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Court of Criminal Appeal 16 February 2011

Haropula v R

[2011] NSWCCA 57

Fraud & dishonesty
CRIMINAL SENTENCE APPEAL FRAUD MANIFEST EXCESS REPAYMENT OF MONIES APPEAL DISMISSED.

Citation: Haropula v R [2011] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 16 February 2011
Judge(s): McClellan CJ at CL, Johnson J, McCallum J

Background

The appellant was the financial manager of the Lismore Neighbourhood Centre, a community organisation. Between August 2006 and October 2009, he systematically defrauded the Centre of $67,050.36 across 64 separate dishonest acts, contrary to s 173 of the Crimes Act 1900 (NSW), which prohibits an officer of a body corporate from taking the organisation's funds for personal benefit. None of the money was repaid.

The appellant had a prior record of fraud convictions in Queensland, including sentences imposed in 2004 and again in December 2009 for credit card offences committed while on bail for the present charges. At sentencing, he claimed that a substantial portion of the stolen funds had been given to assist a bereaved family, the Renagis, whose circumstances had deteriorated following the death of the father.

The sentencing judge imposed 4 years and 6 months imprisonment with a non-parole period of 3 years on the principal count, with two concurrent fixed terms of 3 years on the remaining counts. A 25% discount was applied for the guilty plea and special circumstances were found based on family hardship. The appellant sought leave to appeal on three grounds.

  • Whether the sentencing judge gave adequate weight to the appellant's psychological history and mental state when assessing his level of criminality.
  • Whether the finding that the money paid to the Renagi family did not approach half the total amount defrauded was open on the evidence.
  • Whether the total sentence of 4 years and 6 months imprisonment was manifestly excessive in all the circumstances.

Decision

Ground 1: Psychological history. A psychologist's report, obtained from Queensland authorities and tendered by the Crown, diagnosed the appellant with a mood disorder with psychotic features and referenced communications with an imaginary person called "Russ." However, when the appellant gave evidence at the sentencing hearing, he did not confirm the history he had given to the psychologist. Instead, he described the person who prompted his Queensland offences as a real colleague, not a fictitious one. The sentencing judge expressed clear reservations about the reliability of the report and placed little weight on it. The Court of Criminal Appeal found this approach was entirely justified and that the ground had no foundation.

Ground 2: The Renagi family payments. The appellant gave inconsistent evidence about how much of the stolen funds went to the Renagi family, initially claiming around $40,000 in chief, then suggesting as much as $56,000 under cross-examination. The proceedings were adjourned to allow Mrs Renagi to give evidence. That evidence indicated the family's total relevant education expenses were $25,490, with only $4,562 paid during the period of the fraud. Defence counsel at sentencing accepted there were difficulties in establishing the extent of any payments. The Court found the sentencing judge's scepticism was clearly open and correct on the evidence.

Ground 3: Manifest excess. The Court rejected the submission that charging three separate counts had artificially inflated the sentence, noting each count related to a distinct account accessed for fraudulent purposes and that the sentences on counts 2 and 3 were made wholly concurrent. The amount taken was substantial, the conduct spanned 14 months through repeated acts, and the appellant had prior convictions for dishonesty. Both personal and general deterrence required substantial weight. The sentencing judge had already recognised family hardship through a special circumstances finding and an adjusted non-parole period. The Court was not persuaded the sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is entitled to place little or no weight on a psychological report where the offender's own evidence at the sentencing hearing is inconsistent with the history provided to the psychologist.
  • Where an offender claims to have applied misappropriated funds for a benevolent purpose, the sentencing court may reject that claim if the evidence is internally inconsistent and not supported by independent evidence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that charging an offender with multiple counts reflecting distinct fraudulent acts is a legitimate exercise of prosecutorial discretion, particularly where sentences are structured to run concurrently.
  • Repeated dishonesty directed at a community organisation, by a person in a position of financial trust with prior fraud convictions, attracts significant weight to both personal and general deterrence at sentencing.
  • A finding that family hardship does not reach the level of "exceptional" remains open to a sentencing judge even where a spouse has health difficulties and a child has disabilities; recognition of those circumstances through a special circumstances finding may be the appropriate, proportionate response.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 173 (officer of a body corporate taking funds for personal benefit; maximum penalty 10 years imprisonment)

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