Siwek v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J.

2. [2]

   ADAMSON J: I agree with Bellew J.

3. [3]

   BELLEW J: John Siwek (“the applicant”) pleaded guilty before the Local Court to the following offences:

   1. (1)

      Between 12:00pm on 1 September 2012 and 12:00pm on 22 June 2013 at North Sydney, did, by deception, that is, by direct (sic), without authority, the payroll company Talent 2 to transfer funds into his personal Commonwealth Bank account, dishonestly obtain a financial advantage / cause a financial disadvantage, to wit, $15,525.82 from Ebsco Industries (Crimes Act 1900 s. 192E(1)(b)).

   2. (2)

      Between 12:00pm on 20 July 2013 and 12:00pm on 3 August 2013 at North Sydney did, by deception, that is, by direct (sic), without authority, the payroll company Talent 2 to transfer funds into his personal Commonwealth Bank Account, dishonestly obtain a financial advantage / cause a financial disadvantage, to wit $6,008.75 from Ebsco Industries (Crimes Act 1900 s. 192E(1)(b)).

   3. (3)

      Between 12:00pm on 15 April 2005 and 2:00pm on 23 November 2006 at North Sydney did dishonestly obtain for persons unknown money, to wit $170,376.11, by deception, namely transferring money from the bank account of Ebsco into an unknown bank account without authorisation from Ebsco management (Crimes Act 1900 s. 178BA(1)).

   4. (4)

      Between 12:00pm on 28 November 2006 and 2:00pm on 31 December 2007 North Sydney did dishonestly obtain for the said John Siwek money, to wit $256,408.50, by deception, namely transferring money from the bank account of EBSCO into his personal bank account without authorisation from EBSCO management (Crimes Act 1900 s. 178BA(1)).

   5. (5)

      Between 12:00pm on 2 January 2008 and 2:00pm on 21 December 2008 at North Sydney did dishonestly obtain for the said John Siwek money, to wit $269,370.30 by deception, namely transferring money from the bank account of Ebsco into his person bank account without authorisation from EBSCO management (Crimes Act 1900 s. 178BA(1)).

   6. (6)

      Between 12:00pm on 9 January 2009 and 2:00pm on 15 February 2010 at North Sydney did dishonestly obtain for the said John Siwek money to wit $314,198.36, by deception, namely transferring money from the bank account of EBSCO into his personal bank account without authorisation from EBSCO management (Crimes Act 1900 s. 178BA(1)).

   7. (7)

      Between 12:00pm on 25 February 2010 and 2:00pm on 29 December 2010 at North Sydney did by deception, that is, by transferring money from the bank account of EBSCO into his personal bank account without authorisation from EBSCO management, dishonestly obtain a financial advantage, to wit $257,037.21 (Crimes Act 1900 s. 192E(1)(b)).

   8. (8)

      Between 12:00pm on 14 January 2011 and 2:00pm on 29 December 2011 at North Sydney did by deception, that is, by transferring money from the bank account of EBSCO into his personal bank account without authorisation from EBSCO management dishonestly obtain a financial advantage, to wit $240,503.57 (Crimes Act 1900 s. 192E(1)(b)).

   9. (9)

      Between 12:00pm on 3 January 2012 and 2:00pm on 17 August 2012 at North Sydney did by deception, that is, by transferring money from the bank account of EBSCO into his personal bank account without authorisation from EBSCO management, dishonestly obtain a financial advantage, to wit $186,588.07 (Crimes Act 1900 s. 192E(1)(b)).

4. [4]

   The applicant adhered to those pleas when he appeared before the District Court, and asked the sentencing judge to take into account three further matters contained on a Form 1, namely:

5. [5]

   On 12 February 2016, his Honour Judge Woods QC imposed an aggregate non-parole period of 3 years and 8 months imprisonment commencing on 12 February 2016 and expiring on 11 October 2019, with an additional term of 2 years and 4 months imprisonment, commencing on 12 October 2019 and expiring on 11 February 2022.

6. [6]

   The applicant, who appeared on his own behalf before this Court, seeks leave to appeal against that sentence on grounds expressed in the following terms:

   1. (1)

      The sentence is demonstratively too long.

   2. (2)

      The sentencing judge erred in not allowing any sentence discount for monies re-paid.

   3. (3)

      The sentencing judge erred by not allowing any sentence discount for gambling addiction.

   4. (4)

      The legislation for the maximum 5 years and 10 years was not intended for the circumstance of the offence.

THE FACTS

1. [7]

   The sentencing judge found the facts to be as follows (commencing at ROS 1):

THE GROUNDS OF APPEAL

1. [8]

   Grounds 1 and 4 assert, in effect, that the sentence is manifestly excessive. In those circumstances it is appropriate to deal firstly with Grounds 2 and 3, each of which assert a specific error on the part of the sentencing judge.

The findings of the sentencing judge

1. [9]

   As set out at [7] above, his Honour made reference to the fact that of the approximately $1.7 million obtained by the applicant as a consequence of his offending, he had re-paid an amount of $450,000.00, and that a settlement had been reached pursuant to which he was released from any further civil liability. However as his Honour pointed out, that still left an amount in excess of $1 million which was not re-paid. His Honour then said (at ROS 5):

Submissions of the applicant

1. [10]

   In written submissions, the applicant appeared to accept that the remarks of the sentencing judge set out at [9] above indicated that he had taken the partial repayment of the money into account. However, he submitted that the sentencing judge had erred by not specifically discounting the sentence to reflect that circumstance. Before this Court, the applicant submitted that the sentence imposed did not reflect his partial repayment of the monies he obtained. This submission tended to suggest that if the matter had been taken into account by the sentencing judge, it was not given sufficient weight.

2. [11]

   The applicant further submitted his repayment of a sum of $450,000.00 amounted to more than a “civil matter”, and that it demonstrated his contrition for committing the offences. In this regard, he emphasised that it had been open to him to use the money in question towards the payment of his legal fees, but that he had chosen to use it to repay his former employer.

Submissions of the Crown

1. [12]

   The Crown submitted that the sentencing judge was under no obligation to even indicate, much less apply, a specific discount to reflect the fact that he had taken into account the applicant’s partial repayment of the money he had obtained from his offending. It was submitted that such partial re-payment did not inevitably lead to a substantial reduction in sentence and that in any event, it was apparent that his Honour had taken into account this factor when reaching his determination.

Consideration

1. [13]

   In R v Weismantel [2016] NSWCCA 204 R A Hulme J (with whom Beazley P and R S Hulme AJ agreed) observed (at [17]):

2. [14]

   Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188 (to which his Honour referred) Simpson JA (with whom Hoeben CJ at CL and Price J agreed) observed (at 308; [76]-[77]):

3. [15]

   Not only was the sentencing judge not obliged to specify and apply a discount to reflect the applicant’s partial repayment of the monies, it would have been an error in approach for his Honour to have done so. Moreover, it is apparent from the sentencing remarks that his Honour took this factor into account as part of the applicant’s overall subjective case.

4. [16]

   It follows that this ground is not made out.

The evidence before the sentencing judge

1. [17]

   Before the sentencing judge was a report of Dr Olav Nielssen, Psychiatrist. The history provided by the applicant to Dr Nielssen included the following (at p. 2):

2. [18]

   The applicant gave evidence on sentence which was accepted by the sentencing judge and which was generally consistent with the history he gave to Dr Nielssen.

The findings of the sentencing judge

1. [19]

   The sentencing judge observed (at ROS 2) that the applicant had come under the influence of (inter alia) “an addiction to gambling in the form of a game called “craps” in which he indulged frequently at the Star Casino…” Later (at ROS 6) his Honour made reference to the evidence given by the applicant of a link between his alcohol and gambling addictions. His Honour found that as a consequence of the steps taken to address those matters, the applicant had strong prospects of rehabilitation.

Submissions of the applicant

1. [20]

   The applicant submitted that a gambling addiction was recognised as “a mental problem” and that his addiction had been causative, at least in part, of the offending. It was submitted that in these circumstances, it was an error on the part of the sentencing judge not to apply a specific discount to reflect that circumstance.

Submissions of the Crown

1. [21]

   The Crown submitted that it was clear that the sentencing judge had taken into account the applicant’s addiction to gambling as part of the overall subjective case. The Crown further submitted that in any event, it remained the case that the applicant had engaged in a significant fraud and that there was nothing in the report of Dr Nielssen to support a conclusion that the applicant suffered from any mental illness, much less that such illness was causative of his offending.

Consideration

1. [22]

   Generally speaking, the fact that offences are committed to feed a gambling addiction will not be a mitigating factor on sentence: Johnston v R [2017] NSWCCA 53 at [36] per Bathurst CJ (Johnson and Fagan JJ agreeing) and the authorities cited therein. Even if addiction to gambling explains a fall into serious criminal conduct, rarely can an offender seek mitigation of penalty based upon such an addiction, even when it is pathological: Johnston at [36] citing Assi v R [2006] NSWCCA 257 at [27] per Howie J (Tobias JA and Rothman J agreeing). It is been expressly held that such principles apply equally to cases of fraud to feed a gambling addiction: Johnston at [41] per Bathurst CJ.

2. [23]

   The sentencing judge found that the applicant’s efforts to overcome his gambling addiction were reflective of his favourable prospects of rehabilitation. That finding was open, and was favourable to the applicant. A finding to the effect of that propounded by the applicant would have been erroneous.

3. [24]

   In these circumstances, this ground is not made out.

Ground 4 – The legislation for the maximum 5 years and 10 years was not intended for the circumstances of the offence

1. [25]

   Each of these grounds effectively asserts that the sentence is manifestly excessive. It is therefore appropriate that they be dealt with together.

Submissions of the applicant

1. [26]

   The applicant submitted that the sentence imposed equated to 80% of the highest maximum penalty which was available, and that this was inconsistent with the favourable findings which had been made by the sentencing judge. He submitted that his offending did not fall towards the upper end of the scale, and that, in particular, there was an absence of “meticulous clever planning” in the form of (for example) the creation of a multiplicity of bank accounts. The applicant went so far as to categorise his offending as amounting to “a simple naïve transfer of monies from one company bank account to one bank account which (he) controlled”, and which involved no sophisticated planning. Before this Court the applicant expanded upon that submission and argued that his offending involved little more than the transfer of funds, unaccompanied by any disguise.

2. [27]

   The applicant further submitted that the manifest excess of the sentence imposed upon him was demonstrated by the sentence imposed by her Honour Judge Baly SC in the District Court in R v Roth [2015] NSWDC, 18 December 2015 unreported. The applicant submitted that the circumstances of the offending in that case (which was of a similar nature), as well as the nature of that offender’s subjective circumstances, were (but for one matter, namely that offender’s bipolar disorder) effectively “on all fours” with the present case.

Submissions of the Crown

1. [28]

   The Crown submitted that the applicant’s offending was characterised by a number of circumstances, including the fact that:

2. [29]

   It was further submitted that the sentencing judge had made allowance for a considerable degree of concurrence in the sentences he imposed, and that in all of the circumstances, the sentence was not manifestly excessive.

Consideration

1. [30]

   In order to succeed on either of these grounds, the applicant must establish that the sentence imposed was unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357; [2005] HCA 25.

2. [31]

   The circumstances surrounding the offending are set out in [7] above. Such offending was sustained over a period of time and involved a gross breach of trust. The agreed facts tendered to the sentencing judge recorded that by virtue of the misuse of his position, and the associated misuse of the privileges attaching to it, the applicant had fraudulently obtained a total of $1,716,016.69 over a period of 9 years.

3. [32]

   One of the applicant’s roles at the company was initiating electronic funds transfers, in favour of various vendors and suppliers who performed duties and services for the company, from an operating expense account. In order to initiate such transfers, specific software was installed on the applicant’s computer as a consequence of his managerial position. Consistent with that, the only person who was aware of the details necessary to gain access to the on-line banking system was the applicant. Perhaps even more importantly, the applicant had the requisite authorisation to initiate transfers through the system, and did not require approval from any other person.

4. [33]

   All of these circumstances tend to demonstrate the true nature of the offending. They run contrary to the proposition that the offending amounted to nothing more than a naïve transfer of monies. Moreover, they highlight the gross breach of trust in which the applicant engaged.

5. [34]

   It is evident from the remarks of the sentencing judge that he had regard to all relevant mitigating factors advanced on behalf of the applicant, who was represented by senior counsel on sentence. As to the specific complaint raised in ground 4, the sentencing judge said the following at the conclusion of his remarks on sentence (at ROS 9):

6. [35]

   It is apparent from those remarks that none of the indicative sentences approached the maximum penalty.

7. [36]

   Finally, to the extent that the applicant relied on the decision in Roth, it must firstly be noted that this Court has emphasised on a number of occasions that care must be taken when attempting to draw comparisons between sentences imposed in cases of like offending: see for example RLS v R [2012] NSWCCA 236 at [132]. In particular, it is important to consider the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case. A brief reference to her Honour’s reasons in Roth demonstrates two important factors which distinguish the circumstances of that case from the present. Firstly, the amount of money involved in that offending was $291,500.00, which was obviously substantially less than that involved in the present case. Secondly, there was evidence before her Honour that the offender in that case had been diagnosed with bipolar disorder. Her Honour was satisfied that there was a causative link between that mental illness and the offending. Quite apart from any other consideration, that necessarily meant that considerations of general deterrence became of less significance. Such factors formed no part of the applicant’s subjective case.

8. [37]

   In these circumstances, I am unable to accept the submission advanced by the applicant that the decision in Roth demonstrates that the sentence imposed upon him was manifestly excessive.

9. [38]

   It follows that neither of these grounds are made out.

CONCLUSION

1. [39]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Dismiss the appeal.