has represented himself in the conduct of this application and has furnished the Court with lengthy and detailed written submissions. I shall summarise the ways in which he contends that the learned sentencing judge fell into error, but before I do so I should observe for his benefit that for the most part his submissions appear to promote assertions of fact which were put before the sentencing judge and which were decided adversely to him. It is important that the applicant understand that this is not a court of sentencing or a court of rehearing. The only power this Court has is to inquire whether the sentencing process was accompanied by error, and if so to decide what the proper consequences should be. 13 The applicant's written submissions are, as I have said, put forward in considerable detail. They are ten pages long. The Crown has helpfully summarised the substance of them in the following way, and I think that this summary fairly and accurately puts what the applicant submits. 14 The applicant contends overall that the sentence is manifestly excessive and that his Honour acted on wrong principle or on irrelevant or extraneous matters or on a mistake of fact, or failed to take into account material considerations. The following particular issues arise: