Hamilton v Hampton
[2007] TASSC 27
•9 May 2007
[2007] TASSC 27
CITATION: Hamilton v Hampton [2007] TASSC 27
PARTIES: HAMILTON, Sergeant Garry
v
HAMPTON, Peter John
BUCKNELL, Dean Preston
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 16/2006
LCA 17/2006
DELIVERED ON: 8 May 2007
DELIVERED AT: Hobart
HEARING DATE: 19 February 2007
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Sentence insufficient to uphold statutory system for registration of vehicles.
Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations2000 (Tas), reg45(1)(a).
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: S J Bender
Respondent Hamilton: P D Sullivan
Respondent Bucknell: C A Young
Solicitors:
Applicant: Director of Public Prosecutions
Respondent Hamilton: Paul Sullivan Lawyer
Respondent Bucknell: Doolan & Brothers
Judgment Number: [2007] TASSC 27
Number of paragraphs: 15
Serial No 27/2007
File Nos LCA 16/200617/2006
SERGEANT GARY HAMILTON v PETER JOHN HAMPTON and
DEAN PRESTON BUCKNELL
REASONS FOR JUDGMENT EVANS J
8 May 2007
This is a motion to review the sentence imposed by a magistrate on each respondent consequent upon his plea of guilty to:
·in the case of Dean Preston Bucknell ("Bucknell"), one count of dishonestly acquiring a financial advantage and 143 counts of forgery; and
·in the case of Peter John Hampton ("Hampton"), 143 counts of forgery.
As to each respondent, the learned magistrate convicted him of the charges to which he had pleaded guilty, adjourned the proceedings against him for 18 months and released him upon his undertaking that during that period he would be of good behaviour and commit no crime or offence involving dishonesty and would appear for sentence if called upon so to do.
The applicant seeks a review of each respondent 's sentences on the grounds that:
"1The learned magistrate erred in fact and/or in law in exercising a discretion to make an order under s7(f) of the Sentencing Act 1997 with respect to the respondent.
2The learned magistrate erred in fact and/or law in that, in the exercise of a discretion to make an order under s7(f) of the Sentencing Act 1997, His Honour paid insufficient regard, or no regard at all, to the purpose or purposes of such an order, as set out in s58 of the said Act.
3The learned magistrate erred in fact and/or in law in that the said sentence was manifestly inadequate in all the circumstances of the case."
The offences in question arise from the respondents' involvement in forging certificates as to the suitability of vehicles for registration that were provided to the Registrar of Motor Vehicles. This conduct occurred in the course of the respondents' employment with Devonport Performance Tyres ("DPT")
In April 2005, Hampton obtained employment with DPT as a tyre fitter. Bucknell was the manager of that business. At about this time, DPT lost the services of the sole employee it had who was an authorised vehicle inspector, that is, a person authorised by the Registrar of Motor Vehicles to certify that a vehicle had been inspected and complied with the standards required for its registration. To overcome this loss, DPT negotiated an agreement with Lyndon Viney to conduct vehicle inspections at DPT's premises in Devonport when necessary. Mr Viney was an authorised vehicle inspector and was employed by a business in Ulverstone.
In May 2005, about a month after Hampton commenced his employment with DPT, there was an occasion when Bucknell was unable to arrange for Mr Viney to carry out a vehicle inspection. At Bucknell's request, Hampton performed the inspection and forged Mr Viney's signature to the requisite certificate contained in an application for the registration of that vehicle. Hampton acquiesced to Bucknell's request because he was keen to impress his new employer. Thereafter this re-occurred on 142 occasions between May 2005 and September 2005. Mr Viney was not alerted to what was going on as DPT kept two inspection books, one for Mr Viney's use and one for the certificates forged by Hampton.
Transport Tasmania became suspicious about what was going on and reported the matter to the police. When the respondents were approached by the police they, in substance, admitted what they had been doing.
DPT was paid $43 for each light vehicle or motor cycle inspection and $25 for each trailer inspection. In total, DPT was paid approximately $4,500 for the inspections in respect of which forged certificates were issued. This amount is the subject of Bucknell's conviction for dishonestly acquiring a financial advantage. He did not derive any direct personal benefit from the payments, the benefit went to DPT.
Neither respondent had any relevant prior convictions. In the course of the sentencing hearing, the learned magistrate was provided with the following information in relation to Hampton. He was 37 years of age and had no history of dishonesty. He was in a stable relationship and was the provider for a 9 year old child. After leaving school at the end of Grade 10, he had always been gainfully employed. He had completed an apprenticeship as a fitter and turner and worked in that field for 10 years. He had then worked as a truck driver for five years before taking up employment with DPT. He was mechanically minded and had the skills to construct a box trailer. About one-third of the inspections in respect of which he had issued forged certificates related to trailers and motor cycles. He had the necessary skills and experience to carry out vehicle inspections. When he was not satisfied that a vehicle he inspected complied with the standards required for registration, he had refused to issue a favourable certificate. After the discovery of his dishonesty, every vehicle that was the subject of a certificate forged by him had been re-inspected and none had been found to be unroadworthy. He co-operated with the authorities in the investigation of his conduct, indicated a plea of guilty at an early date and was very remorseful. He was genuinely stressed by what occurred and had suffered an atrial fibrillation after he was charged. This brought to light a heart condition for which he now requires regular medication. His net income from his employment with DPT was $600 per week.
In the course of the sentencing hearing, the learned magistrate was provided with the following information in relation to Bucknell. He was 38 years of age and resided alone. He had a dependant child aged 7. Although he had suffered from significantly reduced sight since birth, he had been in regular employment since leaving school in Grade 9. He had initially worked in the service station industry and had progressed to managing a service station. Thereafter he managed three tyre businesses, the last being DPT. The ownership of DPT had changed subsequent to he and Hampton being charged for their fraudulent conduct. The new owner, who had been fully informed about their conduct, had continued their employment. Bucknell had co-operated with those who investigated his offences, was remorseful and had pleaded guilty at an early date. His take-home pay was $1,200 per fortnight.
The learned magistrate concluded his comments when sentencing the respondents in the following terms:
"Now, obviously the intent of the vehicle inspection requirements is to keep unroadworthy vehicles off the road and whilst you weren't accredited to do the inspections Mr Hampton it seems as if you did them properly. It was a stupid thing for you both to have done nonetheless, you're both mature men with no criminal history and the likelihood of any repetition is remote, however despite everything I've said they are serious matters and I can't overlook that.
I am satisfied, however having considered everything that beyond conviction no further sanction is appropriate. Pursuant to Section 7(f) of the Sentencing Act you are each convicted on those charges to which you have pleaded guilty. I adjourn the question of sentence on the condition, and this [is] the same for each of you, that you are of good behaviour and commit no crime or offence involving dishonesty for a period of 18 months [and] you will each appear for sentence if called upon to do so during that period of time."
The Sentencing Act 1997 ("the Act"), s7(f) and s58 provide as follows:
"7 A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –
…
(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender;"
"58 An order under section 7(f), (g) or (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:
(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;
(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;
(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;
(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;
(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."
Whilst there are three grounds of appeal, the contention advanced by the applicant that underpins each ground is that for reasons of deterrence, the conviction of each respondent should have been accompanied by an actual penalty that went beyond the recording of a conviction and the adjournment of the hearing on the basis of the undertakings imposed pursuant to the Act s7(f). Subject to a respondent complying with that undertaking, he would be discharged after a period of 18 months pursuant to the Act, s61(1)(a).
The conduct of the respondents was not impetuous. It extended over a period of about four months during which, on 143 separate occasions, Hampton, at Bucknell's instigation, forged a certificate of inspection. These certificates are a central aspect of the statutory system put in place for ensuring that before a vehicle is registered, it complies with a requirement that it "is roadworthy and complies with the relevant vehicle standards", Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2000, reg45(1)(a). One obvious reason for this requirement is the need to protect the public from unroadworthy vehicles, a need which is not remote but ever present and very real. Fatal consequences may flow from the registration of an unroadworthy vehicle. It is of the utmost importance that the statutory system put in place to protect the public from unroadworthy vehicles be upheld and that conduct such as the respondents', which undermines that system, be appropriately penalised. In my respectful view the learned magistrate erred in imposing sentences that did not achieve that end.
Counsel for the applicant does not submit that custodial sentences, whether immediately effective or suspended, were necessary. He submits, however, that fines should have been imposed. I agree, although I do not consider that the same fine should be imposed on each respondent. Hampton, a recent employee of DPT, was subject to the control of Bucknell, the manager of the business. Hampton was instigated to act as he did by Bucknell. In these circumstances I consider that Bucknell bears more responsibility for what occurred than Hampton.
The sentence imposed by the learned magistrate on each respondent is quashed insofar as he adjourned the proceedings against the respondent for 18 months and released him upon undertakings. In lieu, in the case of Bucknell, I fine him $1,200 and in the case of Hampton, I fine him $800. I will hear counsel as to time to pay.
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