Regina v Anthony Rizk [2005] NSWCCA 104

New South Wales Court of Criminal Appeal

CITATION: Regina v Anthony Rizk [2005] NSWCCA 104

HEARING DATE(S): 21 March 2005

JUDGMENT DATE: 29 March 2005

JUDGMENT OF: Mason P at 1; Barr J at 2; Johnson J at 19

DECISION: Leave to appeal granted. Appeal dismissed.

PARTIES: Regina, Anthony Rizk

FILE NUMBER(S): CCA 2004/3169

A Martin COUNSEL: P Ingram

Nikola Velcic & Associates SOLICITORS: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0378

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3169

MASON P BARR J JOHNSON J

29 MARCH 2005 REGINA v ANTHONY RIZK Judgment 1 MASON P: I agree with Barr J. 2 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. The applicant, Anthony Rizk, pleaded guilty before the Local Court of seven offences under s178A Crimes Act of fraudulently misappropriating moneys. He was committed to the District Court for sentence. For reasons which are not material to this application it became desirable to place three of the charges on an indictment. The applicant pleaded guilty to those charges when arraigned and maintained his pleas of guilty to the remaining four charges, which were particularised in an information and summons. Taylor DCJ sentenced the applicant on each count to imprisonment for three years with a non-parole period of two years and three months. His Honour ordered all the sentences to be served by way of periodic detention, commencing on 18 March 2004. The non-parole period was ordered to expire on 17 June 2006. 3 The applicant was a real estate salesman and director of Jenko Properties Pty Limited, a licensed real estate agent trading as Ray White Merrylands. The business of the agency included the receipt of rents for tenanted premises. Moneys so received were deposited into a trust account. Between about April 1999 and about January 2000 the applicant had authority to sign cheques drawn on the trust account, though the signature of two authorised persons was always required. After early 2000 the applicant ceased to become a signatory because he was generally unavailable. Others took on that responsibility. 4 By August 2000 the business was not doing well. One of its obligations was to pay a certain amount of money to sponsor a football club. It did not have the necessary money, so the applicant drew a cheque on the trust account and signed it. Contrary to its instructions, the bank honoured the cheque. Encouraged by his unexpected success, the applicant drew and signed a series of further cheques, which were all honoured when negotiated through the private bank account of a friend. In each case the benefit went directly or indirectly to the applicant. Altogether seven cheques were drawn and negotiated between 29 August and 25 September 2000. The total value of the cheques was $19,356.40. As a result there was not enough money in the trust account to cover cheques drawn in the ordinary course of business to pay the landlords the proceeds of the rents received. Accordingly, cheques began to be dishonoured. A report was made to the Department of Fair Trading and an enquiry was instituted. 5 As soon as he was asked about the matter the applicant confessed what he had done and gave a full explanation about all the cheques he had drawn. He underwent an interview with officers of the Department of Fair Trading in which he gave full particulars. He admitted his guilt when spoken to by the police. 6 Notwithstanding the strong case that then existed against the applicant, no charges were brought until well into 2003. In September of that year the applicant pleaded guilty in the Local Court. The Crown acknowledged that that was his earliest opportunity to do so. 7 The applicant was a man of thirty years of age with no prior criminal history. He was married with a family, but by the time of sentence his offences had caused his family to disown him. His marriage had broken up and the matrimonial home was to be sold. Arrangements had been made, which his Honour was told would come into effect within a few weeks after sentence, for the full reimbursement of the moneys misappropriated. Those moneys were to come from the proceeds of sale of the matrimonial home. A deed, made between the applicant and his wife and having that effect, was tendered before the sentencing judge. 8 The applicant was represented by a solicitor, who tendered a psychologist's report from Ms Emma Collins. Not surprisingly, it showed that the applicant was anxious and depressed. Ms Collins considered that he was of average intelligence. She did not suggest that he had any mental illness or intellectual deficit. 9 During debate counsel for the Crown and for the defence acknowledged that a custodial sentence was necessary, but whereas the Crown submitted that a sentence of full time custody ought to be imposed, the solicitor for the applicant submitted that the applicant should not be sentenced to full time custody. There was this exchange - His Honour: That's the issue, isn't it? Tabchouri (solicitor for the applicant): That is the issue. His Honour: Full time custody or periodic detention? Tabchouri: I think it's...(not transcribable) … His Honour: There is no other sentencing disposition that's appropriate? Tabchouri: No, I'll let my friend speak before I do.