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. The Respondent's Subjective Circumstances 8 The respondent was 36 years of age when he committed the offences. He was married with three children. He had no prior convictions and had always been in full employment as a banking officer and, latterly, in information technology. He completed an IT course at TAFE shortly before obtaining employment with the University in 1998. Over the period of time he worked at the University he had progressed from a casual position to the full-time position that he occupied at the time of the offences. 9 The reports tendered before the Judge supported these subjective features. Dr Tan, a general practitioner, had diagnosed the respondent with a major depressive illness in January 2004. The respondent was taking anti depressant medication from that time and was under the care of Dr Tan throughout 2004 and 2005. Following the detection of the offences, the respondent underwent further counselling with a psychologist. 10 To all outward appearances, the respondent was a law-abiding family man who had worked responsibly in the banking and finance sector for most of his married life. Significantly, he occupied a number of positions that gave him access to large sums of money, before he decided to change careers. The respondent's wife worked full-time as a nurse, having also re-trained since meeting the respondent in the banking industry. Their home was rented and their children attended a local Catholic school. 11 Since the respondent's arrest and discharge from his job at the University, he has sought and obtained employment in a variety of fields. The respondent ultimately secured a job in a call centre, a position he still held at the time of the hearing of the appeal. The net weekly income is $500, supplemented by a quarterly bonus if certain targets are met. 12 The respondent gave evidence of his deep regret and remorse, in addition to placing a letter before the court to the same effect (Exhibit 5). He expressed his intention to re-pay the University by regular deductions from his wages. The respondent made enquiries directed to accessing his superannuation in order to pay back the money he had stolen, but that option was unavailable. 13 The Crown on sentence accepted that the respondent demonstrated real remorse, over and above that reflected in the pleas of guilty, that his prospects of rehabilitation were promising in view of the treatment he was receiving for his depression, and that there was a basis for inferring that the respondent's illness may well have contributed to the course of offending. The Sentencing Discretion 14 The primary submission by the Crown's representative before his Honour was that a full-time custodial sentence was required in order to reflect the objective gravity of the offences, particularly in light of the established principles that general deterrence was a significant factor and prior good character was of less weight for offences of this nature. 15 The Judge referred to all of the authorities relied upon by the Crown, namely R v Corbett (1991) 52 A Crim R 112, R v Brown (unreported) Court of Criminal Appeal, 1 August 1994, R v El Rashid (unreported) Court of Criminal Appeal, 7 April 1995, R v Spelling [1999] NSWCCA 273, R v Szeto [1999] NSWCCA 296, R v Pont [2000] NSWCCA 419, R v Farlow [2001] NSWCCA 348, R v Keong [2001] NSWCCA 416 and R v Fell [2004] NSWCCA 235. His Honour found that all of these cases, with the possible exception of the last, were of limited assistance, given that the amounts involved in each were either significantly greater or lesser than in the respondent's case, some were sentences imposed after trial and some related to offenders with prior criminal histories. 16 Fell (a Crown appeal) involved an amount more than five times the quantity involved in the respondent's offences, taken from the offender's employer over a 14 month period. More relevantly, the respondent in Fell suffered from bipolar affective disorder with a schizotypal personality disorder that the Court found reduced the significance of general deterrence in the sentencing exercise. The offender in Fell received a series of suspended sentences which this Court confirmed. 17 His Honour appropriately took into account the fact that the offences displayed a degree of planning and organisation (noting at the same time that the absence of subterfuge made detection likely), that there had been a substantial loss, that the respondent abused his position of trust and that there were a series of criminal acts. No issue is taken with the Judge's decision to impose wholly concurrent sentences. In so far as the Judge went on to refer to the respondent's prior good character, acknowledging its lesser weight, the unlikelihood of reoffending and good prospects of rehabilitation, together with his remorse and the pleas of guilty, it is contended that undue weight was placed upon these subjective features. 18 It appears from the remarks on sentence that the justification for the imposition of suspended sentences lay in the Judge's assessment of the circumstances of the respondent's offending, as displaying less criminality than those cases upon which the Crown relied, and the "exceptionally good prior character of the offender" together with his psychiatric condition, "which after all came to light and was treated before the offences". (ROS 16) 19 Herein lies the gravamen of the Crown's complaint on this appeal. Reliance upon the respondent's prior good character for the purposes of determining to suspend otherwise appropriate custodial sentences appears inconsistent with the reduced significance of prior good character when sentencing for offences of this type. That reduced significance is rooted in the proposition that it is only persons of good character who generally have access to positions of trust involving the receipt and allocation of funds. The limited relevance of prior good character in formulating the length of an appropriate sentence of imprisonment cannot be transformed into a more compelling factor for the purposes of determining whether a sentence of imprisonment should be suspended : Dinsdale v The Queen (2000) 202 CLR 321. 20 There is also merit in the Crown's submission that his Honour placed more weight upon the respondent's depressive illness than was warranted, given that it was never disputed that the respondent at all times appreciated the gravity of his actions : R v Wright (1997) 93 A Crim R 48. The mental disorder with which this Court was concerned in Fell was significantly more serious and more debilitating than in the instant case. There was nothing approaching the description "exceptional" in the respondent's circumstances. 21 The Crown's submission that his Honour fell into error by determining to impose suspended sentences before determining the appropriate length of those sentences has been made good : see R v Zamagias [2002] NSWCCA 17. The remarks on sentence at p 16 effectively summarise the discussion between bench and bar in the course of the sentencing proceedings. The totality of his Honour's attention to the question of appropriate punishment was as follows :- The Crown did submit that it was possible that I would fall into appealable error if I applied a suspended sentence, inter alia because section 12 of course only allows me to suspend a total overall effective sentence of two years, which the Crown said was insufficient having regard to the criminality involved in this case. In view of the pressures of the list, I frankly indicated to the Crown at this point that the way my mind was disposed I would probably impose a suspended sentence. This of course made the defence submissions considerably briefer. Mr Taylor submitted of course that this was an appropriate course, likening the present case to Fell's case, and said that this was an exceptional case, as I understood him, because of the exceptionally good prior character of the offender, which as I have said is less important in cases of this type, and because of his psychiatric condition, which after all came to light and was treated before the offences. I broadly agree with those submissions. With some reluctance I do propose to impose a suspended sentence in the circumstances. 22 It is not necessary for present purposes to repeat the well-known statements by this Court to the effect that general deterrence deserves considerable weight when sentencing for offences committed by white-collar employees who have abused the trust placed in them by their employers : R v Pantano (1990) 49 A Crim R 328. We would add the observation that his Honour's rejection of the relevance of the decisions of this Court cited to him by the Crown's representative deprived him of the assistance that those decisions offered on the weight to be accorded to general deterrence for offences of this nature. 23 The offences required the imposition of a custodial sentence in some form. At the very least, there was no explanation provided for the failure to consider a sentence of periodic detention for which the respondent had been assessed as eligible and suitable : Zamagias at [30]. The sentences imposed were manifestly inadequate. The Discretion to Decline to Intervene 24 As was noted in R v Wall [2002] NSWCCA 42 at [70], "the Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110." 25 In view of the respondent's continued employment and his genuine intention to reimburse his former employer, we have come to the view that the restraint inherent in Crown appeals should be exercised in the circumstances of this case. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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