Dubois v The Queen

[2005] HCATrans 109

[2005] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2004

B e t w e e n -

FRANCIS CHARLES DUBOIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 10.36 AM

Copyright in the High Court of Australia

MS C.M. O’CONNOR:   May it please the Court, I appear with my learned friend, MR M.J. LUTT, for the applicant.  (instructed by Legal Services Commission of SA)

MR P.R. BREBNER, QC:   May it please the Court, I appear with my learned friend, MR T.J. HEFFERNAN, for the respondent.  (instructed by Director of Public Prosecutions (SA))

GUMMOW J:   Thank you.

MS O’CONNOR:   Your Honours, the applicant claims there are four reasons why leave should be given in this matter, and I will summarise those reasons and then go through the facts in the matter that would assist the Court in the decision.

The first reason is that the Court of Criminal Appeal have articulated a conflict between the sentencing approach that the courts in New South Wales take for similar offences and that between the South Australian courts, and that is articulated at paragraphs 25 and 26 of the judgment.

The second is that we say there is an error in a court creating a subcategory of an offence under the charge of false pretences that cannot be justified in either the legislation for the particular offence nor in the Criminal Law (Sentencing) Act categories of matters a court can take into account.  Basically, that error is creating white‑collar criminals and classes of people who commit white‑collar offences as being treated differently than other persons who commit offences of false pretences.

The third reason why we say leave should be granted is because we say the court placed an undue weight in determining the appropriate penalty on the simple financial amount of total amount of money that was subject to the offences and, fourthly, and probably less strongly, we say there was also an error in the approach that the court took in relation to the good character.

Now, the issue in relation to this matter involves section 195 of the Criminal Law Consolidation Act, which was the charge of false pretences.  That has since been repealed in South Australia and has been replaced by some other categories of dishonest offending between sections 134 and 140 of the Criminal Law Consolidation Act.  The sort of charge that would have reflected this criminal conduct is probably covered by sections 134 or 139, which involves deception, but certainly this section is now repealed.

There has been no attempt by Parliament, in the repealing of this section and replacing dishonesty offences with new categories, to at all reflect that which the Court of Criminal Appeal does here, and that is aggravate penalties in relation to offences that involve persons in positions of trust, or persons who are professional persons.

CALLINAN J:   Ms O’Connor, I must say I am not unsympathetic to a number of the things that you say and, with respect, I would much prefer the view of the New South Wales Court of Criminal Appeal, but the difficulty for you in this case is that the offences were committed over a prolonged period.  It was four years, was it not?

MS O’CONNOR:   It was more than that.  It was almost seven years, your Honour.

CALLINAN J:   Almost seven years, and there were just so many of them.  So it is not as if you have years and years of good conduct and good character.  You have seven years of bad character and, really ‑ ‑ ‑

MS O’CONNOR:   That is correct.

CALLINAN J:   The difficulty is that really makes non-applicable to your client much of what was said in the New South Wales Court of Criminal Appeal.  I think, with great respect, that is entirely correct.  I sometimes think that it is very much overlooked by sentencing courts.  There is almost a vengeful attitude towards white‑collar crime which, of course, is highly to be condemned and not condoned, but often not such as to attract higher penalties than violent offences, but I just do not see that it applies to your client in this case for the reasons I have mentioned.

MS O’CONNOR:   At first blush your Honour is probably correct, especially if you look at the principle in Ryan in relation to the commission of offences over a long period of time, detracting from the issue of good character, which is why, when we say that the sentencing discretion has miscarried, we do not place a great deal of weight on good character.  What we say is that in then standing back and determining the appropriate penalty, it is an error not to apply section 10 of the Criminal Law (Sentencing) Act and all those matters that go into determining the correct head sentence and the correct non‑parole period.

CALLINAN J:   Well, I think you are right about that.  I think there is a great tendency on the part of the courts completely to overlook the statutory sentencing regimes.  We have had appeals from ‑ ‑ ‑

GUMMOW J:   We have had that again and again.

CALLINAN J:    ‑ ‑ ‑ Queensland recently and we have had it in other States and the courts just seem to be ignoring them.  You have a very good point on that normally, but again, militating against that in this case are the factors I have referred to.

MS O’CONNOR:   The problem is in relation to the penalty that is eventually imposed there has been an error in the way the court came to that penalty.  Now, it may be at the end of the day the head sentence is justifiable, but the problem now exists in relation to this matter is that we say all the factors they were meant to take into account they did not.  They took into account factors that the legislation does not allow them to and, thirdly, the way the South Australian courts come to the appropriate head sentence and the appropriate non‑parole period reflects the same error that is apparent in the decisions of Wong and Inge because what in effect happens ‑ ‑ ‑

CALLINAN J:   Can you just identify for me, please, each of the matters you say that the court was not entitled to take into account.

MS O’CONNOR:   Well, the court is not entitled, under the legislation, to determine that a person who was a – it is in paragraph 21, who acts “professionally for their clients” is a person from whom ‑ ‑ ‑

GUMMOW J:   Just a minute.  Paragraph 21, which page?

MS O’CONNOR:   I am using the judgment in the book of cases from the State, but I will find the application book page, your Honours.  Application book page 135.

GUMMOW J:   Page 135, it is.

CALLINAN J:   Yes.

MS O’CONNOR:   Of the application book, yes.

GUMMOW J:   “The previous good character . . . can only have limited weight”.

CALLINAN J:   Now, why do you say that the court cannot take all of the matters in that paragraph into account?

MS O’CONNOR:   Well, there are two reasons.  One is there was actually no evidence that Mr Dubois was a professional person.  He was a person who, on the findings at the lower court, was a person who ran a company.  He had had a certificate in financial ‑ ‑ ‑

CALLINAN J:   He was advising people, was he not?

MS O’CONNOR:   He was advising people.

CALLINAN J:   About financial matters.  Well, I do not think “professional” is used in the sense there of a term of art.

MS O’CONNOR:   Well, except that that is the one matter the court takes into account in determining the appropriate penalty.  They say it is persons who are professional and acting in positions of trust are the persons for whom you cannot give weight to the good character, or you only can give limited weight to.  The problem in relation to that is that in determining the appropriate sentence of course the amount of money you take, the amount of time that you commit offences for, who you commit offences against and the effect that that has had on them ‑ ‑ ‑

CALLINAN J:   And that you are in a position of trust and you have taken advantage of that.

MS O’CONNOR:   Yes, all those matters are relevant.  But it is the case that you cannot disregard all those matters and simply say persons who act professionally, albeit with no previous convictions, now come into a category of offences, because they are white‑collar offenders, where we are justified, as the Supreme Court in South Australia has been doing since 1996, in increasing to a great extent the head sentence and the non‑parole period without allowing any sentencing court in the process by the appeal judgments of taking into account any of the other matters in the Sentencing Act because what ‑ ‑ ‑

CALLINAN J:   Well, no, that is not right.  They do not disregard it.  They say in paragraph 21 that “good character . . . can only have limited weight”.  It is not disregarded; it has been given some weight.

MS O’CONNOR:   But it does not say that, because it goes on to say:

as it is only people of good character who are in a position to act professionally ‑ ‑ ‑

CALLINAN J:   But that following matter qualifies what has already been said, that limited – well, it explains the reason for giving limited as opposed to greater weight.  You simply cannot say that no weight has been given.

MS O’CONNOR:   Well, we say that what happens then, if that is correct then you cannot give weight to good character, and that is the weakest part of our application for leave.

CALLINAN J:   No, Ms O’Connor – no, you are not listening to what I am saying.

MS O’CONNOR:   Sorry, your Honour.

CALLINAN J:   The court has not refused to give any weight.  The court has reiterated that only limited weight can be given.

MS O’CONNOR:   That is correct, and that is what all the courts ‑ ‑ ‑

CALLINAN J:   That is different from giving no weight.

MS O’CONNOR:   I agree with your Honour, but the problem is then what about those other aspects?  What about the fact that this person has not any previous convictions, or their mental conditions or medical conditions or previous employment history or ability to pay back moneys - all the other matters that in our sentencing regime the courts are required to take into account in determining the sentence.  What South Australia says is that does not matter.  What New South Wales says is, “We will allow that to matter in the fixing of the non‑parole period” ‑ ‑ ‑

CALLINAN J:   No, no.  The South Australian court has not said that it does not matter.  If the South Australian court had said that it did not matter, I would probably be entirely with you.  But look at the top of page 136, “He” – the trial judge – “had regard to all relevant matters personal to the appellant.”

MS O’CONNOR:   Except in the judgment ‑ ‑ ‑

CALLINAN J:   And earlier the appellate court had said that credit was given for the pleas of guilty, expense and time saved, the saving of the victims from trauma, contrition.  These matters were taken into account.  If I thought that the act had been ignored I would be entirely with you, but you just cannot say that in this case.  You are talking really about matters of weight.

GUMMOW J:   That is the problem, I think.

MS O’CONNOR:   Except at the sentencing level, the way in which Justice Gray took into account the plea of guilty was just in relation to the question of the victims not having to give evidence.  He did not say in his sentencing remarks that he was taking it into account as a sign of contrition.  But if I can just pick up your Honour Justice Callinan’s point about the way South Australia deals with it.  If your Honour has a look at paragraphs 24 and 25 where Justice Sulan in the appeal court is dealing with the way that Power adopts the Corbett test, your Honour can see at the bottom of the quote from Power there is the question of the consequence of the court:

to reflect the need for general deterrence and, on the other hand, to give due account to the fact that the offenders involved frequently have no prior criminal history, are not likely to re-offend, and have good prospects of rehabilitation.

So they are the matters the New South Wales courts are taking into account.  Our court then immediately says, at paragraph 25:

As appears from what I have already said, this court takes a different view about the effect of previous good character on sentences for offending –

That is not the only thing that Corbett and Power are talking about.  It is all those other matters in the Sentencing Act that the court is addressing, but I do not want to concentrate my application on this issue of good character; that is not the main strength of my application, if it please the Court.

The strength of my application is this.  The end of the day, in South Australia, regardless of whether a person has previous convictions or not, regardless of a person’s personal circumstances or other matters under section 10, at the end of the day, by applying this test the courts are imposing penalties which directly relate to the amount of moneys that are defrauded.

Now, that then takes away the sentencing discretion of the court, and it does it in this judgment, and it is confirmed in the later judgment of McLachlin in two ways, and the first has been pinpointed by your Honour Justice Callinan in relation to the way that they give limited weight to one aspect.  Secondly, there is no consideration in the Court of Criminal Appeal, in relation to any other matter personal to the offender – none at all.

Thirdly, the way in which it is done is this.  The courts, in determining the penalty, from time to time are just looking at scales.  They just look at what like offences are and decide if someone is in or outside the scale.  That scale is based solely on the amount of money taken.  Now, that is an error.  That is the same error that this Court criticised in Wong and it is the same error that this Court criticised in Inge, and I say it is an error here because the effect of that is you might be justified as a sentencing court to say, “Well, this type of crime is on the increase.  For this type of crime we’re going to reflect that in the fixing of the head sentence.”  But if you disregard all those matters in the whole sentencing process and then you end up with the only thing you are considering, is the seriousness of the offence – which is all they are considering at the end of the day – then the only formula they are applying is the amount of money.

That is why at the end of the day if you look at this judgment you cannot tell upon which basis or upon which factors peculiar to the applicant in this matter was taking into account either those processes because the courts simply ignored that process in New South Wales, which is where it would have been relevant if the New South Wales approach was correct, and the reality is that we now have, in relation to offences involving maybe systematic long-term frauds of large amounts of money in South Australia, a sentencing regime out of step with the rest of the country, both in terms of the head sentence and in terms of the non parole period, out of step in relation to how you fix that non parole period, for someone who has no criminal history, not likely to re-offend and good prospects of rehabilitation – all things ignored by our Court of Criminal Appeal – and, thirdly, you have a sentencing regime here which directly relates to the amount of money taken, regardless of anything else personal to an offender.

Now, that is an error, we say.  We say it is an error that leave should be granted in relation to because it indicates to both the offender how the personal circumstances are dealt with but, secondly, our Parliament has not said, “For offences of dishonesty an aggravating feature will be that it’s a person in a position of trust or acting in a professional capacity” and they have from time to time, as your Honours might be aware, aggravated a number of offences in South Australia:  trespass is aggravated, drink driving is aggravated - there are lots of matters which aggravate penalty.

Even in the new amendments these factors, which this Court determines, takes away the discretion and imposes a court-based two-tiered system of sentencing, has not been reflected in the way that Parliament deals with it.  Now, the Parliament could have, and they have not.

So for those reasons we say that it is inappropriate to sentence anyone without taking into account all those matters in that mix that Wong and Inge and Ryan talk about you take into account.  You cannot simply say, “This type of offending shouldn’t happen”, “People in positions of trust shouldn’t do it”, “Matters personal don’t matter any more, and if you do want to increase the size of penalties that are being received you have to do it with statutory authority.”  There is no statutory authority for what has occurred across the board in South Australia since that was first mooted by Justice Cox and Davies that this court was going to increase sentences for what they called this type of fraud – I use the term “white‑collar” because it came from R v Corbett, but it probably accurately describes rather than “professional” the role in which this offending has occurred.

The flip side, of course, is what if you have aggravated features?  It is not the case that this offence necessarily is committed by persons without previous criminal history.  It might be the case that frauds committed by persons in positions of trust do not have previous criminal histories, but this

charge in particular, there is no pattern of no previous convictions or previous convictions for this sort of offending.

So the court is wrong when it says that, and it is wrong also when it says that it is only people of good character who are in this position to act for clients in this way.  This is not a separate charge in South Australia in relation to persons acting in any fiduciary capacity or in any professional way.  So the court to justify this increase in penalties, which are now across the board for white‑collar crime, and total disregard of sentencing discretion, we say, is the wrong approach and this Court, the High Court, has said that on a number of occasions.

You still have to follow the correct sentencing approach, taking into account all circumstances of aggravation, all circumstances of mitigation.  In this case that has been ignored completely because of the heavy weight that the effect of the offence has had on individuals and the community and the heavy weight that the length of penalties had and the amount of money involved, but it is still relevant, and it is still relevant in relation to how you fix the non‑parole period.

If the courts are of the view that in spite of the fact there is no legislative structure or regime for giving higher penalties for people in positions of trust, it certainly is the applicant’s view that the court ought to have taken into account what New South Wales does in relation to the fixing of a non‑parole period.  If it please the Court.

GUMMOW J:   We will take a short adjournment.

AT 10.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.59 AM:  

GUMMOW J:   We do not need to call on you, Mr Brebner. 

The applicant, who is a finance broker and adviser, was convicted on his own plea of guilty of 31 offences of false pretences to his clients, contrary to what was then section 195 of the Criminal Law Consolidation Act 1935 (SA). The sentencing judge took into consideration in punishing the applicant a further 21 counts of false pretences, and sentenced him to imprisonment for 12 years, with a non‑parole period of eight years. The offences took place over a period of seven years and involved about $2 million.

An appeal by the applicant to the Court of Criminal Appeal of South Australia against his sentence was dismissed.  The applicant had there contended as follows:  that as each of the counts to which he had pleaded guilty, or had asked the court to take into account, had a maximum penalty of four years imprisonment, the starting point of 15 years adopted by the sentencing judge was so far outside the penalties imposed in other jurisdictions for like offending as to be manifestly excessive; because the offending involved no acts of violence or threats of violence, the starting point was, for that reason, excessive; the resulting term of imprisonment was so disproportionate to the criminality of the conduct charged, the learned sentencing judge’s discretion must have miscarried.  It followed, the applicant submitted, that the reduction in the head sentence of only 20 per cent was erroneous. 

The applicant further contended that the sentencing judge gave undue weight to the applicant’s professional status and exploitation to it.  A related error was said to be the use of the applicant’s previous good character against him, instead of in his favour, by holding that he had similarly abused the position which his good character enabled him to assume. 

These are all matters which were considered and dealt with by the Court of Criminal Appeal.  Such force as the last of them may otherwise have had is counterbalanced by the prolonged and systematic nature of the frauds perpetrated.

We would not wish, however, to be taken as endorsing any departure from the careful application of legislation dealing specifically with the matters required to be taken into account in sentencing offenders. 

Nevertheless, the Court of Criminal Appeal has not been shown in this case to be in error.  The application is dismissed. 

AT 11.02 AM THE MATTER WAS CONCLUDED