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6
Court of Criminal Appeal 18 September 2007

STRATFORD v R

[2007] NSWCCA 279

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE COMPANY SECRETARY FRAUD CHAIN OF OFFENCES COMPLETE REPARATION OF MONIES

Citation: Stratford v R [2007] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 18 September 2007
Judge(s): McClellan CJ at CL; Harrison J; Fullerton J

Background

The appellant was a Financial Controller and Company Secretary who pleaded guilty to fifteen counts of fraud by an officer under s 176A of the Crimes Act 1900 (NSW), each carrying a maximum penalty of ten years imprisonment. Over a three-year period between 1999 and 2002, he made a series of unauthorised withdrawals from his employer's bank accounts, transferring funds to accounts under his own control. The total amount involved across the guilty pleas and additional Form 1 matters exceeded $160,000.

The appellant's offending appeared to have begun around the time his son commenced using heroin. He supported his son financially through rehabilitation, suffered workplace stress, and experienced depression and alcohol difficulties. Notably, he made complete reparation for the stolen funds, drawing on superannuation, borrowings from his wife, and secured loans against his home.

In the District Court, Sorby DCJ sentenced the appellant to an overall effective non-parole period of two years with a balance of term of eighteen months. The appellant sought leave to appeal on four grounds, arguing the sentence was affected by legal error and was manifestly excessive.

  • Whether the sentencing judge erred by taking Form 1 matters into account against the wrong principal offence (sequence 42 instead of sequence 1 as intended)
  • Whether the sentencing judge failed to give proper weight to the appellant's complete restitution of stolen funds
  • Whether the sentencing judge erred in treating the multiple nature of the offences as an aggravating factor (given it was an element of the charges themselves)
  • Whether the overall sentence was manifestly excessive given the strength of the appellant's subjective case

Decision

Ground 1 (Wrong principal offence for Form 1 matters): The Court accepted that the sentencing judge had made a clear error by attributing the Form 1 matters to sequence 42 (a $16,200 offence) rather than to sequence 1 (a $2,392 offence) as discussed during submissions. The Crown conceded the error. However, the Court declined to intervene. It was satisfied that the difference in value between the two sequences would not have justified a materially different sentence, and that the overall sentencing structure would have been the same regardless of which sequence carried the Form 1 matters.

Ground 2 (Restitution): The Court found that the sentencing judge had acknowledged the restitution and recognised it involved genuine sacrifice. However, the obligation to repay had arisen as part of a civil settlement rather than as a purely voluntary act of contrition. Because the terms of that settlement were not placed before the court, the full picture remained incomplete. The Court was not persuaded that the judge had failed to give adequate weight to this factor.

Ground 3 (Multiple criminal acts as aggravating factor): The Court identified an error. Treating the multiplicity of acts as an aggravating feature was impermissible where that characteristic was already an element of the offence for which the appellant was being sentenced. However, this error did not, in the Court's view, cause the sentence to miscarry when considered alongside the overall sentencing approach taken.

Ground 4 (Manifest excess): The Court rejected this ground. It acknowledged the appellant's subjective case was particularly compelling, but held that the degree of objective criminality, sustained over three years and involving a serious breach of trust, made some form of custodial sentence unavoidable. The sentencing judge had given proper consideration to the appellant's personal circumstances. Those circumstances amounted to mitigation, not exculpation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Identifying a sentencing error does not automatically warrant appellate intervention; the Court of Criminal Appeal will decline to intervene where the error did not produce a materially different outcome in the overall sentencing structure.
  • Where restitution arises from a civil settlement rather than a purely voluntary act, its mitigating weight may be reduced, particularly where the full terms of the settlement are not placed before the sentencing court.
  • Treating the multiplicity of criminal acts as an aggravating factor is an error where that multiplicity is already inherent in the nature of the offences charged.
  • A strong subjective case, including complete reparation, genuine remorse, and compelling personal circumstances, does not preclude a custodial sentence where the objective criminality is serious and involved a sustained breach of trust.
  • In dismissing the appeal, the Court confirmed that personal hardship contributing to offending operates in mitigation of penalty only, and does not diminish the requirement for sentences that reflect retribution, punishment, and deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 176A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Aubrey Watts v Regina [2007] NSWCCA 153
- R v Brillo (unreported, NSWCCA, 26 May 1997)
- R v Carr (2002) 135 A Crim R 171
- R v Egerton (unreported, NSWCCA, 8 August 1997)
- R v Giam (No 2) (1999) 109 A Crim R 348
- R v Houghton [2000] NSWCCA 62
- R v Jackson [2001] NSWCCA 355
- R v Martin [2005] NSWCCA 190
- R v Pearce (1998) 194 CLR 610
- R v Phelan (1993) 66 A Crim R 446
- R v Scott [2005] NSWCCA 152
- R v Tadrosse (2005) 65 NSWLR 740
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Wong [2001] NSWCCA 444