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Court of Criminal Appeal 29 March 2005

Regina v Anthony Rizk

[2005] NSWCCA 104

Fraud & dishonesty

Citation: Regina v Anthony Rizk [2005] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 29 March 2005
Judge(s): Mason P, Barr J, Johnson J

Background

The appellant was a real estate salesman and director of a licensed real estate agency trading under a well-known franchise brand in western Sydney. Between late August and late September 2000, he drew and signed seven cheques totalling approximately $19,356 on the agency's rental trust account, despite no longer being an authorised signatory. The proceeds benefited him directly or indirectly. The fraud left insufficient funds in the trust account to pay landlords their rental proceeds, causing cheques drawn in the ordinary course of business to be dishonoured.

When investigated by the Department of Fair Trading, the appellant immediately confessed, gave a full account, and admitted guilt to police. No charges were brought until well into 2003, with the Crown acknowledging his guilty pleas in the Local Court in September 2003 represented his earliest opportunity to plead. He was 30 years old, had no prior criminal history, and arrangements were in place for full reimbursement of the misappropriated funds from the sale of the matrimonial home.

Taylor DCJ in the District Court sentenced the appellant to three years' imprisonment with a non-parole period of two years and three months on each of the seven counts, all to be served by way of periodic detention. The appellant sought leave to appeal against the sentences.

  • Whether the sentencing judge gave excessive weight to personal and general deterrence given the appellant's personal circumstances and the out-of-character nature of the offending.
  • Whether the sentencing judge erred by failing to find "special circumstances" under section 44 of the Crimes (Sentencing Procedure) Act, which would have justified reducing the non-parole period and thereby extending the period available for parole supervision.
  • Whether the non-parole period of two years and three months fell outside the proper range of the sentencing discretion.

Decision

By the time of the oral hearing, the appellant's counsel did not challenge the imposition of periodic detention or the length of the head sentence. The appeal narrowed to a single point: whether the apportionment between the non-parole period and the parole period was wrong because the sentencing judge should have found special circumstances under section 44.

Barr J, with whom Mason P and Johnson J agreed, noted that the appellant's solicitor had not submitted special circumstances to the sentencing judge at all. The Court acknowledged that the favourable factors, including the immediate admissions, early guilty plea, delay in prosecution, psychological impact of that delay, and plans for full reparation, may well have justified the decision to impose periodic detention rather than full-time custody. However, those same factors did not compel a longer parole tail.

The Court emphasised the strong deterrent need where trust moneys are misappropriated. The sentencing judge had appropriately weighed both specific deterrence (to guard against future offending under financial pressure) and general deterrence (to protect public confidence in real estate trust account administration). Against that backdrop, a non-parole period of two years and three months periodic detention was not outside the proper sentencing range.

Barr J also noted that while a longer parole period might have been of benefit to the appellant, it would have been inappropriate to increase the effective length of the sentences merely to achieve that result. The sole ground of appeal was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that strong deterrence considerations apply where an offender misappropriates trust account moneys held on behalf of third parties, reflecting the public interest in maintaining confidence in real estate trust administration.
  • A non-parole period representing a substantial proportion of the head sentence is not rendered excessive merely because the offender demonstrated immediate cooperation, pleaded guilty at the earliest opportunity, and had no prior criminal history.
  • Under section 44 of the Crimes (Sentencing Procedure) Act, special circumstances justifying a reduction in the non-parole period must be properly advanced before the sentencing court; an omission to do so at first instance will weigh against the argument on appeal.
  • No error was established simply by pointing to mitigating factors and asserting they deserved greater weight, absent an identifiable specific error in the sentencing judge's reasoning or findings.
  • Increasing the effective length of a sentence for the sole purpose of extending the parole supervision period is not an appropriate sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 178A (fraudulent misappropriation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 44 (special circumstances and non-parole periods)

Cases: No cases were cited in the text of the judgment.