Dimech v Tasmania

[2016] TASCCA 3

[2016] TASCCA 3

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Dimech v Tasmania [2016] TASCCA 3

PARTIES:  DIMECH, Shaun Matthew
  v
  STATE OF TASMANIA

FILE NO:  CCA 486/2015
DELIVERED ON:  2 March 2016
DELIVERED AT:  Hobart
HEARING DATE:  10 November 2015
JUDGMENT OF:  Porter, Estcourt and Pearce JJ

CATCHWORDS:

Evidence – Proof – Facilitating proof – Matters relating to post and communications – Admissibility of recording of telephone conversation – Statutory prohibition on use of a listening device to record a private conversation – Evidence of a private conversation potentially inadmissible where it has come to the knowledge of a person by use of a listening device – Recording by betting agency of a telephone call by accused to the agency to place a bet – All telephone bets recorded – Conversation with betting agency operator not a "private conversation".

Listening Devices Act 1991 (Tas), s 5.

R v East (2003) 13 NTLR 91, applied.

Aust Dig Evidence [1239]

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Whether sentence manifestly excessive – Accused placed bets by telephone using credit cards – Later claimed to credit providers that bets not made by him – Six charges of dishonestly acquiring a financial advantage and 15 of attempting to do so – Total amount of about $94,000 of which $56,000 actually obtained – Previous good character and able to make restitution – 30 months' imprisonment with six months suspended on conditions not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  M Rinaldi and C Scott
             Respondent:  H Denton
Solicitors:
             Appellant:  Leonard Fernandez
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2016] TASCCA 3
Number of paragraphs:  82

Serial No 3/2016

File No CCA 486/2015

SHAUN MATTHEW DIMECH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
ESTCOURT J
PEARCE J
2 March 2016

Orders of the Court

1. Appeals against conviction and sentence dismissed.

Serial No 3/2016

File No CCA 486/2015

SHAUN MATTHEW DIMECH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
2 March 2016

1. I have read the reasons for judgment of Estcourt J.  I substantially agree with those reasons and I would also dismiss the appeals against conviction and against sentence.  I want to make some additional comments about both appeals. 

Conviction

1. In relation to the appeal against the finding of guilt, I would like to say a little more about grounds 1, 2 and 3 which relate to the Listening Devices Act 1991 (the Act). I agree with Estcourt J that the Betfair recording was not of a "private conversation" within the meaning of s 5(1)(b) of the Act. The recording was of a telephone call to Betfair, a large betting agency, by the appellant for the purposes of placing a bet. It seems a clear inference, and there is no suggestion to the contrary, that the appellant had no idea of the identity or the whereabouts of the person to whom he was speaking.

2. Leaving to one side for the moment the written conditions of his arrangement with Betfair to which I will come in a moment, the appellant ought reasonably to have contemplated that the details he passed on to the operator would be noted in some way.  Indeed, that was the very point of his call.  He was placing a bet.  It would defy the ordinary use of language to maintain that the conversation was a private one, albeit that the appellant passed on personal information. 

3. In strict terms, it is unnecessary to consider the Crown's alternative arguments, but it is worth making some observations about them. If the correct view is that the recording was of a private conversation, I would take the view that both s 5(3)(a) and (b) of the Act applied in this case. Subsection (3) relevantly provides that the proscription on using a listening device to record a private conversation does not apply if:

   "(a)  all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used; or

   (b)a principal party to the conversation consents to the listening device being so used and —

   (i)   the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party."

4. As to subs (3)(a), the trial judge had evidence that opening an account with Betfair could be done online.  Once personal details had been entered and a password set up, the person was required to click on a tab, "Agree and open account".  The page stated that in doing so, they agreed to, among other things, the "Terms and Conditions", and the "Privacy Policy". Those terms were put as hyperlinks to the text.  Once the tab was clicked, the account was opened; if it was not, no account was established. 

5. Under the Betfair terms and conditions, Betfair "reserved the right" to record all telephone calls to and from Betfair to monitor all information relating to betting activities for which purposes the account holder consented in accordance with such legislation as may be applicable.  The privacy policy stated that Betfair recorded all telephone conversations the account holder made, including all bets, queries and disputes, for the purpose of security investigations and for regulatory compliance.  From these things, it might reasonably be concluded that the appellant impliedly consented to his telephone calls being recorded, and hence to the use of a listening device.

6. Section 5(3)(b)(i) relates to the lawful interests of a principal party to the conversation. That would be the individual. It is reasonable to construe the provision as applying to the situation in which the principal party is acting as agent of the person for the protection of whose lawful interests it is reasonably necessary to record the conversation.

7. Reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording, and "necessary" means appropriate, but not essential: Sepulveda v The Queen (2006) 167 A Crim R 108 at 132 [117]-[118] and the cases cited. "Lawful interests" are to be distinguished from "legal interests", the former expression conveying notions of "legitimate interests" or "interests conforming to law": Violi v Berrivale Orchards Ltd (2000) 99 FCR 580 at 586 [28].

8. If the correct view is that the "lawful interests" must be that of the principal party, and not of a principal where the "principal party" to the conversation is an agent, it is at least arguable that in such a case as the present, a record of the conversation would be reasonably necessary for the protection of the lawful interests of the operator who takes the call.  That is because of the nature of the business being conducted and of the call.  A recording by which the details of a bet given by the caller could be later confirmed, would be invaluable in the case of any dispute.  An allegation of a mistakenly noted bet may adversely affect the employment interests of the operator. 

Sentence

1. I agree with what Estcourt J has said as to the specific errors.  I have carefully considered the appellant's submissions on the question of whether the sentence is manifestly excessive absent any finding of specific error. The appellant faced 21 counts; six of dishonestly acquiring a financial advantage and 15 of attempting to commit that crime.  The total amount of money involved was a little over $94,000.  The appellant actually obtained some $56,000, as represented in the six counts of the completed crime.  The balance of $38,000 was represented in the 15 counts.  As was urged in the appellant's submissions, I have had regard to the range of sentences imposed in cases of theft or fraud where the offender was in a position of trust.  So measured, this sentence may be characterised as a heavy one, although the great majority of such cases seem to have involved pleas of guilty.  Many involved early offers of, or actual, restitution. An appropriate and proportionate sentence to the appellant's offending could not be increased because of his pleas of not guilty, but he did not have the benefit of those mitigatory factors, nor of the often associated factor of remorse.  I also note that then counsel for the respondent did not suggest to the sentencing judge that a gambling addiction was at play, bearing in mind, of course, the limited circumstances in which that may be mitigatory: Johnstone v Tasmania [2011] TASCCA 9 at [13].

2. As to the aggravating features as outlined by the Crown, the amount of money involved and length of time of offending are really circumstances of the offending which make it a serious case. I do not accept the characterisation of the crimes as "sophisticated".  The dishonest conduct involved an assertion that debit card transactions had not been made or authorised by him; that was the extent of his conduct. At the same time, however, that conduct involved the financial institutions in much investigative work. Additionally, the Crown notes that the appellant continued to offend even after the offending was detected. The offending commenced in August 2010 with the Commonwealth Bank. The offences relating to MyState and ANZ Bank were committed on 27 July 2011 and 5 December 2011. Two further offences relating to the Commonwealth Bank were committed on 29 November 2011. 

3. On 12 December 2011, the appellant was interviewed at length by police in respect of the MyState matters.  It was put to him that he had made false statements that the relevant transactions had not been made or authorised by him.  He denied the allegations and argued the truth of his statements. It emerged that he had frequently contacted MyState inquiring about the progress of his disputes. About seven months later the appellant committed three further completed offences in relation to the Commonwealth Bank, obtaining $26,000. The offending after the interview shows complete disdain for the law and authority, and the particular bank as a victim; it is an aggravating factor of some significance.  This aspect increased the need for the sentence to reflect factors of general and personal deterrence.

4. That being said, I remain of the view that the sentence was a heavy one.  However, I am not satisfied that in all of the circumstances of the case, it has been shown that it is such that indicates an error in the sentencing process.  I am not satisfied that the sentence was outside the range reasonably open to the sentencing judge.

   File No CCA 486/2015

SHAUN MATTHEW DIMECH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
2 March 2016

The appeal

1. On 19 May 2015 the appellant, Shaun Matthew Dimech, was found guilty by a jury of six charges of dishonestly acquiring a financial advantage and 15 charges of attempting to dishonestly acquire a financial advantage.

2. He was convicted by Blow CJ and was sentenced to 30 months' imprisonment with effect from 5 May 2015.

3. His Honour ordered that six months of that sentence be suspended on conditions that the appellant commit no crime or offence punishable by imprisonment for a period of two years, and that he execute equitable charges over his interest in the property at 269 Churchill Avenue, Sandy Bay, in favour of the companies to whom he was that day ordered to pay compensation in sums totalling $55,982.95. A non-parole period of half of the operative part of the sentence was ordered.

4. A summary of the facts of the appellant's offending appears in the learned trial judge's comments on passing sentence.

5. It is convenient to set that summary out at this point, given that the appellant has appealed against the severity of the sentence imposed upon him, as well as against his conviction.

6. The learned trial judge said:

   "Mr Dimech has been found guilty by a jury on six charges of dishonestly acquiring a financial advantage and 15 charges of attempting to dishonestly acquire a financial advantage.  These crimes were committed over a period of just under two years, from August 2010 to June 2012. Mr Dimech engaged in online gambling, maintaining accounts with a number of gambling companies based in Australia and overseas.  He lost a lot of money.  On 21 occasions, he fraudulently attempted to get back money that he had lost by dishonestly asserting that debit card transactions had not been made or authorised by him.  In six cases, all of which concerned the Commonwealth Bank, he was successful. The Commonwealth Bank refunded a total of $55,983.63 that he had paid to gambling companies from his Commonwealth Bank Mastercard account. Those losses were ultimately borne by the gambling companies. The other 15 attempts were unsuccessful. Seven of those attempts concerned a credit union named MyState Financial, and transactions with a total value of $29,663.79. The other eight unsuccessful attempts concerned the ANZ Bank, and transactions with a total value of $8,598.  Thus, in total, Mr Dimech attempted to defraud three financial institutions of a little over $94,000, but succeeded in relation to only one institution, and only to the extent of $55,983.63.

   Mr Dimech is 31 years old.  He has no significant prior convictions. He has a good employment record. It seems he was trusted by his employer, for whom he worked as a storeman for many years, even after he was charged with these crimes. Some substantial mitigating factors that are commonly found are absent in this case. Mr Dimech did not plead guilty, but instead put the Crown to the trouble and expense of a very complicated trial, involving the obtaining of evidence from overseas, and the calling of witnesses from gambling companies, banks, and even a witness from the company that runs PayPal, who gave evidence by video link from Shanghai. So, the co-operation in the administration of justice that is reflected in a plea of guilty was not present in this case. And the other major mitigating factor that is sometimes present, but is not in this one, was remorse. 

   As it happens, Mr Dimech is a person with a substantial asset. He and his mother own a house in Sandy Bay as tenants in common in equal shares. He is therefore in a position where the companies that bore the losses in this case are in a position to recover money from him by proceeding against that asset, if necessary.  He and his mother have signed two authorities authorising the proprietors of a legal practice to sell that property and use the proceeds to pay full restitution. I have some doubts as to whether those documents, which purport to be irrevocable authorities, really are irrevocable. However what I propose to do is to impose a prison sentence and suspend part of it on condition that, amongst other things, Mr Dimech give an equitable charge over his interest in that property to each of the companies to whom compensation is payable.

   I think that the only appropriate sentence in this case is a sentence of imprisonment. It is appropriate that part of it be suspended on condition that an equitable charge is given so that there should be no doubt as to restitution. In that way, I think that the capacity to make restitution, and the desire to make restitution, will be taken into account appropriately as mitigating factors."

7. As I have already noted, the appellant has appealed against his conviction and sentence. The grounds of appeal are as follows:

   "APPEAL AGAINST CONVICTION

   1The Learned Trial Judge erred in law in ruling that the telephone conversation between the Appellant and Betfair was not a private conversation within the meaning of the Listening Devices Act 1991 (Tas).

   2The Learned Trial Judge erred in law in not exercising his discretion to exclude the evidence of the Betfair telephone conversation.

   3The Learned Trial Judge erred in law in not exercising his discretion to exclude the evidence of the Police Record of Interview.

   4The Learned Trial Judge erred in law in that His Honour created prejudice or irregularity in the trial process by describing the defendant as 'Mr Guilty' in the summing up to the jury thereby causing a miscarriage of justice;

   APPEAL AGAINST SENTENCE

   5The learned trial judge erred in law in that he imposed a sentence that was manifestly excessive in all the circumstances."

8. The first ground of appeal relates to the admission into evidence by the learned trial judge, over objection, of a recording of a telephone conversation between the appellant and one of the gambling companies, Betfair (the Betfair recording).  If there was no error on the part of the learned trial judge in admitting that evidence as lawfully obtained, then the second and third grounds of appeal do not arise for consideration.

9. This is because the second ground of appeal, which asserts that the learned trial judge erred in not exercising his discretion to exclude the Betfair recording, is predicated on that recording being unlawfully obtained.

10. Similarly, the third ground of appeal, which relates to the admission on the trial of a record of an interview between the appellant and police, is impugned only on the basis that the police questioning relied upon the Betfair recording.

Grounds 1, 2 and 3 - the Listening Devices Act 1991

1. The learned trial judge ruled that the Betfair recording was not unlawfully obtained because it was not a recording of a "private conversation" within the meaning of the Listening Devices Act 1991, s 5(1)(b) (the Act).

2. That section provides that a person shall not use, or cause or permit to be used, a listening device to record a "private conversation" to which the person is a party.

3. The words "private conversation" are defined in the Act as follows:

   "private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only –

   (a)     by themselves; or

   (b)by themselves and by some other person who has the consent, express or implied, of all those persons to do so; …".

4. The learned trial judge ruled on the appellant's objection to the Betfair recording made on the basis that the recording was an unlawful recording of a private conversation contrary to s 5 of the Act as follows:

   "So far as the telecommunications legislation is concerned my view is that the case of Green v R (1996) 135 ALR 181 was correctly decided by the Court of Criminal Appeal of Western Australia. The section relied upon is concerned with recording or listening to communications by third parties, not by a caller or a person called, so this is not a situation where there was a contravention of s7 of the telecommunications legislation. There was no interception within the meaning of the relevant section.

   So far as the Listening Devices Act is concerned I accept Mrs Denton's submission that the conversations were not private conversations for the reasons stated by her, therefore no constitutional question can arise. If the Listening Devices Act is capable of applying it doesn't apply because the conversations in question were not private conversations, so it follows that there's been no illegality or impropriety in relation to the handing over of the recordings. The objection fails and the evidence can be admitted."

5. His Honour's ruling that s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) was not engaged is not the subject of appeal to this Court.

6. The question of whether there is an inconsistency between s 5(1) of the Act and s 7(1)(a) of the Telecommunications (Interception and Access) Act, and whether s 5(1) is invalid to the extent of that inconsistency, by virtue of s 109 of the Australian Constitution, could only possibly arise if I took a different view to that of the learned trial judge as to the lack of application of s 5(1)(b) of the Act. I do not.

7. In his ruling set out above, his Honour accepted the submissions made by counsel for the State, Ms Denton. It is necessary therefore to set out those submissions.

1. Ms Denton said:

   "In terms of the Listening Device Act again that is intended to cover the Betfair recording. The Crown's position is that it's not a private conversation; private conversations mean words spoken by one person to another person or to other persons in circumstances that may be taken to indicate that any of the person desire that the words to be listened to only by themselves or my themselves and by some other person who has the consent, express or implied, of all of those persons to do so.  Betfair and that conversation, it was a conversation about placing a bet with a company – with a business, it was creating a record of the bet and in my submission, it wouldn't be something that was done in circumstances where you expected it to be private.  The words spoken weren't of a private nature, they were about placing a bet, and really no different to if you were to walk into somewhere like the TOTE – TOTE Tasmania in town and place a bet at the counter, which is done openly. The conversation was intended to be had with any person who answered the phone for Betfair as opposed to some particular intended recipient."

2. I too accept that submission.

3. By the use of the words "in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only … by themselves", the test posed by the definition in the Act of the words "private conversation" is patently rendered an objective test.

4. That was also the view reached by Mildren J in R v East (2003) 13 NTLR 91 at [23]-[28] in respect of a relevantly indistinguishable definition of the words "private conversation" in s 3 of the Surveillance Devices Act 2000 (NT). His Honour there followed an earlier unreported decision of Cummins J in R v Storey (Supreme Court of Victoria, Cummins J, unreported 9 December 1994). In that latter case, Cummins J was dealing with a similar definition of the words "private conversation" in the Listening Devices Act 1969 (Vic).

5. I cannot accept that, objectively viewed, the placing of a bet by telephone to a gambling telephone service involves circumstances that may reasonably be taken to indicate that either the bettor or the gambling telephone operator would desire the words to be listened to only by themselves.

6. The appellant, in his written submissions, argues that during a telephone conversation, unless the contrary is stated, it is inferred that the conversation is a "private conversation" between two people, and that this is especially the case where information such as private identification details/credit card details, and verification information is sought by one or other of the people to the conversation.

7. I do not accept that submission. It is commonplace for personal information, including financial information, to be imparted in a very public way in the course of commercial transactions conducted by telephone. That the actual details provided by an individual during a commercial telephone transaction are themselves of a personal or confidential nature does not make the telephone conversation a private conversation in the relevant sense.

8. The appellant also argues that there is nothing in the Betfair recording from which it could be inferred that the caller knew that the telephone conversation was being recorded or that any other party was or could be listening.

9. Even leaving aside that in creating an account with Betfair, the appellant agreed to terms and conditions that included a term that Betfair reserved the right to record all telephone conversations to and from Betfair, it is not at all unusual for telephone communications of a commercial nature to be recorded. Frequently a telephone conversation is prefaced by a recorded message advising that the ensuing conversation is being or may be recorded. However, the absence of such a message does not, in my view, objectively viewed, amount to a circumstance that may reasonably be taken to indicate that either the bettor or the gambling telephone operator would desire the words to be listened to only by themselves. 

10. I apprehend no error in the learned trial judge's ruling. Ground 1 of the notice of appeal fails, and grounds 2 and 3 do not arise for consideration.

Ground 4 – the "Mr Guilty" slip

1. The part of the learned trial judge's summing-up to the jury that is said to give rise to a miscarriage of justice was during the course of his Honour explaining to the jury the elements of the crime charged as set out in his written memorandum he had given to it.

2. His Honour was explaining to the members of the jury the matters of which they had to be satisfied beyond reasonable doubt before they could find Mr Dimech guilty. His Honour accidentally stumbled and transposed the words "Mr Dimech" and the word "guilty".

3. The passage, in which the learned trial judge was obviously speaking to, if not reading from, his memorandum, is as follows:

   "So, in paragraph 4, I list the things that the Crown need to prove before you may find Mr Guilty - Mr Dimech, guilty of the crime of dishonestly acquiring a financial advantage; that is the crime that he's charged with in the six final counts relating to the Commonwealth Bank, and each of these items has to be proved beyond a reasonable doubt. If there's one that's not proved beyond a reasonable doubt, then your verdict has to be not guilty."

4. I have listened to the recording of that part of the learned trial judge's summing-up. It was plainly an accidental transposition of words. It might be said to be somewhat akin to the nature of the mistake that the Reverend William Spooner was notoriously known to make.

5. The mistake was corrected in an augenblick (a word taken into English usage which once won 4th place in a contest for the most beautiful German word for the reason that, although it means the blink of an eye, the word is too long for its meaning).

6. A slip of such a nature, when listened to in real time, could not by any dint of imagination have prejudiced the jury against the appellant, or caused the jury to believe that that judge either thought or was implying that the appellant was guilty.

7. A similar view was taken by the Ontario Court of Appeal in R v Wilson (2013) 107 WCB (2d) 4 in respect of a submission on appeal that related to what was, for present purposes, an identical slip by the trial judge in that case. The Court said:

   "We see no merit to this submission. The jury, as reasonable intelligent people, would take the comment for what it clearly was – an inadvertent misstatement quickly corrected, probably before it was even noticed."

8. Counsel for the appellant, Mr Rinaldi, submitted that that case can be somehow distinguished on the basis that the appeal was based on a claim of apprehended bias on the part of the trial judge. That is not a material distinction. Had counsel for the appellant in the present case moved for a mistrial, as did counsel in Wilson, the only reason that could have been advanced for discharging the jury was that the learned trial judge had formed a view that the appellant was guilty. Such a submission could only be properly characterised as akin to a claim of bias.

9. Counsel for the respondent, Ms Denton, has also quite rightly pointed out that shortly prior to that point in his summing-up, the learned trial judge had given the usual warning to the jury about not taking cues from anything said in a judge's summing-up.

10. His Honour said this:

    "If I reveal what I think about the facts or if you think I've given some indication of a personal view in relation to any point, well, it's still your duty to make up your own minds independently of me in relation to any factual question in this case; you're the judges of the facts, so it's your duty to reach your own independent conclusions about the facts."

11. Whether or not a substantial miscarriage of justice has occurred in the present case may be answered, in my view, by reference to the formulation of Brennan J (as he then was) and Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365, where his Honour said at 371–372:

    "Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen (1986) [1986] HCA 26; 160 CLR 392 at 412-413." (Emphasis added.)

    (See also Jago v District Court (NSW) (1989) 168 CLR 23 at 56-57 per Deane J; Baini v The Queen (2012) 246 CLR 469 at [25]-[31] and Andelman v The Queen (2013) 38 VR 659 at [101]-[104].)

12. I am of the view that it can confidently be said that the appellant did not lose as a result of the learned trial judge's slip of the tongue, "a chance which was fairly open to him of being acquitted".

13. And I am of the view that it can be said with equal confidence that had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused.

14. I also point out that, at the end of the trial judge's summing-up, counsel were asked by his Honour whether they had any submissions. Counsel for the appellant answered that he had no submissions.

15. In Chamberlain v The Queen (1983) 72 FLR 1, Bowen CJ and Forster J said at 13:

    "The failure of counsel at the trial to seek a redirection, some amendment or addition to the summing up and his failure to object to the admissibility of evidence, cannot lead inevitably to the dismissal of an appeal based on alleged imperfections in the summing up or the wrongful admission of evidence. It is nevertheless a relevant factor to be considered. If experienced senior counsel at the trial is not moved to seek redirection or to object to the admissibility of evidence, his failure to do so carries a strong suggestion that in the atmosphere of the trial at which he was present, no miscarriage of justice occurred or was likely to occur because of matters later complained of."

16. In my view, ground 4 borders on frivolous. There is no substance to the appellant's submissions that a miscarriage of justice occurred. The ground must fail.

Ground 5 – was the sentence excessive?

1. The appellant submits that the sentencing judge gave insufficient weight to the appellant's lack of prior criminal history and his efforts to make restitution, and that, accordingly, the sentence was manifestly excessive in all the circumstances.

2. As to the first limb of that submission it is contended that the appellant was without any relevant prior convictions apart from minor traffic matters and a conviction on a charge of "fail to appear".

3. It is argued that, despite that record, the sentencing judge characterised the appellant's prior criminal history as containing "no significant prior convictions", and that such a characterisation was wrong because the appellant's criminal history contained no offences of dishonesty.

4. Accordingly it is submitted, that incorrect characterisation was a factor that caused his Honour to impose a sentence that was manifestly excessive.

5. I reject that submission of specific error. It is not inappropriate or wrong to describe the appellant as having no significant prior convictions. It is a turn of phrase that is commonly used in sentencing to indicate that a defendant has no prior convictions that need to be taken into account in arriving at penalty. The learned sentencing judge might equally have said that the appellant had no relevant prior convictions.

6. The other specific error that is alleged is that the appellant had offered to make full restitution through the sale of his home, and that the learned sentencing judge should have placed greater weight upon the appellant's efforts to make restitution by providing an irrevocable authority prior to sentencing which would bring about restitution when settlement of the sale occurred on 20 November 2015.

7. The learned sentencing judge was well aware of the appellant's attempts to make restitution. Indeed his Honour tailored the sentence he imposed to secure the effecting of the appellant's desire in that regard. His Honour also noted that a major mitigating factor that is sometimes present, but was not in the appellant's case, was remorse.

8. There is nothing to my mind on reading his Honour's comments on passing sentence that suggests that a specific error in relation to restitution led to a heavier sentence than might otherwise be the case. If there was any such error it would be revealed if the sentence imposed was manifestly excessive.

9. As to the question of manifest excess, the appellant submits that research reveals that between the years 1989 and 2000, 44 sentences were imposed in cases of dishonestly acquiring a financial advantage, and that the maximum sentence imposed was 48 months' imprisonment.

10. The appellant submits that the majority of sentences were in the range of six months' and two years' imprisonment, and the median sentence was nine months. Only four sentences in the analysed period resulted in a sentence of greater than two years' imprisonment.

11. The appellant interpolates that 90% of the sentences were of less than two years' duration, and submits that the appellant's offending did not put him in the upper end of the range of sentences for this crime.

12. The appellant specifically relies on the sentence in Williams v Tasmania [2014] TASCCA 2 where the theft over a period of four years of $68000 by an employee in a position of trust attracted a sentenced of ten months' imprisonment which was held to be within the range of appropriate sentences.

13. The appellant submits that, as he was not in a position of trust, and his offending was of a lesser quantum and duration, the sentence imposed upon him was manifestly excessive by comparison.

14. Single sentence comparisons are usually not helpful in determining the question of manifest excess or inadequacy, and in relation to Williams, I accept the respondent's submission that the case can be distinguished as Ms Williams was charged with one count of stealing and one count of fraud as a clerk or servant, was motivated by financial pressure, was the sole carer of two children, made admissions to her employer and Tasmania Police, pleaded guilty, showed remorse, and repaid the money promptly.

15. In my view, the respondent has in the written submissions filed, fairly and accurately summarised the mitigating and aggravating features of the present case.

16. As to mitigating features, the respondent submits:

    "The mitigating factors can be summarised as follows:

    ?         The Appellant has no significant prior convictions;

    ?         The Appellant is relatively young ;

    ?         The Appellant has a good employment record;

    ?         The Appellant has the support of his mother; and

    ?         The capacity and desire to make restitution."

17. The respondent also notes the absence of the mitigating features of a guilty plea and expression of remorse.

18. As to aggravating features, the respondent submits:

    "The aggravating features can be summarised as follows:

    ?         Large amount;

    ?         Multiple criminal acts over an extended period of time ;

    ?         Sophisticated and not easily detectable;

    ?         The Appellant continued to offend even after the offending was detected; and

    ?         The Appellant's conduct was not due to financial need."

19. I accept the respondent's submission that a lack of prior convictions, previous good character and a capacity and desire to make restitution is not uncommon for this type of crime, and that the capacity and desire to make restitution does not outweigh the need for denunciation and general deterrence.

20. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, said at [8]:

    "As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

21. I note the appellant's submissions as to the range of sentences passed by this Court for the crime of dishonestly obtaining a financial advantage. However, as noted above, sentencing judges must be accorded a wide measure of latitude.

22. In Harland-White v The Queen [1998] TASSC 1, Underwood J (as he then was) said at 3 of his reasons for judgment:

    "However, there is no rule of law that requires a sentence to fall within the range of sentences previously imposed for any particular crime. The sentencing discretion is unfettered by statute. The only requirement of the common law governing the exercise of that discretion is that all the relevant considerations must be taken into account and all irrelevant considerations must be excluded. A relevant matter is that there must be consistency in punishment. (Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611). Punishment is imposed for criminal conduct in the commission of a crime or crimes. The seriousness of the conduct is more important than the name of the crime or crimes committed by such conduct. See R v Williscroft [1975] VicRp 27; [1975] VR 292 at 299; R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 185. Of course, the range of sentences passed for similar crimes is a relevant matter but no so-called 'tariff' should be applied inflexibly. Any standard range is intended to accommodate the 'ordinary run' of cases but that does not mean that sentence for the same crime must always fall within the range, for that overlooks the importance of the criminal conduct in each case. In this respect I would adopt the following passage from the judgment of Cox J in R v King (1988) 34 A Crim R 412 at 414 - 415. It was subsequently approved by a differently constituted Court of Criminal Appeal (SA) in R v Nixon (1993) 66 A Crim R 83 at 88 – 89."

1. To my mind, in this case, having regard to the mitigating and aggravating factors set out above, and taking into account in particular the appellant's persistence in offending even after he had been detected, the absence of a plea of guilty and a lack of remorse, error is not apparent. It might be said that the sentence is heavy or even harsh, but it cannot be said, in my view, that it is "unreasonable or plainly unjust" to the extent that it is manifestly excessive.

2. Ground 5 fails.

Disposition

1. It follows from all that I have said that I would dismiss the appeal. 

   File No CCA 486/2015

SHAUN MATTHEW DIMECH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
2 March 2016

1. I have had the advantage of reading the reasons of Estcourt J in draft form. I agree that, for the reasons given by his Honour, the appeal should be dismissed. I also agree with the additional comments of Porter J, although I need not express a view about his Honour's description of the trial judge's sentence as "a heavy one".