Citation: Regina v Peter Francis MATO; Regina v Monica Charis RUSU [1999] NSWCCA 395
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 1999
Judge(s): Sheller JA; Barr J; Bell J (Barr and Bell JJ agreeing with Sheller JA)
Background
A bank teller at the Campbelltown branch of the National Australia Bank used her trusted access to the branch safe to steal $476,500 in reserve cash on the evening of 17 June 1996. She was the last employee remaining in the bank that evening and left immediately after taking the money. She walked out to a car parked outside, where her partner was waiting to drive her away. The partner regularly picked her up from work when able to do so.
Both were tried in the District Court before Acting Judge Ford QC and a jury. The teller was convicted of larceny as a clerk (that is, stealing from her employer while employed in a position of trust). Her partner was convicted of being present and aiding, abetting, and assisting her to commit that larceny.
Each was sentenced to penal servitude for six years, with a minimum term of four and a half years and an additional term of one and a half years. Both appealed: he challenged his conviction as unreasonable, and she sought a reduction in her sentence.
Legal Issues
- Whether the evidence was sufficient to support the conviction of the partner for aiding, abetting, and assisting the larceny, given the absence of direct evidence that he had prior knowledge of the teller's plan.
- Whether, if his conviction were quashed, the Court of Criminal Appeal could substitute a verdict of guilty as an accessory after the fact (under s 7(2) of the Criminal Appeal Act 1912) on the basis that he spent large sums of money after the robbery.
- Whether the six-year sentence imposed on the teller was manifestly excessive or reflected a failure to give adequate weight to her youth and clean prior record.
Decision
The partner's conviction for aiding and abetting
The Court found that it was open on the evidence for the jury to conclude that the partner had no knowledge of the robbery until after he drove the teller away from the bank. Although there was evidence of his prior financial difficulties, that evidence did not support an inference that he acquired knowledge of the theft during the drive away from the bank. The trial judge's directions, in the language used, left it open to the jury to convict on exactly that basis. Because the conviction rested on the availability of that inappropriate inference, the Court held it was unreasonable and could not be supported.
Substitution of a lesser verdict
The Crown argued that even if the aiding and abetting conviction fell away, the Court should substitute a verdict of guilty as an accessory after the fact, pointing to evidence that the partner spent large sums of money following the robbery. The Court rejected this course. To substitute such a verdict, the Court would need to be satisfied that the jury must have found the facts necessary to establish that offence. That threshold could not be met on the evidence presented, so no substitution was possible and a verdict of acquittal was entered.
The teller's sentence
The Court accepted that the sentence was severe. However, severity alone does not establish error. The trial judge's emphasis on the teller's failure to return the money or assist police, while perhaps expressed with some degree of hyperbole, did not demonstrate that he overlooked her youth or clean record. Those subjective matters had to be weighed against her lack of contrition. The Court found no error in the exercise of the sentencing discretion and declined to interfere.
Orders Made
Mr Mato's Appeal No. 60427/98
- Appeal allowed.
- Conviction on the second count of the indictment quashed.
- Judgment and verdict of acquittal entered.
Ms Rusu's Appeal No. 60418/98
- Application for leave to appeal granted.
- Appeal against sentence dismissed.
Key Takeaways
- A conviction for aiding and abetting requires proof beyond reasonable doubt that the accused had prior knowledge of the principal offender's intention to commit the offence. Mere presence at the scene, without more, is insufficient.
- Where a trial judge's directions leave open to the jury the possibility of conviction on the basis of an inference that the evidence cannot rationally support, the resulting conviction may be quashed as unreasonable.
- Substitution of a lesser verdict under s 7(2) of the Criminal Appeal Act 1912 requires the appellate court to be satisfied that the jury must have found the facts necessary to establish the lesser offence. That bar was not met here, precluding any substitution.
- In sentencing for larceny by a trusted employee, general deterrence carries significant weight. The Court of Criminal Appeal confirmed that employees who exploit positions of trust cannot deflect culpability by pointing to lax security arrangements on the part of management.
- Upholding the teller's sentence, the Court confirmed that a lack of contrition is a legitimate sentencing consideration that may offset otherwise favourable subjective factors such as youth and a clean prior record.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 7(2)
- Crimes Act 1900 (NSW)
Cases
- Knight v The Queen (1992) 175 CLR 495
- R v McDonald (1992) 2 QdR 634
- R v Browne (1987) 30 A Crim R 278
- R v Kyriakou (unreported, CCA, 6 August 1987)
- R v Vidler (unreported, CCA, 23 November 1993)
- R v Pantano (1990) 49 A Crim R 328
- R v Phelan (1993) 66 A Crim R 446