Franklin v The Queen
[1991] TASSC 91
•10 October 1991
82/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Franklin v R [1991] TASSC 91; A82/1991
PARTIES: FRANKLIN, Richard James
v
R
FILE NO/S: CCA 58/1991
JUDGMENT
APPEALED FROM: R v Franklin 26/1991 ([1991] Tas R54)
DELIVERED ON: 10 October 1991
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Underwood and Slicer JJ
Judgment Number: A82/1991
Number of paragraphs: 30
Serial No 82/1991
List "A"
File No CCA 58/1991
RICHARD JAMES FRANKLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
UNDERWOOD J
SLICER J
10 October 1991
Order of the Court
Application for leave to appeal dismissed.
Serial No 82/1991
List "A"
File No CCA 58/1991
RICHARD JAMES FRANKLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
10 October 1991
In my opinion, for the reasons advanced by my brethren, the applicant has not demonstrated that the sentence imposed upon him was manifestly excessive in the circumstances nor that the learned judge passing that sentence committed any identifiable error in determining it. I do not consider that the application warrants the grant of leave to appeal and would refuse it.
File No CCA 58/1991
RICHARD JAMES FRANKLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
10 October 1991
The applicant was convicted on his own plea of seven counts of stealing. A sentence of two years' imprisonment was imposed. This application is for leave to appeal against the severity of this sentence upon the following grounds:
"1The Learned Trial Judge erred in law in imposing a sentence which was manifestly excessive.
2The Learned Trial Judge failed to give any or any sufficient weight to the circumstances in which the crime was committed and in particular to the fact that the Applicant at all times intended to repay the monies stolen and that such intention on the part of the Applicant was neither unrealistic nor fanciful.
3The Learned Trial Judge erred in law in that when imposing sentence he failed to pay any or any sufficient weight to the fact that the Applicant’s culpability was significantly diminished as a result of the Applicant's intention at all times to repay the monies.
4The Learned Trial Judge erred in law in that he failed to pay due regard to the fact that the crimes committed by the Applicant constituted breaches of Section 228(c) of the Criminal Code Act which were less serious crimes that stealing committed contrary to Sections 226 and 234 of the Criminal Code Act 1924.
5The Learned Trial Judge erred in law in that when imposing sentence the culpability of the Applicant’s crimes was equated with the culpability of a person committing the crime of stealing contrary to Sections 226 and 234 of the Criminal Code 1924.
6The Learned Trial Judge erred in law in that he imposed a sentence the severity of which was manifest when compared to like sentences imposed in respect of similar crimes by this Honourable Court.
7The Learned Trial Judge erred in law in that he failed to reduce a sentence which would otherwise have been appropriate in consequence of the mitigating circumstances put to the Court and the prior good character of and/or consequences to the Applicant of the commission of the crime.
8The Learned Trial Judge erred in law in that he failed to attach any or sufficient weight to the fact that the Applicant pleaded guilty to the said crimes.
9The Learned Trial Judge erred in law in that he failed to attach any or sufficient weight to the facts that:–
(a)The Applicant pleaded guilty to all counts contained in the indictment; and/or
(b)The Applicant advised the police of the existence of the crimes at a time prior to the police being aware that the Applicant had admitted the said crimes; and/or
(c)At the earliest reasonable time the Applicant's legal advisers advised the police and the Director of Public Prosecutions that the Applicant would plead guilty to the said crimes thus effecting a considerable saving in money in respect of the investigation of the crimes and/or the prosecution of same.
10The Learned Trial Judge erred in law in holding that the crimes committed by the Applicant were worthy of significant punishment and required [sic] the deterrence of others when on the same day that he imposed sentence upon the Applicant the Learned Trial Judge had sentenced Trudy Anne Richardson and Lisa Jane Davey to non–custodial sentences in respect of crimes the culpability of which far exceeded those committed by the Applicant.
11The Learned Trial Judge erred in law in imposing a sentence which was manifestly excessive having regard to the fact that the crimes committed by the Applicant were non–violent, non–sexual and non–frightening crimes and/or further having regard to the sentences imposed by His Honour during the sittings on Cameron Charles Schulz 23rd April, 1991, Kevin John Burston 26th April, 1991 and/or Trudy Anne Richardson and Lisa Jane Davey 2nd May, 1991 and/or Heath Boucher 17th May 1991 and/or Andrew Patrick Brennan 17th May 1991."
Although not conceded by learned counsel for the applicant, grounds 2 – 11 inclusive do not rely on the existence of any identifiable specific error and are in the nature of particulars of the first ground namely, that the sentence was manifestly excessive. No portion of the transcript of proceedings in the court below or of the comments on passing sentence was singled out as evidence of error in the exercise of the sentencing discretion. The argument for the applicant proceeded on the basis that the sentence itself was evidence of the occurrence of one or more of the errors alleged in grounds 2 – 11 inclusive.
The applicant was the manager of the Sheffield branch of the Westpac Banking Corporation. He took up that position towards the end of 1986. On 24 February 1988, he committed the first crime by stealing $9,000 from his employer. Thereafter, between 17 August 1988 and 27 December 1989 he committed six more thefts. The total sum stolen on these occasions was $54,252. The applicant, aged 44 and unmarried, had worked in the bank, or one of its predecessors in title, since he left school. He was without prior conviction and appeared before the learned sentencing judge as a man of hitherto good character and one actively involved in local worthy clubs and organisations. He developed an interest in computing and bought a computer which he used in his work at the bank. The applicant planned to set up a small consultancy business in which he proposed to work outside bank hours and in which he would use his computing equipment. To this end he needed a new printer. He could not borrow the required money from the bank as he was then already committed to a staff personal loan. To get the money he committed the first crime by creating a fictitious account and loan application. He approved the loan application and transferred the money to the fictitious account to which he had access. The applicant used some of the money to purchase the printer. The balance was applied in due course to meet interest and other charges on the fictitious loan.
After the printer had been bought, the computer, to which it was attached, broke down and required replacement. To raise funds for this purchase the applicant obtained a loan from a building society. Not long after, the applicant incurred further expenses for the repair of a boat, a car and the printer. To finance these expenses, on 17 August 1988, he stole $9,500 and on 23 September 1988 a further $9,000. The modus operandi in the case of these two thefts was identical to that adopted in the case of the first theft.
With respect to the commission of the remaining four crimes, involving a total sum of $35,752, the explanation proffered the learned sentencing judge is not entirely clear. It seems that the applicant was in need of funds to pay for further repairs to his boat, to pay for replacement software as "all the software was destroyed on the computer as a result of an accident" and, to pay for repairs to his motor vehicle. In the case of the last four counts the applicant again used fictitious names but disclosed in the bank records as security for each loan, a house and land that he owned at Midway Point near Sorell.
It appeared that, as well as making criminal transactions, the applicant had engaged in some irregular, but not criminal, dealings. When he went on holidays in May 1990, the irregularities came to the attention of senior staff of the bank. In the course of enquiries about them the applicant confessed to these crimes. He immediately indicated, and adhered to the indication, that he would enter a plea of guilty to the seven counts in respect of which he was sentenced. For reasons not now material, but not due to any fault on the part of the applicant or his advisers, his plea of guilty could not be dealt with for some twelve months.
Although the total amount stolen was in the order of $63,000, some of the money stolen was "rolled over" and some applied towards the payment of interest and charges on the fictitious loans. The learned sentencing judge was told that the capital sum actually applied by the applicant to his own use was between $40,000 and $55,000.
The bank suffered no financial loss as a result of the applicant’s crimes. From his superannuation entitlement the total sum stolen and interest thereon was recouped.
The learned sentencing judge was told, in some detail, that at all times the applicant intended to repay the money. The applicant intended to sell his assets but, for one reason or another, an opportune time to do so did not arise before the detection of the irregularities. In addition to the order of imprisonment the applicant has suffered by reason of the loss of all his superannuation entitlements and the loss of his means of livelihood.
It is clear from the learned sentencing judge's comments on passing sentence that he took into account all the mitigatory factors urged upon him by counsel for the applicant.
In support of grounds 2 – 4 inclusive, learned counsel for the applicant put to this Court the proposition, expressed in the following terms in the applicant’s written submission:
"It is beyond doubt that the crimes of stealing committed by the applicant constituted breaches of Section 228(c) of the Criminal Code Act which, it is submitted, are less serious examples of the crime of stealing than a stealing committed contrary to Section 226 of the Criminal Code Act 1924."
Standing alone, that submission has no validity. It cannot be said that a case in which the offender intended to permanently deprive the owner of the money taken is more serious than one in which the offender, although intending to use the money taken to his own will, always had the intention to later repay an equivalent amount. The submission may well have validity if it is prefaced with the proposition that in both cases all other relevant factors are equal.
Having regard to the submissions put in support of the application it is appropriate to refer to some fundamental, albeit trite, considerations relevant on an application for appellate review of sentence.
1The sentencing discretion is not a purely logical exercise (Veen v The Queen, (No 2) (1988) 164 CLR 465 at p476). The aims sought to be satisfied by the imposition of sentence are many, varied and, not infrequently, in conflict. The circumstances of each offender and those surrounding the commission of each offence constitute the material upon which the discretion is exercised to satisfy the aims of punishment.
2"Ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process." R v Williscroft [1975] VR 292 at p300. See also The Queen v O’Brien, CCA 43/1987; Wise v The Queen [1965] Tas SR 196; R v Rouse, CCA 64/1990.
3Absent specific error such as, acting on wrong principle or misapprehension of the facts, appellate intervention is only justified if the sentence is so plainly unjust that the court must infer error occurred in some undefined way in the exercise of the discretion. Cranssen v The Queen (1936) 55 CLR 509 at p520; House v The Queen (1936) 55 CLR 499 at p504; Sheldrick v The Queen, CCA 41/1960.
4What might "in experience be regarded as the norm" (per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at p310) is the yardstick customarily used to measure the sentence sought to be imposed (Papazoglu v The Queen [1963] Tas SR (NC3)). It will only be set aside if gross departure from the norm is demonstrated.
The norm is usually referred to as the tariff, a word described by Professor Thomas in Principles of Sentencing (2nd edn) at p29 as follows:
"The use in the content of sentencing of the term 'tariff’, although at least a century old is unfortunate. The expression suggests a process of relating penalties to offences by the application of an inflexible scale and without consideration of the circumstances of the individual offender. Neither implication is true of the complex body of principle which has evolved to guide the sentencer in calculating the length of a sentence of imprisonment. The principles of the tariff constitute a framework by reference to which the sentencer can determine what factors in a particular case are relevant to his decision and what weight should be attached to each of them. Properly used, they offer a basis for maintaining consistency in the sentencing of different offenders, while observing relevant distinctions, making appropriate allowances for individual factors and preserving adequate scope for the exercise of judicial discretion."
In Reynolds v The Queen, CCA 46/1974, Nettlefold J referred to the use of the tariff. After observing that the circumstances of each case are different, he said, "but to say that is not to deny the relevance of a well established trend in sentencing over a substantial period of time, a period of time long enough to neutralise the element of personal idiosyncrasy". [My emphasis].
I have set out the foregoing, well known, propositions because, in his submissions to this Court, learned counsel for the applicant referred to and sought to use as a yardstick a selected number of recently published comments made by judges of this Court upon the imposition of sentence. He also referred to some remarks made on passing sentence in another jurisdiction. None of the material expressed views on relevant matters of principle. Recourse to such material for the purpose of demonstrating general error in the exercise of the sentencing discretion is of no assistance on an application for appellate review of sentence. This material does not reveal any norm or tariff for it is redolent with the idiosyncrasies of each case. No distinction can be drawn between the concept of a general pattern of sentences and the concept of a general pattern of appropriate awards for damages for pain, suffering and loss of amenities of life. In the latter instance it is now well established that recourse to amounts awarded in previous, allegedly comparable, cases is inappropriate when attacking such an award on the basis that it is manifestly inadequate or excessive. See Planet Fisheries v Da Rosa (1968) 119 CLR 118. It is equally inappropriate to consider particular comments made on passing sentence upon applications for leave to appeal against sentence. In criminal cases the tariff may be derived from:
"The collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand." Per R v Oliver, CCA, unreported 1980 cited in R v Visconti [1982] 2 NSWLR 104 at p107.
The tariff may also be derived from recourse to what I might call "raw statistics". See R v Visconti (supra).
In Sentencing in Tasmania, Mrs. Warner analysed sentences imposed between 1983 and 1989 for crimes of stealing in the course of employment and similar offences. At par12.707 she reported:
"Sentences in the middle range (18 months – 2 years) were imposed where the course of dishonest conduct was sustained over a period and the median amount involved was about $15,000. Sentences in the middle range (12 months) involved a median amount of $13,000. Sentences in the middle range typically involved a smaller amount of money or a spur of the moment act. Where an employee was not employed in a position of trust the penalty was usually in the lower range. Offenders who abused a voluntary position tended to be dealt with more leniently than those in paid employment. The data for the period studied (1983 – 1989) showed clearly that only in exceptional cases of theft by an employee in a position of trust will a prison sentence be avoided. Only two non–custodial sentences were cited in this category. Wholly suspended sentences were also quite rare but young first offenders not employed in a position of trust sometimes received this measure as did some offenders who had since been re–employed."
Counsel for the applicant did not dispute that the foregoing was inaccurate in any respect. Using it as a yardstick it can be seen that, when measured against the tariff, the applicant's sentence is at the upper end of the range of sentences that might be seen to constitute the norm but not above it.
It was strongly urged on behalf of the applicant that the mitigatory factors in this case, the significant ones of which appear in the grounds of appeal, were of sufficient weight to demonstrate that the sentence imposed was outside the appropriate range of sentences. I do not accept this. Previous good character, an immediate intention to repay, an early plea of guilty and consequential financial loss and personal humiliation are all matters commonly encountered in cases of theft from an employer involving deception over a period of time. Their existence in this case is not of sufficient significance to demonstrate that the sentence imposed was manifestly excessive.
Finally, I do not accept the submission that error occurred in failing to suspend the whole or part of the sentence. The principles upon which execution of sentences should be suspended has been long settled by this Court. See R v Percy [1975] Tas SR 62; R v Causby [1984] Tas SR 54; R v Sugg, CCA 251985. Immediate execution of sentence is not inconsistent with those principles.
I am of the opinion that the application for leave to appeal should be refused.
File No CCA 58/1991
RICHARD JAMES FRANKLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
10 October 1991
The applicant seeks leave to appeal against the sentence of imprisonment for a period of two years for seven crimes contrary to s228(c) of the Criminal Code. The applicant was, at the time of the offences, the manager of the Sheffield branch of the Westpac Banking Corporation. The criminal conduct which gave rise to the penalty occurred over a period of 23 months.
The applicant does not contend that there were errors of principle manifested in the reasons for the imposition of penalty. A review of the comments made by the sentencing judge reveals that there were no such errors. Rather, the applicant contends that the term of imprisonment imposed was manifestly excessive and that its very length illustrates that there were errors of principle. That contention is circular, involving the proposition that there were errors of principle in the sentencing process leading to the imposition of an excessive sentence and the proof of error lies in the length of the sentence imposed. That approach is a fallacy. In this case the applicant must demonstrate that the sentence imposed was manifestly excessive, and having shown it to be so, demonstrate that it was determined because of a failure to apply the appropriate sentencing principles. A critique of a particular sentence cannot be made on the basis that, because it came within the upper range of penalty appropriate to the commission of a particular form of crime, it must therefore contain errors in the principles of sentencing.
In my opinion, the sentence was not manifestly excessive and did not fall outside the range of penalties appropriate to crimes of the nature involved. In this case the sentencing judge was dealing with crimes commonly referred to as "white collar crime". The applicant was the manager of a branch of a banking corporation. As such, he was in a position of trust. His course of conduct involved conscious decisions to deceive by way of manipulation of banking records. He created fictitious accounts, and obtained, as security for one transaction, a mortgage over his own property, but in a false name. The amount of money involved was considerable, and although it has been repaid, that repayment was made subsequent to detection. The applicant was aged 41 at the time of the commission of the first offence.
In the course of the hearing of the application, a number of questions were raised which have a more general significance. In order that those questions not receive a greater significance, it is desirable that they receive some attention.
1It is not productive to raise complex matters of legal principle under the guise of a "manifestly excessive sentence" application. It avails no one to say that the sentence is excessive because it fails to take into account the following principles, and that because it fails to take into account the following principles, it be manifestly excessive.
There is no starting point to that proposition. It may be that a particular sentence, of its very nature, demands the inference that particular principles have been rejected, but such sentences would be ordinarily beyond the range of penalties which would be expected to be applicable.
2It does not follow that because the crime involved contains a lesser degree of culpability (in contextual terms) it should receive a more lenient treatment in the sentencing process. In this case it was contended that because elements of culpability required to establish the commission of a crime as provided by s226 of the Criminal Code are different from those required to prove the commission of a crime under s228, then ipso facto a lesser sentence should be imposed. It may well be, that the absence of an intent, at the time of the taking or possession, would of itself amount to a mitigating factor, but that would depend on the circumstances of the case. Section 228 defines a special case of stealing and still involves a taking or conversion accompanied by dishonesty. An example may illustrate the point. Rape contains particular elements of culpability which transcend the crime of indecent assault. But a rape committed as a result of a failure to immediately desist following a change of mind on the part of the victim would not necessarily be punished more harshly than a series of indecent assaults on a child.
It is the course of conduct and the extent of criminality which warrant attention in the sentencing process, not some academic analysis of the way in which culpability is determined. A crime committed by way of the application of s228(c) can have far more serious consequences than a "common" stealing contrary to s234.
The correct approach to this question is set out by the High Court in its decision in The Queen v De Simoni (1980) 147 CLR 383 namely that regard should not be made to circumstances which would render the accused guilty of a more serious crime. The distinction sought to be made between ss226 and 228 of the Code was similar to the distinction sought in De Simoni’s case between ss391 and 393 of the Criminal Code (WA). That approach was specifically rejected by Gibbs CJ and Mason and Murphy JJ.
3The court has recently began to publish "comments on passing sentence". I believe that such a course is desirable. But "comments on passing sentence" are what they say they are. They are not a mathematical exercise designed to achieve a fixed or quantitative statement of a particular penalty as being applicable to a particular crime. Nor is the compilation of useful information contained in Sentencing in Tasmania – Warner, to which the court was referred, to be used in that way. Both are useful in establishing a range of penalty options which are properly open to the court. They may, over a period of time, illustrate a trend in sentencing patterns. They may provide guidance or assistance in determining the available parameters of sentence in the consideration of a particular case.
But they cannot be determinative of some reference to parity of sentence. If they were to be so used, the sentencing court would have to have before it all of the material which had been placed before the judge who passed the initial sentence. Their rigid use could operate to distort the sentencing process. The Crown, if the process were adopted, would place before the court a number of penalties imposed by other judges. The Crown could then argue, on the face of the sentencing material, that the particular crime was far more serious and deserving of a harsher penalty. Counsel for the accused could conduct a similar exercise, putting before the court the most favourable comparative sentences and argue that in the particular case, the offence was less serious. If the process were to be repeated over a period of time, then great divergence of penalties could result.
A particular sentence is arrived at by consideration of a wide range of material and the application of legal principles to that material. It attempts to reflect the particular sentence appropriate to the particular offender in the light of the particular circumstances of the offence. As such, the sentence cannot be used as a touch stone for other sentences, except in the most general way, namely, that it represents one of a range of penalties applicable to the type of offence being considered.
This is in accordance with the approach taken by the Court of Criminal Appeal in Tasmania in Reynolds v The Queen CCA46/1974 and The Queen v O'Brien CCA43/1987.
4Reference was made to community reaction. As part of that submission, the court was referred to a judgment of a judge of the New South Wales Supreme Court when he made comments on passing sentence on another bank employee. It was put, as to parity of sentencing, that regard should be had to the effect of deterrence on bank employees. That approach is fraught with difficulty. Does the sentencer review a particular decision of a New South Wales judge? What would happen if the sentencer believed the New South Wales judgment to be wrong? Should the sentencer have before him or her all of the material available to the judge in New South Wales?
Further questions were raised during the hearing of the application. They are real questions and warrant future consideration by this court. They can be articulated in the following way.
1Does a plea of guilty (whether or not it is said to have accompanying it any demonstrated contrition) in itself entitle the offender to a reduction of sentence?
See R v Gray [1977] VR 225.
2Should the sentence reflect the saving of public moneys both to the investigative and judicial systems where a plea is entered at the earliest real opportunity?
See The Queen v Dowie CCA41/1989;
The Queen v Shannon (1979) 21 SASR 442;
The Queen v Slater (1984) 36 SASR 524.
3In what way should statistical data illustrative of sentencing trends or patterns over a substantial period be regarded?
However, this is not the appropriate case in which these questions should be considered.
The test to be applied to this application is whether or not it can be shown that the sentence was manifestly excessive. It would have to be outside the range of appropriate penalties applicable to crimes of the nature being considered by the learned sentencing judge in this case. I am not persuaded that the sentence is outside of the range of appropriate penalties.
For the above reasons, the application should be dismissed.
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