Citation: R v Donnelly; R v Troth [2001] NSWCCA 125
Court: Court of Criminal Appeal, New South Wales
Date: 4 May 2001
Judge(s): Powell JA, Heydon JA, Simpson J
Background
The two appellants were a senior factory operator employed by a chemical manufacturer (Cementaid (NSW) Pty Limited) and the operator of a drum supply company (Drum Distributors NSW Pty Limited). They were jointly tried before Shillington DCJ and a jury in the Sydney District Court on a charge of conspiring to cheat and defraud the employer between July 1993 and July 1995.
The prosecution case was that the factory operator used his position to order, sign for, and approve payment of invoices for approximately 7,000 refurbished 200-litre drums that were never actually delivered to the factory premises. The drum supplier was alleged to have been a knowing participant in the scheme, with both men benefiting financially from the fraudulent invoicing arrangement.
After an eleven-day trial, the jury returned guilty verdicts against both appellants. Each was sentenced to three years' imprisonment, with a non-parole period of two years and three months. Both appellants sought to appeal their convictions, and both also sought leave to appeal their sentences.
Legal Issues
- Whether the jury verdicts were unreasonable, or could not be supported having regard to the evidence, under the test in M v The Queen (1994) 181 CLR 487
- Whether the sentencing judge failed to take into account relevant considerations, including subjective factors, or otherwise misapplied sentencing principles
- Whether the custodial sentences imposed were manifestly excessive in all the circumstances
Decision
The Court of Criminal Appeal dismissed both appeals against conviction. Applying the principles in M v The Queen, the court found no basis to conclude that the jury verdicts were unreasonable or unsupported by the evidence. The jury had heard evidence of purchase orders, delivery dockets, and invoices signed by the factory operator for drums that could not be accounted for, together with evidence of his conduct when confronted by management. The verdicts were open on that material.
On sentence, the court observed that the case involved a person in a position of significant responsibility committing a prolonged breach of trust. The factory operator had exploited his detailed knowledge of the employer's procedures to deceive the company over an extended period and on numerous occasions. General deterrence was identified as a significant sentencing consideration in those circumstances.
The court found no material distinction between the two appellants for sentencing purposes, given that the drum supplier was privy to and obtained a substantial financial advantage from the scheme. Counsel for both appellants appeared to concede that a custodial sentence was appropriate; the only real issue raised was its duration. The court held that any reduction would amount to no more than tinkering with a sentence that properly reflected the relevant principles, and refused leave to appeal on sentence in each case.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that an appeal against conviction on the ground that the verdict is unreasonable requires the appellate court to assess whether the verdict was one that a properly instructed jury, acting reasonably, could have returned, applying the test in M v The Queen (1994) 181 CLR 487.
- In dismissing both appeals against conviction, the court found the jury verdicts were reasonably open given the documentary evidence of signed purchase orders, delivery dockets, and invoices for goods that could not be located, together with the factory operator's inability to explain the discrepancies when confronted.
- A prolonged breach of trust by an employee in a position of responsibility, carried out systematically over nearly two years, attracted significant weight to general deterrence at sentencing.
- No error was established in the sentencing judge's approach: the court found that all relevant considerations, including subjective matters, had been properly taken into account.
- Where an appellate court can identify no sentencing error and any reduction in penalty would amount only to tinkering, leave to appeal against sentence will be refused.
Legislation and Cases Referenced
Cases:
- M v The Queen (1994) 181 CLR 487
Legislation:
- Crimes Act 1900 (NSW), s 178BA (dishonestly obtaining financial advantage by deception)
- Crimes Act 1900 (NSW), s 178BB (obtaining financial advantage by false or misleading statement)