New South Wales Court of Criminal Appeal CITATION: Regina v Higgins [2006] NSWCCA 326 HEARING DATE(S): 10 October 2006 JUDGMENT OF: Tobias JA at 35; Grove J at 1; Bell J at 36 EX TEMPORE JUDGMENT DATE: 10/10/2006 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - FRAUDULENTLY OMIT TO ACCOUNT - SENTENCE FOLLOWING CONVICTION AT TRIAL - CROWN APPEAL - BANK MANAGER TRUSTED BY ELDERLY CUSTOMER TO INVEST PROCEEDS OF CHEQUE - FACTS FOUND BY SENTENCING JUDGE APPROPRIATELY IDENTIFIED CULPABILITY - NO ERROR IN DECLINING TO INCREASE SENTENCE IN CIRCUMSTANCES BY REASON OF CROWN REFERENCE TO s 21A(2)(k) OF CRIMES (SENTENCING PROCEDURE) ACT 1999 - IMPOSITION WELL WITHIN SOUND DISCRETIONARY RANGE LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Elyard v Regina [2006] NSWCCA 43 R v Tadrosse [2005] NSWCCA 145 PARTIES: Regina v Graham Patrick Higgins FILE NUMBER(S): CCA 2006/1257 COUNSEL: V. Lydiard (Crown/Appellant) C.B. Craigie SC (Respondent) SOLICITORS: S. Kavanagh (DPP) S.E. O'Connor (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/51/0051 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 26 April 2006 IN THE COURT OF CRIMINAL APPEAL 2006/1257 TOBIAS JA GROVE J BELL J 10 October 2006 REGINA v GRAHAM PATRICK HIGGINS Judgment 1 GROVE J: This is an Crown appeal asserting the manifest inadequacy of sentence imposed by Black DCJ in the District Court at Lismore. 2 The respondent was tried upon indictment containing a single count of fraudulently omitting to account contrary to s 178A of the Crimes Act 1900. The offence occurred in October 2002 and the trial took place in February and March 2006. As recorded in a pre sentence report by a Ms Perrie dated 13 April 2006, the respondent does not accept the finding of guilt by the jury and "repeatedly expressed his innocence regarding the offence." 3 In October 2002, the respondent was a manager employed by the Commonwealth Bank of Australia. He had been an employee of the bank for most of his working life which was a period of about twenty seven years. A number of elderly customers of the bank resided in a complex including a nursing home and the respondent used visit them to attend to any of their banking needs. One of these, a Mrs Loder, came into possession of a cheque from the National Australia Bank for a sum of a little over $73,000. This was apparently a return of some capital following alteration in her living circumstances within the complex. The cheque was given to the respondent for the purpose of investment of the proceeds. The respondent did not do so and he did not account for the money. Mrs Loder died and the matter apparently came to light when the executor of her will discovered a receipt for the funds. 4 The respondent was charged in September 2003. Upon being charged he was dismissed from his employment by the bank. Thereafter, up to the time of trial, he obtained some employment as a courier and as a debt collector. Enquiry by Ms Perrie at the debt collection agency revealed that the respondent was considered good at his job and was a valued employee. However, he had not informed them of the pending charge and a representative stated that it was improbable that he would have been offered employment if this had been revealed. 5 The respondent was born on 10 April 1958. He is a married man and he and his wife have three children. He has no other convictions. 6 The maximum prescribed penalty for an offence contrary to s 178A is imprisonment for seven years. Black DCJ sentenced the respondent to imprisonment for a term of three years and specified a non parole period of one year nine months. In specifying that non parole period his Honour found special circumstances within the meaning of applicable legislation. 7 The Crown notice of appeal asserted a single ground that the sentence was manifestly inadequate, but in written submissions there were advanced separate grounds which included manifest inadequacy as an expressed fifth ground. It is convenient to deal with these grounds as now stated. 8 Ground 1. The sentencing judge erred in declining to find that breach of trust was an aggravating feature under section 21A (2)(k) of the Crimes (Sentencing Procedure) Act 1999. 9 Section 21A (2)(k) reads as follows: "(k) The offender abused a position of trust or authority in relation to the victim." 10 It had been the Crown submission to Black DCJ that such an aggravating factor was present. In his remarks on sentence his Honour said: "People who hold a position of trust as far as the community is concerned have to realise that the consequences of breaching that are significant. Having referred to the question of trust I am not satisfied, despite what the Crown says, that subs (k) of subs (2) is appropriate to add in as an aggravating factor, because I take the view in this case that was an element of this offence." 11 It is submitted to this Court that these remarks reveal error because breach of trust is not an express or essential element of an offence contrary to s 178A. It is pointed out that no direction was given to the jury that proof of breach of trust was requisite to sustaining the prosecution case. 12 I observe that breach of trust in the sense of misconduct by a trustee may not necessarily be synonymous with abusing a position of trust as expressed in s 21A (2) (k). Be that as it may, it was his Honour's task to sentence the respondent for what he had done and to avoid what has come to be referred to as "double counting" in making sentence assessment. 13 I would respectfully endorse the observations of Howie J in Elyard v Regina [2006] NSWCCA 43: "It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands." 14 In my opinion it would be an unproductive exercise to analyse whether some form of breach of trust or underlying policy to that effect is a characteristic of an offence against s 178A. Black DCJ clearly recognized the respondent's culpability in taking possession of the cheque from the elderly customer and failing to account for its proceeds. Once he had taken those facts into account there was no call to elevate an appropriate penalty for that misconduct. 15 I am unpersuaded that his Honour has been demonstrated to have fallen into error and would reject this ground. 16 Ground 2. The sentencing judge erred in giving too much weight to good character. 17 As the expression of this ground conveys the complaint is focussed upon weight. The Crown's submissions do not identify any particular factor constituting miscarriage of his Honour's discretion. His findings that the considerable quantity of referees whose testaments had been tendered harboured a great admiration for the respondent and that he had (in the past) contributed significantly to the welfare of the community were not challenged. 18 It is not perceptible that his Honour attributed too much weight to these factors insofar as they favoured the respondent. 19 Ground 3. The sentencing judge erred in not giving weight to general deterrence. 20 The Crown submission relies upon two related matters. The first is that an express submission was made to his Honour that there was a need for general deterrence and, second, that his Honour made no reference in his remarks on sentence (described in a written submission as "his judgment") to general deterrence. 21 Whether a sentence is sufficient to operate as a deterrent to other would-be offenders can be gauged by its content. Mere incantation that general deterrence has been taken into account will not assist in determining whether a sentence has been infected by error. 22 There is nothing in the sentence as assessed demonstrating that the need for general deterrence was ignored. 23 Ground 4. The sentencing judge erred in finding special circumstances. 24 The written submissions by the Crown in support of this ground commenced with the statement: "The sentencing judge found special circumstances in circumstances where such a finding was not justified and an extended period of supervision was not required." 25 However, the final sentence in that submission is: "….that in the respondent's case there was no circumstance sufficiently special to justify the variation." 26 His Honour was expressly alert to the fact that because a matter was capable of amounting to a special circumstance, a finding to that effect does not become obligatory. He found special circumstances in a combination of matters which he stated to be the respondent's age, his state of health, which was evidenced, and carried an implication that it was likely to make his service in incarceration more onerous than would ordinarily be the case and a need for assistance in re-establishment into the community on release. 27 Each of those matters was available to constitute a special circumstance and provided a legitimate foundation for his findings. 28 The Crown has calculated that the non parole period specified is in fact equivalent to 58 percent of the total term. This can be contrasted with 75 percent of total term which would follow application of the statutory ratio. Once it is accepted, as I do, that special circumstances were available to be found, the question is whether the departure from statutory ratio has been so great as to show latent error. The proposition of such error cannot be sustained in the light of the figures just quoted. 29 Ground 5. The sentence is manifestly inadequate. 30 As already observed this is the essential ground specified in the notice of appeal and to the extent that some grounds complain of matters of weight, an ultimate judgment can be made against the imposition which his Honour made. It has already been mentioned that the total term approaches one half of the maximum available penalty. In support of final submissions on this encompassing ground the Crown points to the elderly victim, the gross "breach of trust", the significant sum of money and the absence of contrition. The lastmentioned can, of course, be a matter which will deprive an offender of a claim for mitigation but it is not a matter which contributes to the heinousness of an offence. 31 Against the inculpatory factors which his Honour's remarks show have been expressly taken into account, it is necessary to balance factors such as the respondent's prior good character, his credit worthy previous contributions to the community and the apparent unlikelihood of repetition of offence. 32 It is significant to note that there was evidence before his Honour that the respondent had an accrued superannuation benefit which, as a result of his dismissal, reduced what would have been a benefit of $284,000 to something in the order of $128,000. His Honour expressly took into account this effectively non curial punishment and it has not been suggested that he was in error in so doing. 33 In my view the sentence imposed by Black DCJ lay well within the ambit of the sound exercise of his discretion. 34 I would dismiss the appeal. 35 TOBIAS JA: I agree with Justice Grove. 36 BELL J: I also agree. 37 TOBIAS JA: The order of the Court will be that the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.