Commissioner for Fair Trading v TAUKEIAHO & Anor

Supreme Court of NSW|2005-07-13|Before: Rothman J

CITATION : Commissioner for Fair Trading v TAUKEIAHO & Anor [2005] NSWSC 722

DECISION : Tuilangi Taukeiaho; (a) The first defendant is guilty of a contravention of s.223 (2) of the Cooperatives Act 1992 in relation to which I impose the following sentence:; In relation to the offence being the contravention of s.223(2) of the Cooperatives Act 1992, I impose a term of imprisonment of 8 months, commencing on 20 July 2005 and concluding 19 March 2006, with a non-parole period of 4 months, the non-parole period to commence on 20 July 2005 and expire on 19 November 2005; (b) The first defendant is guilty of a contravention of s.221(2) of the Cooperatives Act 1992 in respect of which I impose the following sentence:; In relation to the offence under s.221(2) of the Cooperatives Act 1992 I sentence the first defendant to a term of imprisonment for 18 months commencing on 20 July 2005 and ending on 19 January 2007, with a non-parole period of nine months, the non-parole period to commence on 20 July 2005 and expire on 19 April 2006 at which date I direct that the prisoner be released on the usual conditions; (c) Under s.12 of the Crimes (Sentencing Procedure) Act 1999, I order that execution of each such sentence be suspended for the term of the sentence; (d) I direct that the prisoner be released from custody on condition that the prisoner enter into a good behaviour bond for the term of the sentence Conditions applying during the term of the bond are as follows; (i) Appeal before the court if called upon to do so at any time; (ii) To be of good behaviour; (iii) Advise the Registrar of the Court of any change of residential address; (iv) Report to the Office of the NSW Probation and Parole Service within 48 hours; (v) Accept the supervision of and obey all reasonable directions of the NSW Probation and Parole Service during the term of the bond; (vi) Attend for personal counselling as directed or recommended by any officer of the NSW Probation and Parole Service; (vii) Such other standard conditions as required by the NSW Probation and Parole Service; Haemasi Taukeiaho; (a) I find the offence of a contravention of s.222(1) of the Cooperatives Act 1999 proved but pursuant to the provisions of s.10(b) of the Crimes (Sentencing Procedure) Act 1999 and having regard to the circumstances outlined above, I am satisfied that it is expedient to release the second defendant on a good behaviour bond without proceeding to a conviction. Without proceeding to such a conviction, I order that the second defendant be released on a good behaviour bond for a period of six months from 20 July 2005; I order that the first defendant pay the costs of the Commissioner for Fair Trading, as agreed.

CATCHWORDS : Cooperatives Act - Offences of Officers - Improper use of position for advantage - Failure to act honestly - Falling below reasonable standards - Sentence

Cooperatives Act 1992 (s.221(1), s.222(1), s.223(2)) Criminal Procedure Act 1986 (Chapter 4, Part 5) LEGISLATION CITED : Coprorations Act (Part 2D.1) Crimes (Sentencing Procedure) Act 1999

O'Keefe v R (1992) ACrimR 201 R v Woodman [2001] NSWCCA 310 CASES CITED : Hawker [2001] NSWCCA 148 Pantano (1990) 49 ACrimR 328 El-Rashid, NSWCCA, 07.04.1995

Plaintiff - Commissioner for Fair Trading PARTIES : First Defendant - Tuilangi TAUKEIAHO Second Defendant - Haemasi TAUKEIAHO

GRIFFIN for Plaintiff COUNSEL : FOSTER for First Defendant HECKENBERG (Sol) for Second Defendant

D.I. Catt, Director Legal Services Division for Plaintiff SOLICITORS : Jonathan D'Arcy & Co for First Defendant Heckenberg Associates Solicitors for Second Defendant

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12885/2004 Commissioner for Fair Trading v Tuilangi TAUKEIAHO & Haemasi TAUKEIAHO

JUDGMENT 1 ROTHMAN J: The plaintiff (Commissioner for Fair Trading) (hereinafter the Commissioner) prosecutes the first and second defendants for offences under the Cooperatives Act 1992 (hereinafter the Act) and in particular prosecutes: the first defendant (Tuilangi Taukeiaho) for offences being a contravention of s.223(2) of the Act and of s.221(1) of the Act; and against the second defendant (Haemasi Taukeiaho) for an offence being a contravention of s.222(1) of the Act. 2 The proceedings are dealt with by this Court summarily under Part 5 of Chapter 4 of the Criminal Procedure Act 1986. 3 The offences with which the first defendant is charged relate to a requirement to act honestly in the exercise of powers and the discharge of their duties as an officer of the cooperative (s.221(1) of the Act) and the duty not to make improper use of a position as an officer for advantage or to cause detriment (s.223(2) of the Act). In relation to the second defendant the charge relates to a duty to exercise reasonable care and diligence. The duties imposed have equivalents in other legislation and, amongst others, in Part 2D.1 of the Corporations Act which creates both civil and criminal liability in relation to similar duties and imposes in relation to the civil duties a maximum penalty of $200,000 for individuals (and $1 million for corporations) and in relation to a criminal liability a maximum liability of $220,000 or five years' imprisonment or both. The provisions of the Cooperatives Act are: "221 Officers must act honestly (1) An officer of a cooperative must at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office, both in the State and elsewhere. (2) The penalty applicable to a contravention of this section is: (a) if the contravention was committed with intent to deceive or defraud the cooperative, members or creditors of the cooperative or creditors of any other person or for any other fraudulent purpose - 240 penalty units or imprisonment for 5 years or both, or (b) otherwise - 60 penalty units. 222 Standard of care and diligence required (1) In the exercise of his or her powers and the discharge of his or her duties, an officer of a cooperative must exercise the degree of care and diligence that a reasonable person in a like position in a cooperative would exercise in the cooperative's circumstances. maximum penalty: 20 penalty units (2) An officer is not liable to be convicted of a contravention of this section if the cooperative has resolved, by ordinary resolution, to forgive the contravention. 223 Improper use of information or position … (2) An officer or employee of a cooperative … must not make improper use of his or her position as an officer or employee or member, to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the cooperative. (3) The penalty applicable to a contravention of this section is: (a) If the contravention was committed with intent to deceive or defraud the cooperative, members or creditors of the cooperative or creditors of any other person or for any other fraudulent purpose - a penalty not exceeding 240 penalty units or imprisonment for 2 years or both, or; (b) in any other case - a penalty not exceeding 60 penalty units." 4 Each of the defendants pleaded guilty to the offences charged and, at the earliest possible time, cooperated with the Commissioner and those investigating the offences. 5 The parties tendered an Statement of Agreed Facts and otherwise adduced material in the form of two affidavits adduced by the Commissioner, one being from a financial analyst, Robert Smith, and the other from a further financial analyst, Robert Hayes, each sworn on 3 December 2004. Evidence was adduced by the Commissioner being documentary material tendered through other witnesses. 6 The defendants adduced evidence. The second defendant filed and served an affidavit of the second defendant sworn 9 July 2005 and character references. The first defendant was called by her Counsel as was a psychologist who had compiled a short report in relation to the situation of the first defendant. I also had available a pre-sentence report from the probation and parole service dated 13 July 2005 in relation to the first defendant. 7 The Statement of Agreed Facts relevantly state: "1. Background 1.1 The Good Christian Housing Cooperative, (Cooperative), was registered under the Cooperatives Act 1992 (the Act) on 11 March 1997. 1.2 The Cooperative was formed to provide affordable and secure housing to members of the Tongan community mainly in the inner west area of Sydney. 1.3 The Cooperative leased six (6) properties from the NSW Land and Housing Cooperation. The functions of this Corporation are now managed by the Office of Community Housing (OCH). 1.4 The terms and conditions of the original leases were that the Cooperative paid a one dollar ($1.00) per annum rental and was responsible for the management and maintenance of the properties. 1.5 Tenants had to be members of the Cooperative, pursuant to the Cooperative's rules. In addition the majority of the tenants also had to be eligible for housing under the guidelines set down for occupation of public housing as required under the terms of the lease from OCH. The leases were for a term of five years commencing at various times between July 1996 and January 1997 with an option to renew for a further five years.

Management of the Cooperative 2.1 The rules of the Cooperative specify that it is to be managed by a board of five directors. 2.2 Tuilangi Taukeiaho was a Director and the Secretary of the Cooperative from its formation. She appears as a Director on the documents relating to the financial year ended 30 June 2000 which were lodged with the Registry of Cooperatives & Associations in March 2001. 2.3 Haemasi Taukeiaho was appointed a Director of the Cooperative on 7 October 1998 and ceased to be a Director on 23 July 2003. 2.4 The Cooperative came under the adverse notice of the Registry in late 2001 due to its failure to lodge required documentation within stipulated time periods. From this time the record keeping and the lodgement of documents was virtually non-existent until the Cooperative lodged outstanding Annual Returns from the years ending 30 June 2001 to 30 June 2004 on 15 November 2004. 2.5 These returns record that Tuilangi Taukeiaho ceased as a Director of the Cooperative on 23 July 2003.

The Investigation 3.1 Officers of the Registry of Cooperatives attended to inspect the Cooperative's records in June 2003. It appeared at that time that a large amount of the cooperative's funds had been misappropriated by Tuilangi Taukeiaho. 3.2 Tuilangi Taukeiaho made admissions in a Record of Interview on 29 August 2003. 3.3 Haemasi Taukeiaho made admissions in a Record of Interview on 4 February 2004.

Basis for Prosecution 4.1 Tuilangi Taukeiaho, as a Director and the Secretary of the Cooperative drew a series of cheques upon the cooperative's bank account and used the funds, or directed the funds to her own purposes. The records obtained indicated that this activity commenced in January 2001 and continued until May 2003. 4.2 She was aided in this activity, on most occasions, by her son, Haemasi Taukeiaho. In his capacity as a Director he provided a countersignature to the cheques at her request. The method for providing the countersignature was that Tuilangi Taukeiaho would ask her son to sign a series of blank cheques to enable her to pay the accounts of the Cooperative as and when payment was due. He obliged by signing a large number of blank cheques. On one occasion he signed a whole book of blank cheques. 4.3 Usually, Tuilangi Taukeiaho cashed these cheques at the Marrickville Branch of the Commonwealth Bank. 4.4 The value of the cheques cashed by Tuilangi Taukeiaho that are referable to the charges is One Hundred and Three Thousand, Seven Hundred and Five Dollars, ($103,705.00). 4.5 In respect to Haemasi Taukeiaho, there are full admissions in a Record of Interview on 4 February 2004 with Officers of the Registry, that he signed each of the relevant cheques with the exception of eight cheques that were signed by another person. It appears, from the available evidence that he did not receive any of the proceeds of the cheques that he signed. 4.6 It appears that he signed the cheques because his mother asked him to do so. He made no other enquiry to ascertain whether the cheques he signed were for a legitimate purpose of the Cooperative." Nature of Offences 8 As previously stated, the offences under the Cooperatives Act have counterparts in other legislation and the seriousness of the circumstances of the particular offences before the Court in this matter ought not to be underestimated. The circumstances of the offences committed by the first defendant can be likened to offences in the nature of those committed by employees and officers in employment. 9 The Court of Criminal Appeal in O'Keefe v R (1992) 68 ACrimR 201 at 204 said: "It is of the utmost importance that employers carrying on business and entrusting members of their staff with control of money as must be done, should be entitled to maximum honesty in that activity and the courts play an important role and must play an important role in imposing sentences in cases of this nature - which are often called white collar crimes - which will operate effectively as a deterrent to others … ." 10 In other contexts the CCA has expressed similar views. In R v Woodman [2001] NSWCCA 310, Wood CJ at CL cited with approval the judgments of the CCA in Hawker [2001] NSWCCA 148, Pantano (1990) 49 ACrimR 328, El-Rashid, NSWCCA, 07.04.1995, and other cases cited at [2001] NSWCCA 310 at [24] to [28]. As Gleeson CJ said in El-Rashid: "Considerations of general deterrence are of particular importance in sentencing for crimes of this nature. Such crimes frequently involve … a serious breach of trust. Such breaches of trust are usually able to be committed because of the previous good character of the person who has been placed in a position of trust." 11 While the above quotes apply to employers and the trust that is and must be bestowed upon employees, it is equally applicable to persons in control of organisations, especially organisations which seek to perform charitable work or work of a social benefit in society. 12 The legislature has imposed significant penalties in relation to these matters and they are matters which are serious. The amount of money involved in the dishonest activity by the first defendant is significant and there is a necessity to take account of the general deterrent that must necessarily be imposed in offences of this kind. The First Defendant 13 The first defendant was a person in a particular and special position of trust and authority in relation to the cooperative. 14 This latter issue, namely the position of trust and authority enjoyed by the first defendant, is a two edged sword in terms of its effect on any sentence that may be imposed. I take into account, in that regard, that the very existence of the cooperative and the social benefits that have been achieved for the Tongan community have largely been achieved by the single efforts of the first defendant whose idea this was and who organised all of the administrative tasks associated with the establishment and running of the cooperative. Indeed, the cooperative utilised the premises of the first defendant as its office which, no doubt, was an exacerbating feature for the first defendant in the temptation to utilise the money of the cooperative in dealing with her gambling habits. 15 I have already mentioned the fact that the first defendant pleaded guilty at the earliest possible time and there can be little doubt that her open cooperation with the investigating officers and disclosure of all that was within her knowledge and possession obviated significant costs of ensuring compliance with the Act and prosecuting the offences. I allow a discount of 25% for the early guilty plea. 16 Further to those matters is the fact that the offence itself has, ultimately, caused no loss to the victim and the first defendant, by borrowing from her family, has made full reparation of the monies taken by her. 17 It should be said that the criminal activity of the first defendant was not in the least bit sophisticated and resulted, clearly, from her gambling habit occasioned by her depressive state. There is material before me that the first defendant was (and may still be) addicted to gambling deriving from chronic depression. The evidence as to the gambling addiction is the evidence of the psychologist, Mr Hilder. Unfortunately his opinion is arrived out in circumstances where there has been not as thorough an investigation and counselling session as one would have hoped. What is clear, is that the history of the first defendant is one which has clearly led to her gambling. 18 The first defendant came from Tonga in 1973 at 23 years of age. She married within a year and has had six children by that marriage, each of whom have achieved at a high level in studies and employment. The marriage, however, was not a happy one and the first defendant and her husband separated on several occasions and permanently in 1996. The first defendant currently is a full time carer for her 80 year old invalid mother and the youngest of her six children still lives at home. 19 Having seen the first defendant in the witness box and having heard the evidence she gave, there can be no doubt that she is an offender who is totally distraught by the fact that she has offended in this way and even more so because she has breached the trust of her community and her friends. Her offence has meant that her children have been required to borrow money, in their names, in order to repay the amount that their mother has wasted in gambling. 20 Having said that, I am not prepared to accept that the first defendant is "addicted" to gambling on the basis of the material that is before me. There is no doubt that her gambling was occasioned by her depressive state, but that is quite a different issue. The pre-sentencing report refers to the offender claiming no mental health issues, but nevertheless suggests that she is one who presents as "suffering from depression". The first defendant was, at least at the time of the pre-sentence report being compiled, adamant that she would not attend personal counselling. 21 There are a number of physical health issues which the offender faces, including asthma, arthritis and she has a chronic partial disability associated with those conditions. 22 The issue of the criminal activity is one in which the first defendant has not gained the benefit from the criminal activity in question and the monies taken were wholly expended in gambling. She is a pensioner who is in receipt of $650.00 per fortnight and pays $200.00 per fortnight in rent. She is otherwise totally impecunious. 23 The first defendant has no prior record and I have little concern that there would be a great need for specific deterrence. If the first defendant were to offend again it would be far more likely to be because she has, once more, turned to gambling for the purpose of relieving her depression. 24 In white collar crime, the question of good character is not a matter that usually influences the court greatly. This is because, in most white collar crime, it is relatively easier for the person charged to show circumstances that, but for the offences, would amount to good character. However, in this matter, the question of good character is a matter that I do use to the benefit of the first defendant in mitigation of her sentence. I do so because the first defendant is a person without the usual trappings associated with white collar crime who has, as earlier mentioned, undertaken work of a social benefit to the whole of the Australian community and in particular to the Tongan community and has otherwise disclosed an exemplary record of achievement as a resident of this country. 25 Further consideration of a subjective kind is the prospect that, under appropriate supervision, the underlying causes of this criminal conduct can be overcome and the depression of the first defendant can be dealt with, thereby promoting rehabilitation and obviating any recurrence of the criminal conduct. 26 The most difficult aspect, as is usually the case, is balancing a proper statement of the Court's denunciation of the serious nature of the crime and the necessity to provide a general deterrent to this kind of criminal conduct, on the one hand, and, on the other hand, the overwhelming view that this conduct is in every sense aberrant, caused more by factors beyond the control of the first defendant than by any deliberate criminal intent and the prospects for rehabilitation. 27 There are certainly special circumstances which would warrant a departure from the provisions of s.44 of the Crimes (Sentencing Procedure) Act 1999 for providing a non-parole period significantly less than three-quarters of the total sentence, assuming that a custodial sentence is appropriate. 28 I turn then to the sentence to be imposed on the first defendant. As already indicated, the charges to which the first defendant have pleaded carry maximum sentences: in the case of the contravention of s.223(2) of a fine of $26,400 or imprisonment for two years or both; in the case of the contravention of s.221(1), a maximum penalty of $26,400 or imprisonment for five years or both. 29 The offences under s.223(2) and under s.221(1) arise, essentially, out of the course of one conduct and it may be said that the improper use of the position of the first defendant by the first defendant to gain an advantage for herself was, in and of itself, the lack of honest act to which s.221 refers. Nevertheless, the offences occur over a significant period of time and there was indeed more than one act of dishonesty, however described. 30 The pre-sentence report makes clear that the first defendant is not suitable for a community service order. However, she is suitable for supervision, on the provision that she attend personal counselling. 31 In the circumstance of impecuniosity, a fine is inappropriate and a non-custodial sentence does not adequately deal with the seriousness of the issues associated with the criminal activity in which the first defendant has been involved. 32 In the circumstances, I intend to impose the following sentences on the first defendant: (1) In relation to the offence being the contravention of s.223(2) of the Cooperatives Act 1992 , I impose a term of imprisonment of 8 months, commencing on 20 July 2005 and concluding 19 March 2006, with a non-parole period of 4 months, the non-parole period to commence on 20 July 2005 and expire on 19 November 2005. (2) In relation to the offence under s.221(2) of the Cooperatives Act 1992 I sentence the first defendant to a term of imprisonment for 18 months commencing on 20 July 2005 and ending on 19 January 2007, with a non-parole period of nine months, the non-parole period to commence on 20 July 2005 and expire on 19 April 2006 at which date I direct that the prisoner be released on the usual conditions. (3) Under s.12 of the Crimes (Sentencing Procedure) Act 1999 , I order that execution of each such sentence be suspended for the term of the sentence.

(4) I direct that the prisoner be released from custody on condition that the prisoner enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond are as follows: (a) Appeal before the court if called upon to do so at any time; (b) To be of good behaviour; (c) Advise the Registrar of the Court of any change of residential address; (d) Report to the Office of the NSW Probation and Parole Service within 48 hours; (e) Accept the supervision of and obey all reasonable directions of the NSW Probation and Parole Service during the term of the bond; (f) Attend for personal counselling as directed or recommended by any officer of the NSW Probation and Parole Service; (g) Such other standard conditions as required by the NSW Probation and Parole Service. The Second Defendant 33 All of the matters associated with the circumstances of the crime are, to the extent relevant, matters that go to the benefit of the second defendant. I also allow in the case of the second defendant the benefit of an early guilty plea and assess the benefit at 25%. 34 It is fair to say that the second defendant while acting in a manner which is caught by the provisions of s.222 of the Act, has relied upon the honesty of the first defendant and signed blank cheques which, he understood, were to be completed honestly. 35 The reliance upon the honesty of the first defendant was not necessarily wholly misplaced, even though it falls short of the reasonable care and diligence that ought to be shown by a person in his position. It ought to be remembered, that in this case, the first defendant is the mother of the second defendant. Even apart from that relationship, it would not be surprising to see another officer in the same position as the second defendant making the same mistake. After all, the first defendant was the person who established and conducted the whole of the cooperative for the benefit of others. It would be seen by most, in those circumstances, as out of character for the first defendant to have done what she has done and there would be an understandable trust in the first defendant by others. There was certainly a reliance upon the first defendant in the carrying on of the cooperative for the mutual benefit of all. There can be little doubt that, but for the dishonest conduct of the first defendant, no charges would ever have been laid against the second defendant. His conduct was not, in any way, dishonest. It did, however, fall below the degree of care and diligence that should be expected of a person who has the responsibility of signing cheques for an organisation of this kind. 36 A maximum penalty for the offence under s.222(1) to which the second defendant has pleaded guilty is an amount of $2,200.00. 37 The second defendant is a person of excellent character with no criminal history. As already mentioned, the offence involves no dishonesty and, ultimately, no person suffered as a result of it. There are a number of extenuating circumstances to which reference has already been made. The Court also has regard to the fact that, in situations of significant trust, as would have been the situation with the first defendant, a number of persons in a similar situation to the second defendant would have conducted themselves in the same way. That does not mean that the matter does not fall below the standard set by the sub-section, nor does it absolve the criminal conduct, but it does ameliorate the criminality involved in the matters. The second defendant has learnt a salutary lesson. 38 In the circumstances, I do not feel a custodial sentence is warranted, nor do I feel, in these particular circumstances, that the second defendant should suffer the opprobrium of having a criminal conviction against his name. I find the offence proved, but pursuant to the provisions of s.10(b) of the Crimes (Sentencing Procedure) Act 1999 and having regard to the circumstances outlined above, I am satisfied that it is expedient to release the second defendant on a good behaviour bond without proceeding to a conviction. Without proceeding to such a conviction, I order that the second defendant be released on a good behaviour bond for a period of six months from 20 July 2005.

Orders 39 Tuilangi Taukeiaho (a) The first defendant is guilty of a contravention of s.223 (2) of the Cooperatives Act 1992 in relation to which I impose the following sentence: In relation to the offence being the contravention of s.223(2) of the Cooperatives Act 1992 , I impose a term of imprisonment of 8 months, commencing on 20 July 2005 and concluding 19 March 2006, with a non-parole period of 4 months, the non-parole period to commence on 20 July 2005 and expire on 19 November 2005.

(b) The first defendant is guilty of a contravention of s.221(2) of the Cooperatives Act 1992 in respect of which I impose the following sentence: In relation to the offence under s.221(2) of the Cooperatives Act 1992 I sentence the first defendant to a term of imprisonment for 18 months commencing on 20 July 2005 and ending on 19 January 2007, with a non-parole period of nine months, the non-parole period to commence on 20 July 2005 and expire on 19 April 2006 at which date I direct that the prisoner be released on the usual conditions.

(c) Under s.12 of the Crimes (Sentencing Procedure) Act 1999 , I order that execution of each such sentence be suspended for the term of the sentence.

(d) I direct that the prisoner be released from custody on condition that the prisoner enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond are as follows: (i) Appeal before the court if called upon to do so at any time; (ii) To be of good behaviour; (iii) Advise the Registrar of the Court of any change of residential address; (iv) Report to the Office of the NSW Probation and Parole Service within 48 hours; (v) Accept the supervision of and obey all reasonable directions of the NSW Probation and Parole Service during the term of the bond; (vi) Attend for personal counselling as directed or recommended by any officer of the NSW Probation and Parole Service; (vii) Such other standard conditions as required by the NSW Probation and Parole Service.

40 Haemasi Taukeiaho (a) I find the offence of a contravention of s.222(1) of the Cooperatives Act 1999 proved but pursuant to the provisions of s.10(b) of the Crimes (Sentencing Procedure) Act 1999 and having regard to the circumstances outlined above, I am satisfied that it is expedient to release the second defendant on a good behaviour bond without proceeding to a conviction. Without proceeding to such a conviction, I order that the second defendant be released on a good behaviour bond for a period of six months from 20 July 2005. 41 I order that the first defendant pay the costs of the Commissioner for Fair Trading, as agreed.

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At a glance

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Judgment (21 paragraphs)

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Cases Cited (2)