Regina v Tripodina

Court of Criminal Appeal (NSW)|2001-04-09|Before: Dowd J, Smart AJ, Doctor J

The Applicant's Disclosure of Criminality 19 The applicant relied upon his consulting his family's solicitor before he was aware that the police were involved. It was submitted that this disclosed a recognition by the applicant of his own wrongdoing. Reliance was also placed on the applicant stopping or virtually stopping gambling and seeking treatment. The applicant knew, when he signed each cheque, that he was committing an offence and that he was behaving criminally. After he left the defrauded company his supply of funds to gamble abated. He did not go to the police. He was obviously hoping to reach a commercial settlement.

20 In my opinion, the applicant's disclosure of criminality to his solicitors deserves little weight and it is certainly not a reason, either alone or in conjunction, with other reasons to intervene.

Undue Emphasis on Adverse Features 22 Counsel for the applicant drew attention to some of the remarks made by the judge. In particular, his description of the applicant's conduct as "callous and contemptuous", "gross criminal behaviour", and the need for a sentence to "appease the community's abhorrence to this type of criminal behaviour". The descriptions of which complaint is made are strong. The applicant's conduct had little regard for the welfare of the company which employed him. It was criminal behaviour of a very serious kind. The description "gross criminal behaviour", while strong, is not entirely inappropriate particularly in the context in which it was made. Again, the clause "appease the community's abhorrence to this type of criminal behaviour" is a strong one, but the community does have a distinct distaste, if not abhorrence, of this type of criminal conduct.

23 This complaint would not warrant this Court intervening

Gambling 24 The applicant submitted that this was not a case where there was some general assertion of gambling. Records were produced substantiating that the applicant was a compulsive gambler and had spent large amounts of money. The records disclose that a total of some $285,000 was spent at the Sydney Casino alone. The applicant also visited casinos in the Australian Capital Territory and at Surfers Paradise. The materials available to this Court substantiate the applicant's claim that he gambled a great deal and lost large sums.

25 The judge expressly took into account the applicant's pathological gambling problem. He adverted to the reports of Doctor Parmegiani and Doctor Jolly and that from St Vincent's Hospital that the applicant had, since September 2000, been undergoing treatment at that centre to help alleviate the problem. It cannot be said that the judge failed to give weight to this aspect of the applicant's case.

Cumulative and Concurrent Sentences 26 Complaint was made the judge had accumulated the sentences in this case. Counsel submitted that all the offences were of the same type against the same victim and committed for the same purpose and by the same method. It was submitted that although the illegal conduct continued for some years, it was essentially the one offence. Cumulative sentences are appropriate where the imposition of concurrent sentences would not adequately reflect the criminality involved. This was decided in R V Wilkins (1988), 38 A Crim R 445 per Lee CJ at CL at 450 and Carruthers J at 451. In R V Pantano , (1990) 49 A Crim R 338, R V Hawkins (1989) 45 A Crim R 430, R V O'Neill (unrep. CCA 24 July 1996) and R V McKechnie , (unrep. CCA 1 October 1987) cumulative sentences were imposed. This Court and courts of first instance commonly impose cumulative sentences when there are many offences against S 178BA of the Crimes Act and where to impose the maximum penalty for each offence and make all the sentences concurrent would represent inadequate punishment. The offences occurred over a long period and cannot be treated as one episode of criminality. The challenge to the judge's exercise of discretion in making the sentences cumulative must be rejected.

The Applicant's Strong Subjective Case is not Reflected in the Sentence 27 It was emphasised that the applicant had a strong subjective case. That was not contested and the judge so found. He had no prior convictions. He had taken steps to overcome or deal with his gambling addiction. He had a long record of gainful employment and had worked long hours and had coped with difficult family problems and situations. Even after his release on bail he had continued to work. He had struggled hard to make a life for himself. All this is rightly said but one has to come back, to the gravity of the present offences. They were, as has been emphasised, committed over a long period of time. They involved significant breaches of trust and the amounts of money involved were substantial. I do not think this ground is made out.

Payment of Compensation 28 I regard the payment of compensation as an important factor. The judge proceeded on the basis that that compensation would probably be paid. It was hoped at the time of sentencing that it would be somewhat greater than it has turned out to be, but that is not a matter for which the applicant can be criticised. What does appear is that for some considerable time it was his intention to pay such compensation as he could, albeit that the payment of compensation would still leave a substantial amount unpaid.

29 The sentence imposed is at the top of the permissible range. No error has been demonstrated which would entitle this Court to intervene.

30 Accordingly, I would grant leave to appeal but dismiss the appeal.

31 DOWD J : I agree and the orders of the Court will therefore be as proposed by Smart AJ. ********

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CITATION : Regina v Tripodina [2001] NSWCCA 136 revised - 17/04/2001 FILE NUMBER(S) : CCA 60716/00 HEARING DATE(S) : 9 April 2001 JUDGMENT DATE : 9 April 2001

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