DPP (Cth) v Cornish
[2012] VSCA 45
•19 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0229
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | |
| Appellant | |
| v | |
| BRIAN ROBERT CORNISH | Respondent |
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JUDGES: | NEAVE and HARPER JJA and HOLLINGWORTH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2012 | |
DATE OF JUDGMENT: | 19 March 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 45 | |
JUDGMENT APPEALED FROM: | DPP v Cornish (Unreported, County Court of Victoria, Judge Sexton, 26 August 2011) | |
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CRIMINAL LAW – Director’s appeal – Sentence – One charge of conspiring to dishonestly cause a risk of loss to a Commonwealth entity (Australia Post) and four charges of dishonestly causing a risk of loss to Australia Post – Criminal Code (Cth), ss 135.1(5) and 135.4(5) – Pleas of guilty – Total effective sentence of three years’ imprisonment – Whether sentencing judge erred: (i) in her description of charge one, (ii) in finding the respondent trusted his co-conspirators, (iii) in failing to find that the respondent knew that the conduct would cause actual loss to Australia Post and (iv) in finding that the respondent did not benefit from the offence – Whether sentencing judge erred in her use of evidence given by a psychologist – Role of respondent’s willingness to co-operate as a mitigating factor – Whether sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D J Lane | Office of Public Prosecutions (Cth) |
| For the Respondent | Mr L C Carter | Slades & Parsons |
NEAVE JA
HARPER JA
HOLLINGWORTH AJA:
The plea and the sentences which followed
This is an appeal brought by the Commonwealth Director of Public Prosecutions against sentences imposed in the County Court of Victoria on 26 August 2011. The respondent pleaded guilty to one charge of conspiring to dishonestly cause a risk of loss to a Commonwealth entity, the Australian Postal Corporation (‘Australia Post’), contrary to sub-s 135.4(5) of the Criminal Code (Cth) and to four charges of dishonestly causing a risk of loss to Australia Post contrary to sub-s 135.1(5) of the Code. The respondent was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Conspire to dishonestly cause a risk of loss to a Commonwealth entity 10 years’ imprisonment and/or $66,000 fine 2 years 7 months Base sentence 2 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 3 months To be served concurrently with Counts 3-5 but cumulatively upon Count 1 3 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 5 months To be served concurrently with Counts 2, 4 and 5 but cumulatively upon Count 1 4 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 5 months To be served concurrently with Counts 2, 3 and 5 but cumulatively upon Count 1 5 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 1 month To be served concurrently with Counts 2-4 but cumulatively upon Count 1 Aggregate Sentence: 3 years’ imprisonment Non-Parole Period:
N/A – see other orders below
Pre-sentence Detention Declared: N/A 6AAA Statement: 6 years’ imprisonment with a non-parole period of 3 years and 3 months. Other orders:
The respondent is to be released after serving 12 months’ imprisonment on a recognizance in the sum of $500, to be of good behaviour for a period of 2 years.
The appellant relies on the following grounds of appeal:
(a)The sentencing judge misdescribed the offence the subject of Charge 1 (Ground 1).
(b) The sentencing judge erred, in relation to Charge 1:
(i)in finding that the respondent trusted his co-conspirators and accepted what they gave him by way of inadequate documentation and did not question it;
(ii)in failing to find that, during the period of the conspiracy, the respondent knew that the lodgement of mail by Mailing Advantage (a company in which the co-conspirators were the sole directors) was actually causing loss to Australia Post. (Ground 2).
(c)The sentencing judge erred, in relation to Charge 1, in finding that the respondent did not benefit from the offence (Ground 3).
(d)The sentencing judge erred:
(i)in relation to each charge, in accepting the report and oral evidence of forensic psychologist Patrick Newton without qualification and without referring to the prosecution’s criticism of it;
(ii)in relation to Charge 1, in finding that the respondent’s offending came about as a direct result of his personality disorder, and in holding that the respondent’s moral culpability and the need for denunciation and general and specific deterrence were moderated accordingly;
(iii)in relation to Charge 1, in finding that the respondent’s offence continued over a number of years because of his personality disorder;
(iv)in relation to Charges 2-5, in finding that the respondent’s offending occurred in the context of his inability to challenge his co-conspirators, his inability to cope with the increasing lodgements of mail and the increasing complexity of the situation;
(v)in relation to Charges 2-5, in finding that the respondent’s personality disorder is the only likely explanation for his offending, and in holding that the respondent’s moral culpability and the need for denunciation and general and specific deterrence were moderated accordingly (Ground 4).
(e)The sentencing judge erred in treating as a mitigating factor that the respondent was willing to co-operate with the prosecution and give evidence against his co-conspirators, but that because of his disorder he would be unable to give evidence in a coherent way (Ground 5).
(f)The sentence imposed on the respondent was manifestly inadequate in that:
(i)the sentence imposed on each charge was manifestly inadequate;
(ii)the period of imprisonment ordered to be served by the respondent before his release upon recognisance was manifestly inadequate (Ground 6).
Background
The basis for Charge 1 was an alleged fraud which, according to the Crown, exposed the Commonwealth to the risk of loss. The respondent admitted he engaged in it. His two accused co-offenders, Ross Simpson and Greg Keefe, have pleaded not guilty, and await trial. The respondent maintains, and the Crown accepts, that he was willing to testify against the other two. He will, nevertheless, not be called. The appellant is of the view that he is not capable of giving coherent and accurate evidence. At the same time, the appellant maintains that the respondent’s willingness to give evidence is not something which in the circumstances the sentencing judge ought to have taken into account in his favour. Hence ground 5 of the grounds of appeal.
The respondent and his co-accused were each former long-term employees of Australia Post. It was through their common experience with that organisation (and, in the case of the respondent, its predecessor, the Postmaster-General’s Department) that they acquired an extensive knowledge of Australian postal practice. That, too, was how they became acquainted, though the respondent and the other two were never friends; and he did not know them, nor they him, well.
By December 2003, each had employment outside Australia Post, albeit still in the postal industry. The respondent had been employed for some seven years as manager of the licensed post office (‘LPO’) at Hughesdale, a Melbourne suburb. For their part, Simpson and Keefe had become the directors of a bulk mailing business called Mailing Advantage. It had its headquarters in Ringwood, another Melbourne suburb.
When a social occasion in Ringwood threw the three together before Christmas 2003, Simpson and Keefe took the opportunity to engage the respondent in what the latter claims was a brief talk about business. They told him, he says, that they could direct some of their bulk mail through his LPO. In theory, this would generate commissions for the licensee, a local pharmacist. It might be expected that the pharmacist would be happy about this, with consequent flow-on benefits to the respondent. To an outsider, unaware of the full circumstances, it would have been no surprise that the latter was happy to acquiesce.
At the outset of the plea hearing, the prosecutor tendered, as Exhibit A, a summary of the facts upon which the Crown relied. The tender was unopposed. The summary records, among other things, that the respondent was employed by Australia Post between 11 December 1967 and 20 August 1997. Later that year he was appointed manager of the Hughesdale LPO, a position which, according to the licensee, he filled proficiently and knowledgably. The licensee added that the respondent also ‘appeared to have extensive knowledge of bulk mail procedures’.[1]
[1]Summary of facts, [23].
It is reasonable to assume that the respondent asked himself what legitimate advantage the proposal put to him by the directors of Mailing Advantage would bring to their organisation. It is also reasonable to assume, given his 37 years’ employment in the postal service, that in considering this question the respondent would have concluded that in all probability the Hughesdale LPO could offer nothing which Mailing Advantage could not obtain to better advantage elsewhere. His suspicion about the motives of Simpson and Keefe should therefore have been aroused. In particular, he should have adverted to the strong possibility that Mailing Advantage would have available to it more direct links with Australia Post, and the additional benefits which would flow from those links, than anything which the Hughesdale LPO could provide. This in turn should have created some concern about the motives of Simpson and Keefe, and led him to conclude that there was a risk of loss to Australia Post were the proposal made to him at Ringwood in December put into effect. According to the summary of facts, ‘it is common knowledge within the mailing industry that LPOs are not suitable places for lodging bulk mail as they do not have the staff, time, technical knowledge or storage facilities [for] … bulk mail lodgements.’ Nor did they have the specialised equipment of larger postal outlets.
So, for example, the respondent’s LPO could not accept the electronic lodgement of mailing statements. These statements were required by Australia Post because they were designed to give a detailed description of the items included in each consignment of bulk mail so that postage and other charges could be accurately assessed. Electronic lodgement had many advantages over the manual alternative. Until the switch to Hughesdale LPO on 11 February 2004, Mailing Advantage lodged virtually all its mail by means of this service.
In addition to this, Australia Post provided a free collection service from Mailing Advantage’s Ringwood site to the Dandenong Letters Centre (‘DLC’).
Even if the respondent was aware neither of the collection service nor the capacity of the DLC to accept electronic lodgement, he should have considered with care the proposition put to him at Ringwood in December 2003. It may be inferred that someone of his experience would know of the existence of the DLC, and that all bulk mail lodged with that facility was subject to strictly enforced assessment and quality control.
Any suspicion which the respondent had before February 2004 would have been confirmed with the first delivery to Hughesdale of a Mailing Advantage consignment. From the first, the regime in place at Hughesdale LPO for bulk mail from Mailing Advantage lacked the controls which any proper system of dealing with such consignments must have had. Other bulk mail received by the respondent and his staff was required by them to be accompanied by the prescribed documentation, accurately compiled. The respondent knew the rules; he simply did not enforce them against Mailing Advantage.
The respondent received the first consignment of bulk mail from Mailing Advantage on 11 February 2004. It was delivered by Simpson. Contrary to the requirements of Australia Post, the consignment was not accompanied by any mailing statement. The respondent accepted the lodgement, and a cheque payable to Australia Post, merely on Simpson’s assertion about the number and type of articles lodged. Nor did the respondent inspect or count the mail, or weigh it, or make any other attempt to assess it for postage.
By his plea of guilty to the first charge, the respondent admitted that the conspiracy began no later than the date of the first delivery.
From March 2004 to 26 March 2008 the practice initiated with the first delivery was repeated on a regular basis, at times twice a day. The respondent told the police that he never counted the mail delivered in bulk from Mailing Advantage, that he did not ‘do any checking’, and that he could not recall ever receiving ‘a proper mailing statement’; all he got was ‘a bit of paper with the ... figures on it and I just put it ... through as per his figures’. On occasions, Simpson or Keefe simply loaded tubs and trays of mail directly into an Australia Post van parked outside the LPO. Many lodgements were not accompanied by any payment, or otherwise brought to account at all. About once per week, Simpson or Keefe would give the respondent a sum of money (typically a pre-written cheque, but sometimes in 2004 and 2005 in cash), with a handwritten number purporting to state the number and type of postal articles lodged and a calculation of the postage. The calculations invariably grossly understated the applicable postage, as would have been apparent from even a cursory assessment of the volume and type of mail. None of these handwritten notes was retained. The respondent said he ‘just took’ Simpson and Keefe ‘on face value and thought ... they wouldn’t rip me off.’
The respondent’s reference to being ripped off is odd, but irrelevant. It is true that the record of the interview which the police conducted with the respondent contains one reference to the respondent ‘getting a few dollars out of it’ [that is, the dealings he had with Simpson and Keefe]. Moreover, by ground 3 of the grounds of appeal the appellant contends that her Honour erred in finding that the respondent did not benefit from his association with Mailing Advantage. But the benefits to which ground 3 relates do not include any direct monetary reward, and the benefits which are so related are not ones in respect of which any suggestion of being cheated arises.
Australia Post, however, was indeed being ‘ripped off’. As the respondent told the police, he could say (with what he ascribed to something like the benefit of hindsight; the respondent was not particularly articulate in his conversations with the police) that the money received by him from Simpson and Keefe ‘didn’t match up’ with the through-put of mail. And he estimated that only about half of that mail was accounted for.
The loss fell on Australia Post. It was calculated to be approximately $3,000,000. Hence the first of the charges to which the respondent pleaded: the charge of conspiring to dishonestly cause a risk of loss to a Commonwealth entity, contrary to sub-s 135.4(5) of the Criminal Code. By that provision, a person is guilty of an offence if:
(a)the person conspires with another person to dishonestly cause a loss, or dishonestly cause a risk of loss, to a third person; and
(b)the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
(c) the third person is a Commonwealth entity.
The four remaining charges were laid under s 135.1(5) of the Code, which provides that a person is guilty of an offence if:
(a)the person dishonestly causes a loss, or dishonestly cause a risk of loss, to another person; and
(b)the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
(c) the other person is a Commonwealth entity.
These offences must be seen in context. By March 2005, the Hughesdale LPO had, for just over 12 months, been a preferred point at which bulk mail from Mailing Advantage entered the Australia Post system. Over that period, the respondent as manager of Hughesdale had received much bulk mail from this source. From the first, he decreed that this aspect of the business of the Hughesdale LPO warranted his exclusive attention. Although other staff were available to be called upon, they were kept at a distance from this aspect of the LPO’s affairs.
Consistently with this, and with his plea, the respondent must have been aware from February 2004 that Simpson and Keefe intended to use the Hughesdale LPO to avoid meeting their obligations to Australia Post. He spoke to the police about ‘hindsight’ and ‘negligence’ and turning ‘a blind eye’, and confessed that he ‘probably should have known’. In other words, at the very least he shut his eyes to the obvious because he did not want to know what he already knew. Even were he unaware of the arrangements in place before February 2004 by which Australia Post carried the Mailing Advantage bulk mail free to the DLC, and even were he not aware that the DLC had facilities for the electronic receipt of mailing statements which he could not offer, he did know that Hughesdale was 23 kilometres from Ringwood, that rather than have members of their staff do the job, Simpson or Keefe would frequently themselves drive a Mailing Advantage truck to his LPO to effect their deliveries (taking an hour of their time each way through traffic), and would then provide him with irregular paperwork and payments that came nowhere near corresponding with either the quantities being delivered or the requirements of Australia Post. He also knew from the first delivery that he had made no attempt to independently count and otherwise assess the mail which had arrived, and that his own records could therefore not be accurately maintained.
By March 2005, therefore, the respondent was immersed in Mailing Advantage’s fraudulent scheme. He claims that he was and is so socially inept that he was powerless to resist the pressure to play his part; and that this was especially so after the first delivery – certainly the first few deliveries – because the trap had then closed, leaving him no avenue of escape until, in March 2008, Australia Post sent him an email describing tighter methods of control. Despite his claim of earlier powerlessness, this enabled him to summon the courage to tell Simpson and Keefe that their then current regime of deliveries could not continue. He does not allege that, in the meantime, either Simpson or Keefe or anyone else threatened him, or otherwise sought by coercion to compel his participation in the conspiracy.
There is a further problem with this narrative. Hughesdale LPO had banking facilities. This gave the respondent the ability to use Australia Post’s money to his personal benefit. On 16 March 2005, the respondent took a cheque made out by Mailing Advantage to Australia Post, and paid it into his personal account with a credit union. Seven further similar cheques were either paid into that account, or to a bank account in the name of his son, or for the payment of a personal or family debt.
In July 2005, a new pattern emerged. On 27 July, the respondent opened an account with the Bendigo Bank into which, between July 2005 and March 2008, he deposited 46 Mailing Advantage cheques which had been made out to Australia Post. Between those dates a further two cheques found their way into his credit union account, while yet another was used to pay another personal or family debt. When, after the police became involved and a final accounting took place, these 49 cheques were added to the initial eight to make a total of 57; and $124,555.52 had by these means been misappropriated.
The personality of the respondent
The respondent is an unusual man, a circumstance which greatly influenced the sentencing judge in determining the sentence which her Honour thought appropriate. Some evidence of his idiosyncrasies may be found in the fact that, during the period of his offending, a total of $11,693.90 of the misappropriated funds was paid back to Australia Post. The respondent has not given a satisfactory explanation either for the original misuse of these moneys, or for what was - in effect - their repayment in part.
An attempt to provide an explanation for the respondent’s dealings with Mailing Advantage has been made by Patrick Newton, a forensic and clinical psychologist. The respondent attended his rooms twice (on 1 March 2011 and the following 18 April) for two extended clinical consultations. Mr Newton then prepared a report dated 30 June 2011, and gave evidence on the plea.
In his report, Mr Newton described the respondent as being pathologically introverted, and with a paucity of social connections. This was not because he shunned the company of others; on the contrary, his yearning for that company made him prey to those who wished to exploit the vulnerability to which this yearning exposed him. The respondent recognised that he ‘had done the wrong thing’, but he was and is:
… in the grip of significant psychological difficulties [which] compromise his social judgment in an ongoing fashion … [and] [u]ltimately … provide the framework in which his offending occurred.
This opinion was echoed in Mr Newton’s oral evidence. He said in his evidence in chief that friends who the respondent ‘had known and trusted for some time … took advantage of him’, leaving him ‘feeling overwhelmed by the demands’ although he knew that ‘it’s not quite the way it should be’. He thus became ‘trapped in this situation and [did] not know how to extricate himself from it.’
Support for the conclusion that the respondent was and is generally inept came from the evidence of his wife and his step-daughter. Mrs Cornish painted a picture of a man who could only function with her support. He was, she said, so dependent upon order in his life that he could not bring himself to change his breakfast cereal. He left home for work at 7.30 each morning, and arrived home at 6.20. Every day. He could only open a bank account with her support. His children, as his step-daughter told the judge, micro-managed him almost as much as his wife. Indeed, the joint effect of the evidence of the two women in the household was that, when the respondent was not at work, Mrs Cornish would give the respondent written instructions about what was to be done during the day, while son and step-daughter almost reversed the roles of parent and child.
The grounds of appeal and the reasons for sentence
Her Honour began her reasons for sentence by referring to the respondent as having ‘pleaded guilty to one charge of conspiring to dishonestly cause loss to a Commonwealth entity’.[2] This was an inaccurate description of the offence, which was that he conspired with Simpson and Keefe to dishonestly cause a risk of loss to a Commonwealth entity. But, although she made another, albeit passing, reference to the offence without referring to risk,[3] she later stated, with sufficient accuracy, that the respondent ‘agreed with the others to receive their mail, knowing or believing that there was a substantial risk of a loss occurring to Australia Post.’[4]
[2]Reasons for sentence, [1].
[3]Ibid [3].
[4]Ibid [19].
The first ground of appeal is based upon the initial inaccuracy. It is submitted that it amounted to a failure by her Honour ‘to analyse sufficiently the precise nature of the offence’; and this in turn resulted in ‘the error alleged in ground 2’.
A ground of appeal which amounts to no more than an allegation that the asserted fault led to another failing and hence to another ground of appeal is not a ground of appeal at all. In this case, ground 2 stands or falls on its own, whether or not the allegation in ground 1 is made good; and ground 1 cannot succeed as an independent ground.
Ground 2 is that the sentencing judge erred, in relation to Charge 1, in two ways. First, her Honour found that the respondent trusted his co-conspirators and so accepted on trust what they gave him by way of inadequate documentation and did not question it. Secondly, she failed to find that, during the period of the conspiracy, the respondent knew that the lodgement of mail by Mailing Advantage at the Hughesdale LPO caused loss to Australia Post.
Her Honour did accept that the respondent trusted Simpson and Keefe.[5] This finding was in our opinion not open to her. An element of trust may have been retained between the interstices of doubt which must surely have attended the respondent’s assessment of the motives of Simpson and Keefe following their approach at Ringwood in December 2003. If so, that residue of trust could not have survived the arrival of the first consignment of bulk mail in February the following year. Indeed, her Honour found, correctly in our view, that the conspiracy of which Australia Post was the victim commenced with that arrival. As the judge herself said in her reasons for sentence, the respondent knew that the mail which came to him on 11 February 2004 ‘flowed from the conversation that occurred in December 2003 between [the respondent], Keefe and Simpson’. He also knew ‘that the lodgement did not comply with Australia Post’s requirements’ and knew or believed ‘that there was a substantial risk of a loss occurring to Australia Post.’[6]
[5]Reasons for sentence, [21].
[6]Ibid [19].
These latter conclusions destroy the basis for the earlier finding that the respondent’s offending occurred because he trusted Simpson and Keefe. But that earlier finding seems to have influenced her Honour’s assessment of the respondent’s moral culpability. Any such influence was, we respectfully think, unjustified.
By contrast, we agree with her Honour that the respondent accepted what Simpson and Keefe ‘gave him by way of inadequate documentation and did not question it.’ The judge did not – as ground 2 of the grounds of appeal would have it – err in coming to this conclusion. The respondent acted in exactly the way the judge described. But (and here we may differ from her Honour) he responded in this way not because he trusted his co-accused; he accepted what was given to him by Simpson and Keefe despite the fact that he did not think that they were trustworthy, and he did not ask questions of them because he already knew the answers. His moral culpability arises because, knowing the answers, he failed to act honestly in response.
Ground 2(a) is in our opinion made out.
The second contention in ground 2 is that her Honour failed to find that, during the period of the conspiracy, the respondent knew that the lodgement of mail by Mailing Advantage at the Hughesdale LPO ‘was actually causing a loss to Australia Post.’
In our opinion, the reasons for sentence do not sustain this allegation. The judge may not have said so explicitly; but as we read her reasons, she did proceed on the basis that the respondent knew that the conspiracy to which he was a party was depriving Australia Post of very significant sums of money.
In our opinion, ground 2(b) has not been made out.
Ground 3 is that the sentencing judge erred, in relation to Charge 1, in finding that the respondent did not benefit from the offence. This ground is without substance. We have noted the respondent’s concession that he was ‘getting a few dollars out of’ the arrangement with Mailing Advantage. Apart from that benefit, which was not relied upon in support of this ground, he received only some tickets to the football, a ticket to a popular concert, and the use of an e-Tag. These were benefits of trifling value when set against the amount by which Australia was defrauded. The law does not (at least, not in cases of this kind) concern itself with trifles.
Ground 4 is a ground with many parts. Its first contention is that her Honour erred in accepting the report and oral evidence of Mr Newton without qualification and without referring to the prosecution’s criticism of it. The appellant submits that, in relation to Charge 1, this resulted in two erroneous findings. The first was that the respondent’s offending came about as a direct result of his personality disorder, and that the respondent’s moral culpability and the need for denunciation and general and specific deterrence were moderated accordingly. The second was that the respondent’s offence continued because of his personality disorder.
As we read her Honour’s reasons for sentence, she did accept much of the evidence of Mr Newton. We think that this was a mistake. This is, in part, because the psychologist inaccurately described the respondent’s personal relations with Simpson and Keefe as being much closer than they were in fact. For example, Mr Newton seemed unaware that the respondent only met Keefe for the first time at the December 2003 social function. Nor did he bring into measurable account either the respondent’s position as manager of the Hughesdale LPO or his membership of Apex and Lions clubs. He made no mention of the former, and the nearest he got to the latter was to acknowledge that the respondent was active in his local church and Lions club. Neither unacknowledged circumstance seems to match a man who is pathologically introverted, and with a paucity of social connections. In fact, the respondent had served as president of Sunshine Apex, a position which, according to the evidence of a fellow member (Mr Trevor Hobbs), was reached after sitting on the board of management and working his way up over four or five years, handling the easier portfolios before tackling those which were more difficult.
Mr Hobbs also gave evidence that the respondent was a member of a social group to which Mr Hobbs also belonged. The group ‘used ... to go out for dinner quite often’.
Another problem with Mr Newton’s evidence is that none of it offers any explanation for the respondent’s dishonest misappropriation of the cheques. This was a subject to which Mr Newton gave no substantive attention in either his report or in his evidence in chief, although he knew of the misappropriation. When in cross-examination he was confronted by this omission, he acknowledged that the respondent’s ‘significant psychological difficulties’ could neither provide a framework for these offences, nor be explained by a desire to help his friends.
In her Honour’s opinion, the respondent does suffer from the personality disorder ascribed to him by Mr Newton. This, she thought, disabled him from removing himself from the fraudulent scheme operated by Mailing Advantage.[7] His moral culpability was diminished accordingly.
[7]In [20] of her reasons for judgment, the judge said that the respondent continued to be a party to the fraud because of his ‘complete inability to do anything about it.’
In our opinion, this conclusion was not open on the evidence. The respondent may be in the grip of a personality disorder; and we accept that he finds it difficult to say no when no should be said. But it does not follow that he was completely unable to do anything about the circumstances with which Simpson and Keefe confronted him. Nor does it much diminish his moral culpability. We assess that culpability in relation to the fraud being principally perpetrated by Simpson and Keefe as being far higher than did her Honour.
When in her reasons for sentence the judge turned to the four charges involving the misappropriated cheques, she held that ‘this aspect to [the respondent’s] offending is also related to [his] personality disorder. It seems the only likely explanation.’
We respectfully disagree. It seems to us that Mr Newton came closer to the truth when he said in cross-examination that the respondent’s significant psychological difficulties could neither provide a framework for these offences, nor be explained by a desire to help his friends.
In our opinion, the explanation for the misappropriated cheques is dishonesty or greed, pure and simple. The respondent opened a personal bank account. He used the banking facility in the Hughesdale LPO to do so. He then systematically deposited cheques made out to Australia Post into that account (among others). As he did, he also systematically controverted his wife’s evidence that he could only open a bank account with her assistance, and that he is generally inept.
In our opinion, ground 4 is made out.
Ground 5, however, is not. A willingness to co-operate with the authorities may be a mitigating factor if it is an indication of remorse; and this may be so even if that willingness does not translate into a capacity (as measured by those authorities) to actually and meaningfully do so. In this case, we are of the opinion that her Honour was justified in regarding it as mitigatory.
Ground 6 is that the sentence imposed upon the respondent is manifestly inadequate; but since in our opinion ground 4 is made out, there is no need to consider this ground. The appeal must be allowed and the respondent must be re-sentenced.
The respondent’s part in the Mailing Advantage fraud related only to the Hughesdale LPO. His co-accused might be sentenced, if they are sentenced at all, on the basis that they were involved with other postal outlets as well. In addition, the respondent was, as her Honour found, initiated into the fraud by those who conceived it and who profited by it, while (save to a trifling extent) he did not.
In our opinion, the sentence of three years’ imprisonment imposed by her Honour was inappropriate. We would resentence the respondent to an aggregate sentence of three years six months’ imprisonment, and not suspend any of it. We do accept that what would otherwise be a yet sterner punishment should be ameliorated, albeit to an extent less than her Honour allowed, to account for the special characteristics of the respondent’s personality. As her Honour said, they do open the door to considerations of mercy. In our opinion, those considerations are adequately reflected in the relatively short non-parole period which we propose.
We would resentence the respondent in accordance with the table below:
Charge Offence Maximum Sentence Commencement 1 Conspire to dishonestly cause a risk of loss to a Commonwealth entity 10 years’ imprisonment and/or $66,000 fine 2 years and 7 months 19 March 2012 2 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 5 months 19 October 2014 3 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 6 months 19 March 2015 4 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 6 months 19 March 2012 5 Dishonestly cause a risk of loss to a Commonwealth entity 5 years’ imprisonment and/or a fine of $33,000 3 months 19 March 2012 Aggregate Sentence: 3 years and 6 months’ imprisonment Non-Parole Period: 2 years and 4 months 6AAA Statement: 7 years’ imprisonment with a non-parole period of 4 years and 3 months.
The Court will order that the records of the Court note the period of pre-sentence detention served by the respondent.
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