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Court of Criminal Appeal 13 May 2002

R v Tomich

[2002] NSWCCA 175

Also reported as (2002) 127 A Crim R 234
Fraud & dishonestyTheft & property
SENTENCING GLOBAL SENTENCING IMPERMISSIBLE MISDESCRIPTION OF OFFENCES COMPELLING SUBJECTIVE FEATURES

Citation: R v Tomich [2002] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 13 May 2002
Judge(s): Smart AJ; O'Keefe J

Background

The appellant was a former clerk of St George Bank who pleaded guilty to a series of offences committed between 1998 and 2000. The offences included multiple counts of larceny as a clerk, inserting and altering data in the bank's computer systems, and making a false instrument. In total, the charges and additional matters on a Form 1 (a list of further offences taken into account at sentencing without separate conviction) encompassed well over 100 individual acts.

The District Court sentenced the appellant in June 2001. The sentencing judge imposed what amounted to a global or group sentence across multiple counts, rather than a separate sentence on each individual charge. The judge also took the Form 1 offences into account against the wrong charge and misdescribed certain offences in the process.

The appellant sought leave to appeal out of time, filing her application nine days late because she was unaware of the 28-day deadline. The Court granted the extension given the short delay and the substantial grounds available for argument.

  • Whether the sentencing judge erred by imposing a global or group sentence across multiple counts rather than an individual sentence on each charge
  • Whether the judge erred in attaching the Form 1 offences to the wrong charge
  • Whether the judge correctly described the offences on which sentences were being imposed
  • Whether the overall sentences were excessive having regard to both the objective seriousness of the offending and the appellant's subjective circumstances

Decision

The Court found that the sentencing judge had committed fundamental procedural errors. Global or group sentencing across multiple counts is not permissible under the applicable legislative framework, and the judge had failed to impose a separate sentence on each individual count. The judge had also misdescribed several offences in her remarks on sentence and had attached the Form 1 matters to the wrong charge, contrary to the document as signed by the appellant.

Taken together, these errors compelled the Court to resentence the appellant entirely. Because all matters had been dealt with together and interlocking sentences had been imposed, the Court reconsidered every sentence afresh.

On resentencing, the Court balanced the objective seriousness of the offending against the appellant's compelling subjective features. The appellant had experienced significant personal hardship, including marital breakdown, estrangement from her adult sons, and severe financial pressure, which the Court accepted had contributed to her offending. The Court accepted that in ordinary circumstances she was unlikely to have committed these offences.

The Court reduced the total effective head sentence from five years to four years and reduced the effective non-parole period to two years, reflecting both the need for deterrence in cases of financial fraud and breach of trust against an employer, and the weight of the appellant's personal circumstances.

Orders Made

  • Time extended for the appellant to seek leave to appeal
  • Leave to appeal against sentences granted
  • Appeals allowed and original sentences quashed
  • In substitution, the following sentences were imposed:
  • On each of the two larceny-as-clerk counts ($1,000 each, July 1999): fixed term of 1 year commencing 12 April 2001
  • On each of the ten larceny-as-clerk counts, four counts of inserting false data, six counts of altering stored data, and one count of making a false instrument: fixed term of 2 years commencing 12 April 2001, all concurrent
  • On the larceny-as-clerk count ($15,000, 14 October 1998), taking into account 99 Form 1 offences: 3 years imprisonment commencing 12 April 2002 with a non-parole period of 12 months
  • Effective head sentence: 4 years; effective non-parole period: 2 years; eligible for parole on 11 April 2003

Key Takeaways

  • Global or group sentencing across multiple counts is impermissible. A sentencing court must impose a separate, identifiable sentence on each individual charge.
  • Under the Crimes (Sentencing Procedure) Act 1999, Form 1 offences must be taken into account against the specific charge to which the Form 1 is attached, and careful adherence to the statutory requirements is necessary.
  • Misdescription of offences in sentencing remarks, combined with procedural errors in handling Form 1 matters, can compel a full resentencing exercise where the original sentences were interlocking.
  • Financial fraud on an employer involving repeated breaches of trust warrants a deterrent sentence, reflecting the seriousness with which courts treat abuse of a position of confidence.
  • Compelling subjective features, including significant personal hardship and the circumstances in which the offending arose, remain relevant to the ultimate sentence even in cases of serious and prolonged dishonesty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 156, 300(1), 310(a) (now repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(4)
- Criminal Appeal Act 1912 (NSW)

Cases cited: None cited in the judgment.