Citation: Scanlan v Regina [2006] NSWCCA 238
Court: New South Wales Court of Criminal Appeal
Date: 9 August 2006
Judge(s): Spigelman CJ, Hoeben J, Rothman J
Background
The appellant was employed as a receptionist and personal assistant at Thorley Laboratories, a Sydney-based business manufacturing insect repellents. Following the sudden death of the managing director in 2000, the appellant was promoted to handle accounts payable and receivable, payroll, bank reconciliation, and related financial functions. She was one of very few remaining staff and held a position of considerable trust with a managing director who had no prior business experience.
Between 1999 and 2003, the appellant obtained over $396,000 from the business by deception. Approximately half the money was lost through gambling. She was tried in the District Court before Dodd DCJ, who directed the jury to acquit on four larceny counts but allowed four counts of obtaining money by deception under s 178BA of the Crimes Act 1900 to go to verdict. The jury convicted on all four remaining counts.
The appellant was sentenced to an effective term of four years, comprising a non-parole period of three years and a balance of term of one year. She appeared in person before the Court of Criminal Appeal, appealing both conviction and sentence.
Legal Issues
- Whether the trial judge's direction to the jury on the use of lies (often called a "lies direction" or Edwards direction) was inadequate or erroneous
- Whether the trial judge's summing-up was so biased against the appellant as to constitute a miscarriage of justice
- Whether the trial judge made evidentiary rulings that were biased against the appellant
- Whether the trial judge failed to properly direct the jury on the onus of proof
- Whether trial counsel's conduct was so incompetent as to have caused a miscarriage of justice
- Whether the sentences were manifestly excessive, having insufficient regard to the principles of totality and the personal circumstances of the appellant
Decision
The Court dismissed the conviction appeal on all grounds. Hoeben J (with whom Spigelman CJ and Rothman J agreed) examined each ground in turn and found no error that would justify disturbing the verdict. The lies direction, the summing-up as a whole, the evidentiary rulings, and the directions on onus of proof were all found to be adequate and appropriate. No specific errors were identified that could have caused a miscarriage of justice.
On the ground of trial counsel's alleged incompetence, the Court found no basis for the contention that counsel's conduct fell below an acceptable standard or that it caused any prejudice to the appellant's case. Complaints about strategic or forensic choices made at trial did not, in the Court's assessment, constitute incompetence of the kind capable of vitiating a conviction.
On sentence, the Court acknowledged the significant objective seriousness of the offending. Aggravating factors included the appellant's position of trust, the sustained period of offending (over two years), the absence of restitution, and the planned nature of the fraud. Mitigating factors included the absence of prior convictions, a strong employment history, a gambling addiction, and favourable prospects of rehabilitation.
The Court found that Dodd DCJ had properly applied the principles from Pearce v The Queen and Johnson v The Queen in structuring the sentences, making them substantially concurrent to reflect the totality principle. No error was identified in the sentencing approach, and the Court was not persuaded that the sentences were manifestly excessive. Leave to appeal against sentence was granted, but the appeal was dismissed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Sentence appeal dismissed
Key Takeaways
- A "lies direction" to a jury will not be found deficient simply because an appellant in person raises the issue on appeal; the Court examined the direction in context and found it adequate.
- Where an appellant alleges bias in a trial judge's summing-up, the summing-up must be assessed as a whole; isolated passages or rulings adverse to the accused do not, without more, establish a miscarriage of justice.
- Alleged incompetence of trial counsel requires more than dissatisfaction with forensic choices; the conduct must fall below an acceptable standard and must have caused actual prejudice to the accused's case before a conviction will be disturbed on that basis.
- In applying the totality principle to multiple counts of white-collar fraud, making sentences substantially concurrent can satisfy the requirement that the overall sentence reflect the totality of the criminality without being disproportionately crushing.
- A gambling addiction, good character, and low risk of reoffending are recognised mitigating factors in fraud sentencing, but they do not override the objective gravity of sustained, planned fraud committed in a position of trust.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 156 (larceny as a clerk), s 178BA (obtain money by deception)
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen (2004) 205 ALR 346
- R v Birks (1990) 19 NSWLR 677
- R v Corbett 52 A Crim R 112