REGINA v SHANE POLLARD [2006] NSWCCA 405

New South Wales Court of Criminal Appeal

CITATION: REGINA v SHANE POLLARD [2006] NSWCCA 405

HEARING DATE(S): 30 June 2006

JUDGMENT DATE: 15 December 2006

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 1; Latham J at 1

DECISION: Appeal dismissed

CATCHWORDS: Crown appeal - manifest inadequacy of suspended sentences for "white collar" offences involving theft from employer - prior good character of lesser weight - no exceptional circumstances - discretion not to intervene.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Fell [2004] NSWCCA 235 Dinsdale v The Queen (2000) 202 CLR 321 CASES CITED: R v Wright (1997) 93 A Crim R 48 R v Zamagias [2002] NSWCCA 17 R v Pantano (1990) 49 A Crim R 328 R v Wall [2002] NSWCCA 42 at [70]

PARTIES: Applicant - Regina Respondent - Shane Pollard

FILE NUMBER(S): CCA 2006/560

COUNSEL: Applicant - DC Frearson SC Respondent - MF Galvin

SOLICITORS: S Kavanagh - Soilicitor of Public Prosecutions John Sydney Taylor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1125

LOWER COURT JUDICIAL OFFICER: C Armitage DCJ

LOWER COURT DATE OF DECISION: 3 February 2006

IN THE COURT OF CRIMINAL APPEAL 2006/560

McCLELLAN CJ at CL ADAMS J LATHAMJ

15 DECEMBER 2006 REGINA v SHANE POLLARD Judgment 1 THE COURT : The Director of Public Prosecutions appeals against the sentences imposed upon the respondent in respect of 29 counts of Obtain Money by Deception, each count carrying a maximum penalty of five years imprisonment. The respondent was sentenced on 3 February 2006 by his Honour Judge C Armitage (the Judge) to two years imprisonment, comprising a non parole period of 15 months and balance of term of 9 months, on each of two offences, and on each of the remaining 27 offences, to 12 months imprisonment. These sentences were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 2 In addition to conditions attaching to the bond, relating to the supervision of Probation and Parole and to the continuation of psychiatric treatment, the respondent was directed to pay the amount of $92,164:98 to the University of Western Sydney within 28 days of the date of sentence. The offences were committed whilst the respondent was employed by that institution as an accounts supervisor. 3 The Crown points to patent error on the part of the Judge, in that it is submitted that a determination was made to suspend the sentences before his Honour assessed the appropriate sentences. The Crown also submits that the sentences are manifestly inadequate. When the appeal was heard, the Court dismissed the appeal, indicating that reasons would be provided in due course. The basis for that decision is set out below. The Offences 4 The respondent's duties in his employment included the transfer of funds from the University's account at the National Australia Bank to creditor's accounts, using online banking. The only security measure in place was the authorisation of the transaction by another employee holding the equivalent security clearance as the respondent. In each case constituting the 29 offences, the respondent simply told one of two colleagues that he needed authorisation and it was provided. 5 The offences were committed over a three month period commencing on 26 October 2004. The respondent transferred funds from the University account into his own bank accounts on 29 separate occasions. The largest single transfer was for an amount of $62,503:20. The respondent told his wife and friends that he had won that amount playing Lotto. The majority of the transfers (22) were for amounts of less than $1000. In total the respondent took $92,164:48. 6 The respondent took steps to avoid detection by manipulating the bank reconciliations that he prepared at the end of each month. An external auditor prompted a full enquiry into the accounts in late January 2005, whereupon the respondent was interviewed, but he denied any wrongdoing. However, when he was arrested on 4 May 2005 and interviewed by police, he made full admissions and pleaded guilty at the first available opportunity at the Local Court. 7 The respondent's explanation for the offences in the record of interview with police was that he was diagnosed with depression in April 2004 and was taking medication. Over the same period of time, the family had acquired significant debts in the order of $40,000 that the respondent could not meet, including school fees, and his spiralling depression rendered him incapable of formulating a way out of his financial difficulties. In addition, he required knee surgery which placed further pressure on the family's stretched resources. The respondent was able to reduce some of those debts, particularly after he took $62K, but then continued to offend in the hope that he could repay the University by gambling with the proceeds of his offences.