Clark v Smith
[1987] TASSC 96
•22 May 1987
Serial No B26/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Clark v Smith [1987] TASSC 96; B26/1987
PARTIES: CLARK
v
SMITH
FILE NO/S: LCA 19/1987
DELIVERED ON: 22 May 1987
JUDGMENT OF: Wright J
Judgment Number: B26/1987
Number of paragraphs: 13
Serial No B26/1987
List "B"
File No LCA 19/1987
CLARK & ORS v SMITH
REASONS FOR JUDGMENT WRIGHT J
(DELIVERED ORALLY) 22 May 1987
This is a motion to review penalties imposed in the Court of Petty Sessions, Hobart on 26 February 1987 on the ground of manifest inadequacy.
The respondent entered pleas of guilty to complaint No 18114/86 containing 23 charges of forgery, contrary to s278 of the Criminal Code and 24 charges of uttering contrary to s279 of the Criminal Code. He also entered pleas of guilty on complaint No 18360/86 to 38 charges of forgery and 38 charges of uttering. On complaint No 18113/86 he entered pleas of guilty to one charge of forgery and on complaint No 145887, he pleaded guilty to one charge of uttering.
On the first mentioned complaint he was sentenced to perform 40 hours community service and placed on a probation order under supervision to be of good behaviour for a period of 12 months. In respect of the second mentioned complaint, he was sentenced to perform 80 hours community service and placed on a further probation order under supervision to be of good behaviour for a period of 12 months to be concurrent with the first mentioned probation order. On the third and fourth mentioned complaints, convictions were recorded.
The complaints arose out of 31 separate criminal transactions over a period of 31 months between April 1984 and November 1986 whilst the respondent was employed as a surveyor's assistant with the Department of Main Roads. In connection with his employment, he was entitled to claim for meal and travelling expenses. By fraudulently altering the claim vouchers once they had been certified by his superior officer and then submitting them for payment, the respondent was able to obtain monies amounting to approximately $9,000 in excess of his entitlement.
On the 26 November 1986 the respondent was interviewed in respect of these matters and signed a record of interview admitting the offences. It is clear from what is contained in the record of interview[i] and what was stated by his counsel, that the respondent's fraudulent course of conduct had its genesis in his resentment concerning work duties that he was required to perform. His view apparently was that he was performing duties of such a kind that a salary increment was justified. He had made overtures to his employers in respect of this claim but it had been rejected. It should be said at once that even a well founded complaint of employer exploitation can neither justify nor excuse criminal conduct of this kind. There are numerous avenues by which redress can be sought, either through direct union action, under the Industrial Relations Act, 1984 or through the Tasmanian State Service legislation. The award governing the employee's conditions of employment may also contain helpful provisions. These comments however are by the way.
The respondent is a mature man aged 43 years. He has a previous conviction for dishonesty in 1963 and there are a number for traffic offences, including drink driving offences. None of these are recent convictions, and they may be put out of mind. The respondent was in no financial need and it is plain that he used a substantial amount of the monies obtained from the Department of Main Roads for gambling.
Not surprisingly, as a result of these offences he has now been suspended from the Department of Main Roads and, with some justification I think, believes that he will not be re–employed although he has spent 23 years of his life working with that organisation. The available material suggests that he was well thought of in his employment and a number of references were tendered from friends and acquaintances which suggest he was welt regarded in the community. In addition the learned magistrate called for and received, a pre–sentence report which he regarded as favourable to the respondent. It is plain from what the learned magistrate said when passing sentence that he regarded these as serious matters and was conscious that fraudulent conduct of this kind, persisted in over a considerable period of time, should normally result in a substantial period of imprisonment. However taking into account the pre–sentence report, the references and the address in mitigation by defence counsel Mr Piggott, the learned magistrate decided against this course.
Whilst it is true that dishonest offences against public revenue are prevalent at the present time, I do not think that of itself requires a court to impose a more severe sentence than it would in the case of private fraud. It is submitted however that the complaints before the learned magistrate involve a substantial sum of money in total and demonstrate persistent dishonesty over a substantial period of time. It is submitted by the applicant that in such circumstances, particularly in cases lacking significant extenuating features, a sentence of imprisonment is called for.
It is plain that, although multiple offences should not necessarily attract individual cumulative sentences, (see Bruce v the Queen [1971] Tas SR p22), encouragement should not be offered to those engaged in criminal activity to think that they may as well be hung for a sheep as a land. A court's failure to clearly distinguish between numerous repetitive offences on the one hand, and isolated crimes on the other, has this tendency. As a consequence I think it may be said that where in cases of fraudulent conduct a substantial sum is systematically misappropriated by a mature employee over a period of months or years without such mitigating factors as extreme financial need or mental or physical ill–health, a gaol sentence is called for. (See Thomas Principles of Sentencing 2nd edn p152, Pullen v The Queen 15/72 (CCA., Reynolds v The Queen 46/74 (CCA), and Grant v Davis 27/80 (Green CJ)).
In Pullen v The Queen (supra) Burbury CJ said:
"… It must be borne in mind that notwithstanding modern principles of individualisation of punishment, that there are still many serious crimes which come before the Court in which the principle of deterrence overweighs the personal circumstances of the offender. It may be clear to a judge, in this sort of case, where there are multiple crimes of some seriousness, that whatever the previous character and personal circumstances of the offender may be, he has a duty to protect the community by imposing a substantial term of imprisonment."
In the present case, I think that there was a clear need as a matter of general deterrence for the imposition of a term of imprisonment and that the options of probation and community service orders were not reasonably open to the learned magistrate. Consequently the motion will be allowed and the sentences imposed by the learned magistrate will be set aside. In lieu thereof the respondent will be sentenced as follows:
On complaint No 18113/86 – Conviction recorded.
On complaint No 1458/87 – Conviction recorded
On complaint No 18360/86 – twelve months' imprisonment.
On complaint No 18114/86 – twelve months' imprisonment.
The sentences will be concurrent. Having imposed these sentences, I now turn to consider whether their execution should be suspended in whole or in part, (see R v Percy [1975] Tas SR 62). It is I think legitimate to take into account that the respondent, notwithstanding his pleas of guilty, has been awaiting final disposition of this matter for some months and I accept that he has been in a state of considerable apprehension as a consequence. Furthermore I am of the view that several of the factors normally regarded as relevant and conducive to a suspension of sentence are present in this case. For these reasons I take the view that one half of each sentence imposed should be suspended for a period of 18 months, such period to be calculated from the date of the respondent's release from gaol. Conditions of suspension are:
1That the respondent be under the supervision of a probation officer at Hobart during the period of such suspension and that he comply with the reasonable directions of such officer.
2That the respondent be of good behaviour during the period of suspension and in particular, that he commit no offence of dishonesty during that period.
The effect of the order which I have just made is that the respondent is sentenced to a total effective immediate term of imprisonment of 6 months. The balance (6 months) of his sentence is suspended on the conditions I have announced. If he complies with those conditions the balance of the sentence will not have to be served. If however, he breaches those conditions he may be brought back before me and I would then have power to activate the unexpired balance.
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