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10
Court of Criminal Appeal 15 August 2001

R v Woodman [2001] NSWCCA 310 revised - 14

[2001] NSWCCA 310

Fraud & dishonesty
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE OFFENCE OF DISHONESTY WHETHER SENTENCE OUTSIDE RANGE BREACH OF TRUST

Citation: R v Woodman [2001] NSWCCA 310 revised - 14/09/2001
Court: NSW Court of Criminal Appeal
Date: 15 August 2001
Judge(s): Wood CJ at CL; Sperling J

Background

The appellant was a self-employed real estate agent who, over a four-year period between 1994 and 1998, fraudulently misappropriated rental bond monies and a purchaser's deposit totalling $62,231.83. The offences involved omitting to account for funds received on behalf of clients and converting those funds to his own use, apparently to meet the debts of an unsuccessful business. He was charged under the Property Stock & Business Agents Act 1941 and the Crimes Act 1900.

The appellant pleaded guilty at the earliest opportunity and was sentenced by Nield DCJ in the District Court. He received a principal sentence of three years and nine months imprisonment with a non-parole period of one year and three months, along with concurrent fixed terms on the remaining counts. A compensation order was also made for the full amount involved, payable to the Department of Fair Trading, which had already reimbursed the victims.

The appellant sought leave to appeal against those sentences in the Court of Criminal Appeal, arguing the sentence was outside the appropriate range and that insufficient weight had been given to his offer to make reparations.

  • Whether the sentence imposed was outside the range appropriate for offences of this character
  • Whether the sentencing judge gave insufficient weight to the appellant's offer to make reparations
  • Whether statistics about sentences for similar offences provided a reliable basis for comparison
  • Whether special circumstances existed that justified a lesser custodial term or a non-custodial sentence

Decision

The Court of Criminal Appeal dismissed both substantive grounds of appeal, finding no error in the sentencing judge's approach. On the question of range, the Court found that statistical comparisons were of limited value because such data often fails to account for the many variables affecting individual sentences. The Court was satisfied that the sentence reflected the seriousness of the offending, the extended period over which it occurred, and the significant breach of trust inherent in a real estate agent misappropriating clients' funds.

On general deterrence, the Court affirmed that persons in positions of trust who handle clients' money must understand that breaching that trust will attract meaningful custodial penalties. The sentencing judge's emphasis on general deterrence was expressly endorsed.

Regarding reparations, the Court rejected the argument that the offer to repay at $200 per week should have resulted in a reduced or non-custodial sentence. The Court noted that the offer was made for the first time at the sentencing hearing, after no earlier attempt at repayment, and that the explanation offered for the delay was unconvincing. The Court also confirmed the principle, drawing from existing authority, that repayment of misappropriated funds does little more than return proceeds to which the offender had no entitlement in the first place. A compensation order had already been made in any event.

The Court noted that the sentencing judge's finding of special circumstances appeared unduly favourable to the appellant given his stable circumstances and low risk of reoffending, but since that finding operated in the appellant's favour and had not been the subject of a Crown appeal, it did not affect the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conviction for fraud involving breach of trust by a real estate agent will attract significant weight to general deterrence in sentencing, given the fundamental reliance clients place on agents handling their money.
  • Statistical data about sentences for similar offences carries limited value on appeal where individual circumstances vary substantially across cases.
  • Under established sentencing principles, an offer to repay misappropriated funds does not readily operate as a meaningful mitigating factor where the repayment merely restores funds to which the offender had no entitlement, particularly where a compensation order has already been made.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an offender's late offer of reparations, made for the first time at the sentencing hearing with no earlier steps taken, carries reduced mitigating weight.
  • No error was established in the sentencing judge's approach to totality, special circumstances, or the weight given to the appellant's personal circumstances and early guilty plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178A
- Property Stock & Business Agents Act 1941 (NSW), ss 88(a)(i), 88(b)(i)

Cases:
- Phelan (1993) 66 A Crim R 446 (Hunt CJ at CL), cited for the principle that irretrievable loss is an aggravating factor, while making good a loss is not strongly mitigating