Anderson, Raymond John v The Queen

JUDGMENT No. .....-

........ ..

J .....

-7%

CATCHWORDS

Appeal - Sever i ty of sentence - Interference with

d i s c r e t i o n of

t r i a l judge

Princ ip le s

upon which

non-parole

periods

are

f ixed.

Federal

Court

Austral ia

A c t	- 1976	s.28(1).	P a r o l e o f P r i s o n s	Ordinance	1 9 7 1
( A . C . T . )

Raymond John

Anderson

v . The Queen

A.C.T .

No.

G . 1 0 of 1977

Coram:

Bowen C . J . ,

Smithers

and

Biackburn

JJ .

Canberra,

21/12/1977

IN RJB F$DBRAL COURT OF AUSTRALIA

AUSTRALW CAPlTAL TElFiI'IYIRY DISTRICT REGISTRY

No. G 10 of 1977

DIVISION

ON APPEAL

from the Supreme Court

of the Australian Capital Territory

BETWEEN : RAYMOND JOHN ANDERSON

Appellant

m :

m a m

Respondent

O R D E R

JUDCES W I N G ORMSt : Bowen C. J., Smithers and Blackburn

JJ.

DATE OF m :	21 December 1977.
WHEmpUE:	Canberra.
THE COURT ORaERS THAT:

The Appeal be dismissed.

AUSTRALIAN CAPITAL TERRITORY

IN !lTE F'EDER4L COURT OF AUSTRALIA 1

No. 10 of 1977

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL from the Supreme Court

the Australian Capital Territory

BETWEEN :

RAYMOND JOHIV ANDERSON

Appellant

AND:	THE QUEEN
7

Respondent

CORAM: Bowen C.J., Smithers	and Blackburn JJ.	',
!
I
DATE: 21 DECEMBER 1977	1

J U D G M E N T

BOWEN C.J. and BLACKBURN J.:

This is an appeal against the

severity cf a sentence awarded by Connor J. in the Supreme Court

of the Australian Capital Territory, the appellant having

pleaded guilty.

Counsel for the appellant submitted, in an argument

for which the Court is indebted to him, that the effect of

s.28(1) of the Federal Court Act

l976 is to give the Court

an unfettered discretion to substitute its judgment for that

the trial Judge

and pass such sentence as the Court thinks

warranted by the facts. For reasons delivered by the Court

(1477) 1s A M 631

in Kovac v. "he Queen

), we do not accept

t h i s argument. Those reasons need not be repeated here. Our

task is to decide whether the trial Judge in any way erred

in the exercise

of his discretion,

and unless we are satisfied

that he did

so, we will not vary the sentence passed by him even

- 2 -

if we think

it is more severe than we would have awarded in

the circumstances.

The appellant pleaded guilty on 3rd June

1977 to

twenty charges of making false entries with intent to defraud,

five charges of forgery, five charges of uttering and twenty

charges of embezzlement. The dates

of the offences ran from

15th January 1975 to 12th August

1976. During all that time

the appellant was the sales

and office manager, at

2; gross salary

of $260 per week, of

a company which conducted the business

of selling

land and houses, and it was this company which was

the only victim of the offences. The net result

of a l the

offences wes

a loss of $50,557 to the company. None of this

money has been restored

by the appellant,

and there is at

present no prospect that he will

be able to restore any of it.

The appellant was trusted by the company.

He was an

authorized signatory of cheques

dra-m on the company's general

bank account; for its trust account, the signatories were

directors of the company, but the latter often signed withdrawal

forms in blank presented to them by the appellant. The appellant

Frequently had custody and control of the trust account passbook.

His position

in the company was such that he was able to arrange

that moneys which should have been credited to the company's

trust account

- for which he was not

a authorized signatory

were credited to its general account. It was by these means that

the appellant was able to commit the offences. It

is obvious

that the supervision

of the companyts affairs by the appellant's

superiors was, over a period of some twenty months, insufficient

.. ,

. .

- 3 -

for the detection

of the appellant's criminal activities,

1 and that the appellant knew and exploited this fact.

The substantial reason for the appellant's persistence

in dishonesty was

his continuing indebtedness to

a bookmaker

for gambling debts. His dishonesty was revealed when, being

pressed for payment by the bookmaker, he got

a blank withdrawal

form signed by a director of the company for the purpose of

transferring a balance of $200 from the trust account to the

general account, filled

it in with the

sum of $6,200,

and used

it for the procurement of

a bank cheque for

$6,200 payable

to the bookmaker. Having been detected

in this crime, he

m e n decided to reveal the whole story

and co-operate with

investigating police.

The appellant had three previous convictions;

two in

the Childrents Court, which were expressly disregarded by the

trial Judge,

and one in 1971 in the Canberra Court

of Petty

Sessions for larceny as

servant, the value of the goods

stden

having been about

$20.

The appellant was born on 20th April

1942. At the

time of the first of the offences with which he was charged

in these proceedings, he was aged

33.

He had been married and

had a child, but the marriage was dissolved in

1974 and the

child was in its motherts custody. The appellant married again

in November 1975.

There are no children

of this marriage, and

the appellant's wife ceased cohabitation with him after the

discovery of these offences and before he was sentenced.

- ,

- 4 -

The sentence under appeal was that the appellant be

imprisoned for

six years on each of three nominated charges of

forgery, With

a non-parole period of three years,

and for one

year on each

of the other forty-seven charges, all sentences to

be served concurrently. Counsel for the appellant

did not

submit that the length

of the term of

six years in itself

indicated error on the part of the Judge, but submitted that

he overvalued the aggravating circumstances of the offences

and undervalued the rehabilitative benefits of probation.

His

principal submission was that the non parole period was too

long, having regard to all the circumstances,

in particular to

his genuine repentance, his willing co-operation with the

investigating police,

and his plea of guilty.

Tn our opinion the non perole period

fixed by the

trial Judg? was within the limits of

a reasonable exercise

his discretion. Nothing which has been put to

us indicates

that that discretion was exercised

in any way wrongly. The appeal

.	is accordingly dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. 10 of 1977

DISTRICT FECISTRY

GENERAL DIVISION

Between -

RAYMOND

And -

DATE: 21 December 1977

MASONS FOR JUDCMENT

T h i s , i s an appeal pursuant to

S . 24 of the Federal

Court of Australia Act

1976 against a judgment of the Suprcme

Court of the Australian Capital Territory sitting in its

Criminal Jurisdiction whereby upon

the conviction of one

Raymond John Anderson in respect of various offences co!nprisirg

20 counts of embezzlement,

20 counts of making false entry

a servant,

5 counts of forgery and 5 counts of utterinc, he

w x

sentenced to imprisonment for

6 years with hard labour

on thrce

forgerycharges and to imprisonment for one year on each

of th

other 47 charges and it was ordered that all such

sen%er,ccs b p

served concurrently and the minimum non parole perios

was fixed

at a period

of 3 years.

In pronouncing sentence the learned Judge

said -

"This is the case of an employee who occupied

a pos i t i on of trust with an

employer and

who

engaged i n a long ser ies of t ransac t ions

which

const i tute dishonesty of

a planned and sustained

charac te r and

which

r e s u l t e d i n

hls

employer

I being

defrauded

over

$50,000.

M r .

Palmer,

I on behalf of

Mr. Anderson, I think, has put

everything to

which could be put

on M r .

Anderson's

behalf.

Mr. Anderson

does

n o t ,

i n

my view, have a bad record; and f o r this purpose

I disregard the Children 's

Court

convictions.

has pleaded g u i l t y and he has been

most CO-operstive

w i t h t he

po l i ce .

still

remains

the

posit ion,

however, t h a t i n my

view it is a most ser ious

offence

and merits

s u b s t a n t i a l punishment.

On each of

the forgery charges,

which a r e numbc1,ed 10

and 44

and 49 on E x h i b i t A , I sentence Ra;r;nond

John Anderson t o be imprisoned for

a period of s i x

years

hard

labour.

On each

the

other

charges

set o u t i n

E x h i b i t A ,

sentence him

to imprisonnmt

f o r one year.

I order that a l l of the

sentences

126

served concurrently and

I f i x a minimum 2arole pc r lod

of	three years . l t

It was conceded that no e r r o r is apparent i n what

was said by the

learned

Judge.

It was

submitted however

t h a t

e r r o r is

demonstrated

i n the length

t h e s e n t e n c e i t s e l f

and

that

the matter should be

looked

a t on

the

b a s i s " t h a t

t he l eng th

the sentence

and i n p a r t i c u l a r

the non parole

period demonstrates

that H i s Honour had over-valued

t h e

r e t r i b u t i v e

and

deterrent element

and under-valued the

rehabili tative aspects.of sentencing	and	the re levant mi t iga t ing
aspects .

Counsel

did say

that

he f e l t d u t y

bound

t o s ay tha t

could

' 'not characterise the head sentence

being outslde

the

t a r i f f ,

i f

one

looks

a t t h e b r o a d d e f i n i t i o n i n t h e

firzt

instance.1f

He submitted that t h e non parole period

was high acd

so high as to sugges t tha t

His Honour d i d over-value or

mdes-

value

various

elements

alleged.

The

appeal was

against the sentence general ly

and

do no t think

that these remarks are to

be understood as

conceding that the appeal

:;as

t o be

considered as against the

non	paroie period only.

The appel lant is now

35 years of

age.

He concluded

his

schooling

a t 14 years of age gaining Junior Technical

C e r t i f i c a t e .

H i s f irst employment

was

the

butchering

t rade.

then jo ined the Vic to r i a

Railway Service and served

i n

for

yea r s r i s ing

from

por te r to guard .

moved

t o Canberra

t o p l a y f o o t b a l l

and

was

employed as 8 storeman with the Comonwealth Police

from 1965

t o 1971 when he was

dismissed after being charged

with three

counts of larcency as a servant .

On each

charge

he was f ined

$20 i n default 10 days Imprisonment

and ordercd to pay

compensation

$21.

Thereafter

was employed in

the

Real

Estate business

and i n 1972 he

joined the

staff of Grantham

Homes Pty.

Ltd.

as Sales Manager.

held t h i s pos i t ion until

August

1976

when

the offences, the subject of these proceedings,

were discovered.

Apart from two conv ic t ions in the Children's Court

i n 1956 and 1957

the appel lant has

convictions other than

those mentioned above.

The

offences now

before the Court

were committed

over a period of 18 months between 15th January 1975 and 12th

August 1976.

4 .

The

appel lan t ' s

duties with G r a n t h a m Homes

Pty.

Ltd.

en ta i l ed se l l i ng l and

and houses

behalf of

the

Company.

His

s a l a r y was

8260

gross per

week.

would

seem

tha t h i s du t i e s ex tended to con t ro l l i ng

entr ies

t o be

made

i n the

books of the

Company

a s t o t h e n a t u r e

and purpodes

of moneys received and cont ro l l ing the

bankirlg

t h e e x t e n t a t l e a s t

d i r ec t ing

sums

received

l n t o e i t h e r t h e

general account or the

trust

account and the preparation

cheques and withdrawal

forms f o r outward payments

of one kind

o r another.

had apparently

the

general

oversight

the

o f f i c e .

was regarded as a trustw0rth.j employee and l i t t l e ,

i f any, Lheck was

made

the

work

which he performed.

was made a s igna tory for opera t ions

on t h e Co!npanyls

general

account.

The

d i r ec to r s

t he

s ec re t a ry

the

Company

on	occasions signed blank withdrawal forms to facil i tate the

operation of the business

and

they

d id

this without quest ion.

In these circumstances he

was

enabled to carry out the offences

without

detection.

The first offence was embezzlement of

sums of money

received from

c l i e n t s which

should have been but

were

not paid

i n t o

t h e trust account.

As a resul t

se t t lements

could

not

be made from that account and moneys received by hi;

from other

purchaserswereused

meet set t lements .

Moneys which should

have been paid into

the

trust

account were

p a i d d i r e c t l l

Into

the general account

so t h a t a s t h e

trust

account was

used

f o r

set t lements

f e l l from

$46,000

to a lmost n i l dur ing the

l a months

5 .

of riminal activity. In the course of this activity

it whs necessary for the appellant to use forged withdrawal

forms, namely forms signed

in blank by a director of t h e

Company and filled

in by the appellant for an unauthorised

amount. To conceal

the irregularities the appellant made

false entries in the books

of account bf the company relating

to the receipt of money from clients

and the purpose to

which they were applied.

To facilitate his operations he

used a Company receipt

book which he held himself

so that

the i-eceipt of the money concerned was not recorded. In

August 1976 the deficiency for which the appellant was

responsible was $50 557. The multiplicity of charges

reflects to

some extent the complexity

of the Operations

to meet the money requirements arising from time to time

in the transactions

of the Company and its clients.

The offences came to light when

in August 1976 the appellant

obtained a cheque signed by one of the directors ostensibly

for advertising charges of

$200 which the appellant

changed to

$6,200 and paid to

his bookmaker. In fact all

the money wrongfully taken by the appellant had been pald

to this bookmaker. It appears that the appellant never

having been a gambler, was taken to the races by some

friends and fortuitously,

and unhappily as it turned out,

won $1000-00. It was in

an endeavour to repeat this

performance that he committed

the offences.

There was

of course

excuse

f o r s u c h c o n h c t

and it revealed a propensity for sustained criminal conduct designed to extr icate himself from the d i f f i cu l t i e s caused

e a r l y and apparent ly ever

mounting losses .

Once being i n

d i f f icu l ty the wise course

would

have been

t o make

clean

breast

t h e s i t u a t i o n

a t an ear ly s tage but fear

and

gambling f eve r were too

strong.

The

amount

s t o l e n

was

l a rge .

I s said that the

c l i en t s o f t he

Company

d i d

no t lose money which had been

pa id to

it by them.

It is

said t h a t t h e

Company

was

forced to reduce the pr ices

houses

i t had

fo r s a l e t o ga in the necessa ry funds to

meez

commitments.

It would seem t h a t the Company was in bus iness

i n a

l a r g e way

and

t h a t

i ts

capac i ty to cont inue to t rade

was

not destroyed.

The

u l t imate des t ina t ion

and

d i s t r i b u t i o n

of the losses

i s not disclosed.

I n the Austral ian Capi ta l Terr i tory

Judge

sentencing

conv ic t ed pe r son in r e l a t ion to the o f f ences in

ques t ion to imprisonment f o r any period

more than one year i s

required by

the Parole'of Prisoners Ordinance

1971 t o f i x a

non

parole period.

A t t he exp i r a t ion

tha t per iod the pr i soner

w i l l be

e l i g i b l e f o r p a r o l e

and

the p robab i l i t y

is t h a t he

would

seek t o be

released pursuant to

a parole order.

It appears from

S . 14 of the Parole of Prisoners

Ordinance t h a t where a parole order has been made i n r e s p e c t of a pr i soner a t a time when the non parole period has expired

and the pr i soner has been released

on the terms therein contained

he shall be deemed t o be still under sentence

of ir?prisonment

and not to have

served t h e p a r t

of the term

imprisonment

t h a t remained t o be served

a t t h e commencement of

the parole

per iod, unt i l the parole per iod expires without

the

psrole order

being revoked

or cance l led

o r until

he i s otherwise discharged

from that imprisonment.	By S. 2 the	“parole	perladI1 means the
period tha t -

(a)

commences on t h e day

which

the

pr isoner

i s

released from pr i son ,

and

(b)

ends

on t h ? day on which the

term

of imprisonment

t o which

that pr isoner wassentencedexpires ,

o r ,

i f

t h e p a r o l e o r d e r i n r e l a t i o n t o

the

pr i soner

i s

revoked

o r cancelled,on the date

the revocatio:l

o r cance l la t ion .

It IS a con;equence

of revocat ion that

t1l.z p r l sonzr

r e t u r n s t o

imprisonment t o undergo a period of

impriconmmt

commencing from the time

revocation and equal i n l e n g t h t o

the per iod

between his r e l ease on parole and the day on which

the term of imprisonment	t o which	the pr i soner	was	sentenced
expires .

Revocation may occur upon non observance of any of the

condi

ions of

the parole order .

was

l a rge ly arising

out

comparable provis ions of New

South Wales law that the Court

Criminal

Appeal

p3 in ted

ou t

R v. Humphrie~l971-J

N.S.W.L.k.

a t 784 , tha t it

i s an

er ror to regard the Paro le

of Pr isoners Act as

"a form of leniency".

It s a i d -

"This provision can

be more sa lu tory and reformative

than

leaving the pr i soner in the pr i son

where he

earns a l l h i s remissions and finishes

his sentence

completely free of any

control

whatsoever.

parole he may

be t o l d where

t o l i v e ,

how t o behave,

required

t o keep

away

from

indiv idua l ho te l s ,

t ake

and keep

employment

and

s o f o r t h . ( I .

And

t o be observed tha t , in

sense, the sanction

f o r non observance of

the conditions of a parole order increases

i n weight as the term of parole continues

and the t ime

ending of the

per iod

the

main sentence

approaches.

Thus a

non

observance of the parole conditions

i n t h e l a s t y e a r

year parole per iod

may

w e l l r e s u l t I n t h e

imprisonment of the

p r i s o n e r f o r

3 years during

a period extending for

years

o r

a f te r the prescr ibed per iod

the

main

sentence has expired.

And

it is a valid observa t ion tha t the per iod

conditional freedo

on parole i s e s s e n t i a l l y a period

punishment and

l i g h t

burden t o a person at tempting to regain

pos i t i on a s

c i t i z e n .

It can be seen therefore

that

re l ease on parole I s not

wholly

p r iv i l ege

the p r i sone r .

I t

a l te rna t ive

form

of punishment involving

many

r e s t r i c t i o n s awn and

imposing

du t i e s

the pr i soner not re l iev ing

him

the

r i s k

t h a t

h i s

t o t a l p e r i o d

imprisonment

w i l l ye t have t o be served,

and

p o s s i b l y a t

time

q u i t e remote

from the commission of his crlmc

and extending well after the expiration of the period of the

main sentence.

It is true that the risk will materialise

only upon some fault

on his part. That fault may be

a breach

of some f iving, reporting, working

o r other condition of his

parole.

It may be the commission of

an offence.

If the former, return to prison to complete

sentence might seem

a heavy sanction.

A harsh situation could

well be avoided by humane administration of the Parole Orclinance,

but according to circumstances, the possibility of having to

serve the balance of the sentence may be real. If

a new

offence is involved he will

IIO doubt have to suffer punizhment

in respect of that offence which

will be in addition to the

balance of that unserved in respect of the old.

It is a serious matter that

a priscner who

has served

three years

in prison and two years satisfactorily

on parole

should still be subject to this risk of serving imprisonment

for another three years.

It is to be observed

also that unless

a prisoner is

released by reason ofremissionsearned under

t h New South Wales

regulations pursuant to the

New South Wales Crimes Act

19013

published in the Government Gazette

No. 69 of 21st Play

1937,,

before the expiration of the non parole period,	a parole order
will make those regulations irrelevant.

It is established by authority that

Judge should

not increase

a sentence he imposes by taking into consideration

10.

potent ia l remiss ions for

good

conduct or the poss ib i l i ty

of h i s r e l e a s e

on paro le - R

v. Brockenbridge,. 1966

Q.B.

189,

R v. Assa Singii1965 2 Q.B. 312.

As was said by the Full Court

of South

Australia i n R v. Eckhardt,

1971 1 S.A.S.R.

a t 351 -

"As

genera l ru le ,

cour t i n s en tenc ing f ixes

the sentence

deems

appropr ia te for the par t icu lar

pr ime without regard to regulat ions providing for

,remission of

sentences, e i ther automatic

or for

[good behaviour, R v. Maguire; Menz and Royce v. The

Queen.

I n England it appears

accepted

that

t h e p o s s i b i l i t y

re lease

parole should normally

ignored in f ix ing sen tences

(R v. Lacgan;

R v.

Eaton).

Since

the

nactment

of S

421, however, a

judge,

in deciding whether to

fix a non-parole period

o r what

i ts duration should

be,

can hardly avoid

considering the impact of his order

the pr i soner ' s

prospects of

r e l ease on parole or remisslon

sentence.

But the ra t io dec idendi

Menz

and

Royce's

case still holds.

That

is, t h a t it is not for tne

Court

t o

attempt to counteract the general ap:, l ication

of	l eg i s l a t ive po l i cy .

However, it was said by the CourtofCriminal Appeal

i n R v. Comboj 1971lN.S.W.L.R.

a t 703 and

affirmed i n R v.

Humphries

( s u p r a ) t h a t i n f i x i n g

non

parole period the Court

ought

t o t ake in to cons ide ra t ion the l i ke ly l eng th

of remissions

(a)

because,

i f remissions

are

not

taken

i ~ t o

account

the non parole per iod

may be rendered rugatory

the ear l ier 'uncondi t innal re lease

the prisoner

on account of remissions, and

because

the pol icy

t h e l e g i s l a t u r e t o

confer upon the Parole

Board power t o impose conditions

on the r e l ease	of	pr i soners and t o supervise those
conditions.

And

the Court observed that in individual cases

11.

reason of these provisions,

f a r from being

form of

leniency,

"the operation of S . 6 (3) of the Parole Prisoners

Act may well

be the very reverse and result i n a more severe sanction than could

happen where no non

parole per iod

was

fixed.".

The

South Austral ian legis la t ion

w i t h

r e s p e c t t o

parole of ,!prisoners provides for certain remissions for

good

conduct

d Lr

i n g and

a f t e r t h e e x p i r a t i o n o f ' a non

parole period.

the

l i g h t o f t h i s f a c t o r

and

of other considerations

such

those mentioned above

the

Full

Court of South Australia

said i n R v. Eckhardt (supra)

a t pp. 351-352 -

"As a r e s u l t of

the

recent

leg is la t ive innovat ion ,

therefore ,

the

cour t s a r e

faced w i t h the task,

where imprisonment m u s t be imposed, not p e t of

f i x i n g

proper term, but of considering

and

resolving the question whether

non-parole period

should

should not be

imposed,

and of

formulating

a	duly proportioned and properly balanced sentence

that is appropr ia te to

meet

a l l the circumstances

t h e

c a s e .

I n

a r r i v i n g a t

such

sentence

the

judge must

b e a r s t e a d i l y i n

mind

the length

any

non-parole period he

is contemplatlng, and i t s

bearing on the important work of the Parole Board

and

the operat ion

and e f f e c t of

t h e c u r r m t

regulations governing remissions that are capable

being, and ordinarily

w i l l be, earned

a pr i soner

who is of good behaviour during

h is detention.

matters

now

s t and , t he nea re r

the non-parole period

approaches two-thirds of the sentence actually

imposed, the less scope

there

is for the Paro le

Board

t o e x e r c i s e

its

funct ions,

and

t o t h e e x t e n t t h a t

such

a period exceeds that two-thirds

it not only removes

t h e

normal

power

of the Parole

Board

to in te rvene ,

but

a lso deprives the pr isoner of

the

chance

earning the

normal remissions that he

i s

encouraged

t o earn by responding

favourably

treatment.

The

legis la ture undoubtedly contemplates that

i d ~ c r h y

well

short non-parole periods could becom

appropriate

but

achieving the del

icate

b3lance

that marks a just sentence both

from the point

o f view

12.

of the pr isoner

and of the

community,

none

the considerat ions

just

mentioned can be over-

loaked.

It f o l l o w s

t h a t

i n

p r a c t i c e

judge

ought

t o s t r i v e t o

assemble

f o r his consideration

as much

re levant mater ia l as

i s reasonabl,

obtainable , and clear ly to recognise the

consequences of every aspect of the order

makes

with

respect

sentence.

br ief ,

t h e

t e s t h a s

POW

become not only,

What is the proper length

of sentence? but

a l s o , What

i s the proper balance?

One case may require a heavy sentence

but no non-

parole period, another	- not perhaps very differext	-
!

#may require a moderate sentence but

lenghty non-

(pa ro le

pe r iod .

e s s e n t i a l

t h a t

a sentencing

1 judge should exercise

d i s c r e t i o n t h a t

a t once

f l e x i b l e

and

readi ly responsive to the needs

individual cases .

is no

doubt the pol icy of the legis la t ion

the

Austral ian

Capital

T e r r i t o r y t h a t r e l e a s e

upon

parole should

normally eventuate in

the case of

a pr isoner sentenced to

term

imprisonment

more than one year,

But it w i l l not

happen

unless

t h e

non

parole per iod expires before the date

which the p r i sone r would	be	released by reason of remissions
f o r good conduct.

(1974)

Sub jec t t o what is said i n Power v. R/l3l

C.L.R.

a t

would

be agreeable to the leg is la t ive pol icy tha t

Judge

should f i x a

non

parole per iod

which

i s l i ke ly to exp i r e be fo re

the

probable

date

refease

for

remissions.

However,if

that

is t o be

done t h e f a c t

that it i s done

and the possible detriment

t o the pr i soner of doing it would seem t o be a consideration

t o be taken into account Itin formulating

duly proportioned

and properly balanced sentence	tha t i s appropr ia te to	meet	a l l
the circumstances of the case.".

In t h i s case we

were informed that the probable period

.	'	L '.
. *

the subject of remission

f all possible points were earned

muld be about

two years.

/As was pointed out in Power v. R

(supra

at p. 628, in relation to the Parole of Prisoners Act of New

South Wales

n......no

assistance towards the construction

of the Act

is to be

had by considering the

various objects

of criminal punishment and by

treating the non-parole period as retributive

and the remainder

of the time served in confinement

a8 a period of rehabilitation. Confinement in

prison serves the same purposes whether before

or after the expiration of

a non-parole period and,

throughout, it is punishment, but punishment

directed towards reformation. The only 2ifference

between the two periods is that during the former

the prisoner cannot

be released on the ground that

the punishment has served its purpose sufficiently

to warrant release from confinement, whereas

the latter he can. In a true sense the non-paroie period i s a minimum period of imprisonment to be served because the sentencing judge considers that

the crime committed calls for such detenti0n.I'

(per Banrick CJ, Menzies, Stephen and Mason

JJ)

It was also said at p.

627:-

Ithat in the application of the Parole Ordinance of the Australian Capital Territory the judge should determine that minimum period for which in his

judgment, accbrding to accepted principles

sentencing, the prisoner should be imprisoned.l'

end at

629 -

"that the intention

of the relevant legislation is

to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom when appropriate, once the

prisoner has servcd the minimum time that

a judge

determines justice requires that he must serve

having regard

to all the circumstances of his offence."

It would seem that with respect to each aspect of the

8a-e

the wel establbhed principles of sentencing are

c	.
& *

14.

appl icable .

And I do no t think

t h a t it is t o

read

into

what was

s a i d

i n

Power v.

(supra)

that

considerat ion

a l l t h e m a t t e r s

referred

t o above

a s c a l l i n g

f o r a

duly

proportioned and properly balanced sentence	i s not a necessary
exercise .

Passing then to the circumstances

this

case

i s

said f o r the appel lant that h i s pr ior convidt ions are

minor.

1 ,

I ,

It is s a i d t h a t

he has been punished heavily

for

this crime

apa r t from

the

judicial sentence.

this

connection h i s

marriage which appeared stable until the

emergence

s t r a i n s

due

t o this crime

has

broken up.

H i s wife underwent

a pregnancy termination

and

then

l e f t him,

so t h a t he

l o s t

both wife and possible chi ld .

has l o s t his employment and

a l l chance of

ever regaining

a s imi la r pos t

and w i l l almost

ce r t a in ly have

t o engage

i n d e f i n i t e l y i n

some

kind

of manual

work.

It is urged on h i s behalf

that

although multiple

crimes

are

involved

there

was an ove ra l l un i ty .

It was urged

t h a t their commission ought

t o be regarded as

a special episode

not l ike ly to recur because , no th ing l ike

had happened

before the fool ishness

such conduct has been well

brought

home

t o the appel lant and the opportunity

is no t l i ke ly

t o a r i s e

again.

It was a l s o submit ted

that

i s t o be

in fe r r ed tha t

15.

in the commission of the crimes the appellant must have

suffered fear, panic and despair.

It is pointed out that once the facts had to be faced the appellant co-operated with the investigating police in a creditable manner to explain the multiple transactions

involving the many clients affected and did

so to such good

effect that investigations which might have taken

a year or

more were completed quite promptly. It is then said that

on the evidence the prospect of rehabilitation

is good. It

is submitted that the appellant was assisted to steal

fully because of inadequate system or audit. But it is

not unlikely that once the appellant became substantially

involved desperation would have led to greater ingenuity had

it been required.

As against the appellant it is most important that

he did use so much ingenuity

so persistently and intensely

over the period of some eighteen months and that the ultimate loss

inflicted on the company was

$50,557.

However, in

;

view there is

a degree of validity

in a number of the submissions made on the appellant's behalf.

In these circumstances one is required to :onsider

what sentence would represent the appropriate duly proportioned

and properly balanced sentence.

It is clear that the element

of deterrence must

16.

balanced

aga ins t the requi rements of rehabi l i ta t ion ,

tha t

scope should

provided for the effect ive operat ion of

the

parole

system.

A t t h e same time regard

should

had

the

puni t ive aspec t

that

system and

i t s p o t e n t i a l t o r e s u l t i n

actual imprisonment a t a time remote from the commission of the crime and extendlngsubstantiallybeyond the term of the

main sentence.

It is my

view that a Judge could well have considered

that

balancing

a l l

the var ious fac tors , the appropr ia te

sentence would provide for imprisonment for

5 years with

non parole period of

3 years.

Such a

sentence ref lects the

views of the learned Judge, with

which

ag ree , t ha t

period

of 3 years is t h e minimum period which,

because of the nature

of	the offence. ought	i n t h e i n t e r e s t s	of	the community t o
be	actual ly served.

Regarding a per iod of two years as a fu r the r pe r iod

of punishment, sub modo, such a sentencewould provide for

5 years o f punishment.

A t t h e same time,

regarding

the

period

actual imprisonment

a s i t s e l f

a per iod of reformative treat-

ment

it provides

y e a r s i n

a l l of effect ive reformative control

and supervision.

does not

remove

t h e p o s s i b i l i t y i n t h e p u n i t i v e

reformative procedures

under the Parole

of Prisoners Ordinance

1971,

the

pr i soner w i l l n o t a c t u a l l y

in p r i son du r ing

subs t an t i a l pe r iod

after the exp i r a t ion

years .

h -

17.

The question ther. i s , whether t h i s sentence is

proportionately so much less then tha t

imposed by the learned

Judge t h a t it is t o be

inferred therefrom that

an e r ror has

occurred i n the appl ica t ion

by the learned Judge of

the

p r inc ip l e s

sentencing

of such a nature that

the duty

the

Court

Appeal

t o i n t e r f e r e .

However,

r e f l ec t ing

the views expressed

i n Kovac v. R , (1977) 15 ALR 637 and

recognising the advantages of t h e t r i a l Judge i n a matter of t h i s

kind it would not be

appropr i a t e t o in t e r f e re

i n this

case

w i t h the sentence

imposed.

Accordingly the appeal

must

stand dismlssed.

. 1

[1978] FCA 29

21 Dec 1978