Hull v The State of Western Australia
[2005] WASCA 194
•11 OCTOBER 2005
HULL -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 194 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:77/2005 | 22 AUGUST 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MILLER AJA | 11/10/05 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DEBRA GILLIAN HULL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Corruption Unlawful use of a computer A sentence of 15 months' imprisonment Whether sentence should have been suspended 44yearold offender with no prior record Breach of position of trust Effect on family of imprisonment |
Legislation: | Criminal Code (WA), s 83(c), s 440A Sentencing Act 1995 (WA), s 6(4), s 39, s 76(2) |
Case References: | Anderson v The Queen (1996) 18 WAR 244 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Dinsdale v The Queen (2000) 202 CLR 321 Etrelezis v The Queen [2001] WASCA 327 Hodder v The Queen (1995) 15 WAR 264 House v The King (1936) 55 CLR 499 Hull v State of Western Australia [2005] WASCA 107 Lowndes v The Queen (1999) 195 CLR 665 Meeuwsen v Police [2003] SASC 306 R v Bush-Jones (1989) 39 A Crim R 79 R v James (1985) 14 A Crim R 364 R v Latham (2000) 117 A Crim R 74 R v Minchinton (1998) 104 A Crim R 502 R v Nath (1994) 74 A Crim R 115 R v Nevermann (1989) 43 A Crim R 347 R v Rowe (1991) 52 A Crim R 196 R v Stewart (1994) 72 A Crim R 17 R v Zamagias [2002] NSWCCA 17 S v The Queen [2003] WASCA 309 Samuel v The State of Western Australia [2004] WASCA 154 R v Bekink (1999) 107 A Crim R 415 R v Liddington (1997) 18 WAR 394 R v Wallis [1999] QCA 288 White v Taylor [2001] WASCA 350 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HULL -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 194 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MILLER AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : ALB 39 of 2005
Catchwords:
Criminal law and procedure - Sentencing - Corruption - Unlawful use of a computer - A sentence of 15 months' imprisonment - Whether sentence should have been suspended - 44yearold offender with no prior record - Breach of position of trust - Effect on family of imprisonment
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Legislation:
Criminal Code (WA),s 83(c), s 440A
Sentencing Act 1995 (WA), s 6(4), s 39, s 76(2)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Ms L Petrusa & Mr A D Sullivan
Solicitors:
Appellant : Simon Freitag
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"S" v The Queen [2003] WASCA 309
Anderson v The Queen (1996) 18 WAR 244
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Dinsdale v The Queen (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
Hodder v The Queen (1995) 15 WAR 264
House v The King (1936) 55 CLR 499
Hull v State of Western Australia [2005] WASCA 107
Lowndes v The Queen (1999) 195 CLR 665
Meeuwsen v Police [2003] SASC 306
R v Bush-Jones (1989) 39 A Crim R 79
R v James (1985) 14 A Crim R 364
R v Latham (2000) 117 A Crim R 74
R v Minchinton (1998) 104 A Crim R 502
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R v Nath (1994) 74 A Crim R 115
R v Nevermann (1989) 43 A Crim R 347
R v Rowe (1991) 52 A Crim R 196
R v Stewart (1994) 72 A Crim R 17
R v Zamagias [2002] NSWCCA 17
Samuel v The State of Western Australia [2004] WASCA 154
Case(s) also cited:
R v Bekink (1999) 107 A Crim R 415
R v Liddington (1997) 18 WAR 394
R v Wallis [1999] QCA 288
White v Taylor [2001] WASCA 350
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA and Miller AJA. I am of the view that this appeal should be allowed. I am broadly in agreement with Roberts-Smith JA in his analysis of the reasons why a suspension of the term of imprisonment imposed would have been appropriate. However, I take a somewhat different view about the nature of the analysis which his Honour the learned sentencing Judge should have conducted. In relation to that matter, I set out my views briefly below.
2 I do not think that his Honour erred in failing to explain why the more severe punishment, being a non-suspended term of imprisonment, was the only appropriate option. His Honour appears to have taken the view that, because of the position of trust occupied by the appellant, and the aggravating factor of the second offence involving the use of another employee, committed at a time when the appellant was on leave because of the first offence, the offences were so serious that, notwithstanding the good antecedents to which his Honour referred, only immediate imprisonment was appropriate. To have explained why he did not think the term should have been suspended would, in my view, have simply led to his Honour saying the same thing in perhaps slightly different words.
3 However, it is my view that the terms should have been suspended. There are, I think, a number of factors to which his Honour did not refer, or which he did not perhaps explore in sufficient detail, which lead to this conclusion. It is convenient to begin first with the less serious of the two offences, being that involving unauthorised use of a computer. I refer to that as the less serious offence, because its statutory maximum is substantially lower than that of the offence of acting corruptly as a public officer.
4 The offence involving unauthorised use of the computer pursuant to s 440A of the Criminal Code (WA) is one of relatively recent origin. It is to be found in the chapter of the Code dealing with stealing and like offences, so that it seems that Parliament regarded the gravamen of the offence as being the "taking" of information, or the use of information, to which the offender had no entitlement. There is a tiered sentencing structure, so that the most severe penalty is reserved for persons who act in the forbidden way in order to obtain for another a benefit, pecuniary or otherwise, or cause to another a detriment which can be valued at more than $5000. The next in seriousness is such an offence committed in order to cause a benefit or detriment, but without reference to any particular value. The offence of which the appellant was convicted, being on indictment, is lower in the scale again and carries a statutory maximum
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- of only 2 years' imprisonment. On summary conviction, the offence carries a maximum penalty of 1 year's imprisonment.
5 In relation to offending which carries a maximum penalty of 2 years' imprisonment, questions of whether the information was of value or not, and of whether there was any intention to cause any other person a benefit or a detriment may be put to one side, since, if they were present, those considerations would have put the offence into a more serious category for sentencing purposes. In relation to the level of offending with which we are concerned in the case of this offender, it would appear to me that there are a number of factors which need to be taken into account in determining where on the scale of seriousness an offence lies. The three factors which are most likely to be of importance, in the usual run of cases, would be the nature of the information to which access was gained (that is, factors such as its personal sensitivity, or the potential public mischief stemming from access), the quantity of information the subject of the access, and the purpose of the offender in gaining access.
6 On this occasion, the appellant gained access to very limited information, being only the name and address of the owner of a particular vehicle. In the circumstances of this case, there is nothing to suggest the information was of particular sensitivity; indeed, since the person had been in the vicinity shortly beforehand, it would have been open perhaps for the appellant to have obtained information about the person's name without access to the computer system, had there happened to have been anyone around who recognised that person. There is nothing in the circumstances of this case to suggest that the person's address was of particular sensitivity, and there are many other computer records (medical records spring to mind as perhaps an obvious example) which would generally be considered to be of a more personal and sensitive nature. Finally, the appellant's purpose was asserted to have been no more than the satisfaction of curiosity which was excited on the spur of the moment. When regard is had to all of those factors, the offending would appear to be capable of being categorised as in the lowest level of such offending.
7 Once that categorisation is made, in the context of an offence which carries what is, in any event, not a very high statutory maximum penalty, it would appear to me that, prima facie, a sentence of immediate imprisonment would be inappropriate.
8 Turning now to the count of acting corruptly as a public officer, the statutory penalty in respect of that offence is one of 7 years' imprisonment. However, it is an offence which is obviously capable of a
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- very wide variety of circumstances. A very important question in the case of offences of this kind would be the public detriment which flowed, or was capable of flowing, from the offence. In this case, in the abstract, one can see that there is potential for significant public detriment if a motor vehicle licence is issued to a person who is not entitled to one. However, that is, in my view, to consider the matter at too great a level of abstraction. The motor vehicle here in question was a motor cycle, and there was no evidence before his Honour as to whether or not the person for whom the licence was obtained was capable of controlling such a vehicle or was likely to be a danger to the public if he took advantage of the issue of that licence. That is in contrast with the decision in R v Minchinton (1998) 104 A Crim R 502. In that case, the offender, who was a police officer, processed 31 driver's licence applications without requiring the applicants to undergo prescribed tests, including in one case that of a person who had earlier been disqualified from driving for life.
9 The appellant's conduct plainly should attract a significant penalty. However, that is not so much because there was any particular risk to the public, or harm to the public, which could be shown to stem from her issuing of that single licence, but because, were the practice to become widespread amongst those with access to such computers, there would obviously in due course be significant public harm caused. Without in any way suggesting the analogy is a perfect one, there is some similarity with offences such as shoplifting, which are often not the cause of significant detriment to any person on any particular occasion, but which if committed by numbers of persons over time, result in a substantial burden on the community.
10 Turning to personal factors, it is the case that, as the State noted in its submissions, offences of this kind will very often be carried out by persons who are otherwise of good character; that is how they obtain the position of trust in which they are able to act corruptly. However, it is nevertheless of importance in this case that the appellant is 44 years of age with a hitherto unblemished record. She is in difficult personal circumstances. Her father has a limited time to live, her mother is unwell and is looking after her father, her younger sister suffers from schizophrenia and has often disrupted the family, and she has two teenage sons who are currently also in her mother's care. Although she has those very heavy family responsibilities, the consequence of her offending is, of course, that she has lost what had been a long-term and stable employment. Where the consequences of an offence are so significant, there is, of course, a reduced need for personal deterrence, although considerations of general deterrence are still of significance. Further,
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- although, as the State correctly points out, there is a limit to the weight which can be given to the circumstances of an offender's family, because of the circumstances I have described imprisonment would bear more harshly upon the appellant than it would upon many offenders who have a much more limited sense of responsibility towards their families.
11 In all those circumstances, it is my view that a close analysis of the circumstances of this offence and of its consequences for this offender lead to the conclusion that neither personal nor general deterrence requires that the sentence of imprisonment which was appropriately imposed should be immediately served. I acknowledge that general deterrence is an issue of importance in these cases, and the community rightly expects that those public servants who, like the appellant, have certain powers because of their access to official computers must be required to be very careful and very conscientious in making only proper use of that access. Because of the very great possible variation in circumstances, however, these are the type of offences in which, while acknowledging the importance of general deterrence, there must always be a close analysis of the seriousness of the particular offending. In my view, such an analysis in this case, particularly when taken in combination with the appellant's personal circumstances, leads to the view that the decision by his Honour not to suspend the term of imprisonment imposed was in error. I would therefore agree with Roberts-Smith JA that the sentences imposed should be varied by ordering that they be suspended for a period of 2 years.
12 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence. The appellant was convicted following pleas of guilty to two offences. The first was a count of corruption contrary to s 83(c) of the Criminal Code (WA), for which a sentence of 12 months' immediate imprisonment was imposed. The second offence was one of unlawful use of a computer contrary to s 440A of the Criminal Code, for which the appellant received a sentence of 3 months' imprisonment to be served cumulatively. The aggregate was one of 15 months' imprisonment and the appellant was declared to be eligible for parole. The maximum penalties for the above offences are 7 years' and 2 years' imprisonment respectively.
13 I have had the benefit of reading in draft the judgment of Miller AJA. The facts and circumstances are sufficiently set out there and it is not necessary for me to repeat them.
14 Following amendment at the hearing of the appeal, the grounds of appeal stood as follows:
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- "1. Having regard to the Appellant's antecedents the sentence was manifestly excessive.
2. The Learned Sentencing Judge erred in not giving consideration or adequate consideration to whether a sentence other than one of immediate imprisonment was warranted."
15 Ground 1 is not argued on the basis that the individual terms of imprisonment were manifestly excessive, nor that the aggregate term was. What is argued is that a sentence of immediate imprisonment was excessive. Counsel for the appellant accepted that ground 2 adds nothing to the appeal, because if the Court were to decide that the sentence imposed was appropriate in all the circumstances, it would necessarily follow that his Honour had given adequate consideration to a sentence other than one of immediate imprisonment. Even if it were shown that his Honour did not give adequate consideration to whether a disposition other than immediate imprisonment was necessary, if it were not also shown that immediate imprisonment was manifestly excessive, the Court could not be satisfied that a different sentence should have been passed (s 689(3) Criminal Code; now replaced by s 31(4)(a) Criminal Appeals Act 2004 (WA)) and the appeal must fail.
16 It is not submitted on behalf of the appellant that the offences committed were not serious, as indeed, it could not have been. In R v Nath (1994) 74 A Crim R 115 at 119, Perry J said:
"A breach by persons holding public office of the duty to act honestly in the performance of their public duties is a most serious matter which should ordinarily attract a substantial penalty."
17 Miller AJA has referred to R v Minchinton (1998) 104 A Crim R 502. I need not cite the relevant passages again. Suffice to say that while offences of this nature are undoubtedly serious (and indeed that case involved a total of 31 offences committed over five years), it cannot be relied upon as authority for the proposition that they are invariably so serious that the requirement for general deterrence will always necessitate an immediate term of imprisonment. In Minchinton, Wallwork J at 505 - 506 referred to the reasons of Wallace J in R v Rowe (1991) 52 A Crim R 196 at 201:
"Public concern about a crime must never be allowed to bring about departure by the courts from the fundamental concepts of
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- justice and mercy which should animate the criminal tribunals of civilised nations: Yardley v Betts (1979) 22 SASR 108 at 112-113; 1 A Crim R 329 at 333. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely to do so: Webb v O'Sullivan [1952] SASR 65 at 66. Nor is mercy to an individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 324."
18 It is submitted on behalf of the respondent that the sentencing objectives of deterrence and protection of the community will often require the Court to be firm with an offender and that ultimately, there was no error in his Honour's conclusion that "imprisonment and immediate imprisonment is the only sentence which is appropriate to be imposed" because the factors requiring immediate imprisonment outweighed the mitigatory factors before the Court.
19 It is convenient at this point to make some brief comments about the relevance of the appellant's family circumstances. In extreme cases, a sentencing court may take into account serious illness suffered by a member of the offender's family where that family member will be subjected to an unusual measure of hardship as a result of the offender's imprisonment and where the offender will therefore be subjected to an unusual measure of hardship as a result of their imprisonment (Anderson v The Queen (1996) 18 WAR 244). There is a real prospect that the appellant's father may not survive her imprisonment even to the extent of the expiration of the non-parole period. Given this prognosis, to deprive the appellant of time with her father in the last period of his life is, in my view, a factor that would weigh against the imposition of a term of immediate imprisonment. Although such information was not before his Honour at the time of sentencing, it is material to which this Court may now have regard in deciding the appeal: s 31(2) of the Criminal Appeals Act2004 (WA).
Imposition of a term of imprisonment: principles
20 The principle that immediate imprisonment is the sentence of last resort is embodied in s 6(4) of the Sentencing Act 1995 (WA):
"A court must not impose a sentence of imprisonment on an offender unless it decides that:
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- (a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it."
21 Section 39(2) of the Sentencing Act sets out the hierarchy of sentencing options and s 39(3) states that a court "must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option."
22 The imposition of a suspended sentence is not restricted to exceptional circumstances. It is imposed where the offence is deserving of imprisonment but the prevailing circumstances justify the imposition of a lesser sentence. Section 76(2) of the Sentencing Act specifically states that:
"Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."
23 Further, the principle of immediate imprisonment as the sentence of last resort is long-standing at common law. In considering whether it is necessary to imprison a person for a serious offence, Burt CJ said in R vJames (1985) 14 A Crim R 364 at 366:
"It was, I think, an offence calling for a deterrent punishment. But on the other hand, it was a first offence committed by a man aged 41. There is no reason to suppose that it will be repeated by him and in argument this was accepted by counsel for the Crown whose end and central submission was that imprisonment was the only appropriate sentence because the offence called 'for the use of the most highly deterrent form of disposition known to the criminal law'. In that submission counsel was specifically speaking of a general deterrence, that is to say, of the deterrence of persons other than the appellant as the Crown accepted 'the proposition that this person does not need personal deterrence as of today'. As to that, in my opinion, in a case such as this a sentence other than imprisonment cannot be said to be inappropriate upon the single ground as asserted, and it may not be the fact, that it will not sufficiently deter others from committing a like offence."
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24 In R v Zamagias [2002] NSWCCA 17, Howie J said at [25] (Hodgson JA and Levine J agreeing):
"The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment."
25 Mullighan J said in Meeuwsen v Police [2003] SASC 306 at [38]:
"The correct approach in arriving at a just sentence is to go through the process of eliminating all other sentencing options before considering imprisonment: R v O’Keefe [1969] 2 QB 29 and Wood v Samuels (1974) 8 SASR 465."
26 In Dinsdale v The Queen (2000) 202 CLR 321, the High Court discussed the operation of the provisions of the Sentencing Act outlined above. Gleeson CJ and Hayne J said at [11]:
"… a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act."
27 At [15]:
"No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."
28 Kirby J (Gaudron and Gummow JJ agreeing) said at [77]:
"In Western Australia, the 'starting point' for judicial analysis concerning the availability and suitability of a suspended sentence of imprisonment is the language of ss 39(2) and 76 of the Act. From s 39(2)(f) can be deduced the purpose of Parliament to afford 'suspended imprisonment' as an option to be available in an appropriate case. It is there treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of a term of imprisonment to be immediately served. It is to be read
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- with the injunction in s 6(4) restraining the imposition of a sentence of imprisonment and confining it to the punishment of last resort." (Citations omitted)
29 The principles which should guide the exercise of the sentencing court's discretion to suspend a term of imprisonment were discussed in R v Latham (2000) 117 A Crim R 74. Parker J (Wallwork and McKechnie JJ agreeing) at [9] - [11] said:
"The recent decision of the High Court in Dinsdale (2000) 115 A Crim R 558 has done much to clarify the law as to many of the issues canvassed in the course of argument. Rather than traverse the arguments it is now sufficient to note that the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially to the effect which suspension would have on rehabilitation of the offender is not an appropriate approach: Dinsdale at 580 [84]. Rather, the same considerations that are relevant to the imposition of a term of imprisonment are to be revisited in determining whether to suspend that term. It would appear that 'double weight' may thus be attributed to factors relevant to the offence and to the offender - whether aggravating or mitigating - which may influence or determine the decision whether to suspend the term of imprisonment: Dinsdale at 580 [84] and [85] per Kirby J, Gaudron and Gummow JJ concurring at 565 [26]; note also Gleeson CJ and Hayne J at 563-564 [18].
Unfortunately, the reasoning of their Honours in Dinsdale may leave open the possibility of some difference of understanding whether a particular order of approach must be followed by a sentencing judge when considering whether or not a suspended sentence is to be imposed: compare Kirby J at 578-579 [78]-[80], Gaudron and Gummow JJ apparently concurring at 565 [26], with Gleeson CJ and Hayne J at 563 [13] and [16].
This may seek to read too much into the observations at 563 [13] and [16], however, as it is clear from 562 [12] that their Honours were concerned to identify the error in deciding that a term of imprisonment should be imposed and in then concluding that because 'there was no rehabilitation process going on which merited the support of a suspended sentence' there was no reason shown which 'dictated a merciful
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- disposition of the case', that is, by suspending the sentence. As their Honours said (at 562-563 [13]):
'13. This inverts the order in which the statute requires a sentencing judge to consider matters. The sentencing judge must first decide the kind of punishment to be imposed ... Only if satisfied it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately.' (Emphasis added.)
And at 563 [15] their Honours continued:
'15. No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment. (Emphasis added.)'"
- And at [15] - [18]:
"The precise terms of the conferral of power to suspend a term of imprisonment in s 76(1) are also consistent with there being two steps in the process. First, the imposition of a sentence of a term of or terms of imprisonment and, secondly, a decision whether or not there should be an order that the term or terms imposed be suspended for a period set by the court.
Thus, in my respectful view, the processes required by the statute are not well adapted to being approached in a precise order by which suspended imprisonment is first considered in isolation, without having regard to the more severe sentence of a term of imprisonment, the latter being considered only if and after the sentencing court has satisfied itself pursuant to s 39(3) that suspended imprisonment is not appropriate.
If this view should be correct it remains fundamentally important, however, that the sentencing court respect the injunction of s 39(3). The court must not impose a term of imprisonment which is not suspended, that is, which is to be
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- served immediately, unless satisfied that a sentence of suspended imprisonment is not appropriate.
For the purposes of this application, in my respectful view, what appears to be critical to the adequate exercise of sentencing discretion is whether due regard was had to the stipulation of s 6(4) which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider ss 6(4) and 39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when ss 6(4) and 39(3) are considered, but that they be properly considered." (My emphasis)
30 These passages were also adopted by Malcolm CJ (Wallwork and Templeman JJ agreeing) in Etrelezis v The Queen [2001] WASCA 327.
31 Given the appellant's previous good character, the "one off" nature of the offences and the appellant's personal circumstances and background, a suspended sentence was clearly a disposition that required consideration. That being so, it could reasonably be expected that his Honour would give specific reasons for concluding that immediate imprisonment was the only appropriate sentence. True it is that there is no obligation on a sentencing Judge to refer to each sentencing option set out in s 39(2): Samuel v The State of Western Australia [2004] WASCA 154 at [31]-[33]; Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 at 6. But there is nothing in the Chief Justice's reasons in R v Nevermann (1989) 43 A Crim R 347 which militates against the realistically open proposition that where there is apparently a sentencing option other than immediate imprisonment, the Judge should explain why the more severe punishment is the only appropriate option. Indeed, the whole thrust of his Honour's comments in Nevermann was that a sentencing Judge must reveal his or her process of reasoning to a particular sentence (see 349 - 350). If the reasons must be revealed to the extent necessary to enable an appeal court to determine whether or not the judgment is erroneous, it follows that however brief those reasons may be, they must reveal why the Judge concluded an apparently realistic alternative was, in fact, not appropriate. The question, as highlighted by
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- Parker J in the emphasised passage above, is whether his Honour's sentencing remarks reveal that he did not give proper consideration to the other sentencing options and in particular, a suspended term of imprisonment.
32 In this case, pursuant to s 6(4)(b) of the Sentencing Act, there was no suggestion that the protection of the community required immediate imprisonment. His Honour justified the imposition of an immediate term of imprisonment solely on the basis of the first limb of s 6(4) - the seriousness of the offences, and in particular, the need for general deterrence. However, notwithstanding the objective seriousness of offences of this kind, these particular offences were clearly within the lower category of offences of this type. They were isolated instances, for which no financial or material benefit was received, and were the product of the appellant's concerns for her relationship. It is not suggested the appellant might commit further offences.
33 In all the circumstances, his Honour could not properly have been satisfied that this case was so serious that immediate imprisonment was the only appropriate disposition. The seriousness of the offences and the need for general deterrence do not outweigh the mitigating factors of the appellant's personal circumstances and good antecedents, remorse and plea of guilty which, in any case, would weigh in favour of a lesser sentence. If real cogency is given to the principle of immediate imprisonment as the last resort, in a case where a suspended term was a reasonable and realistic sentencing option (as it was here), then there must be error in imposing an immediate term. I am fortified in this conclusion by his Honour's failure in these circumstances to say why a suspended sentence was, in his view, not appropriate.
34 Where an error of sentencing principle has been identified on appeal, the sentencing discretion falls to be exercised afresh: House v The King (1936) 55 CLR 499 at 504 - 505 per Dixon, Evatt and McTiernan JJ; see also s 31(5)(a) of the Criminal Appeals Act.
35 I would grant leave to appeal, allow the appeal and vary the sentences by making an order that the sentences be suspended for a period of 2 years.
36 MILLER AJA: This is an application for leave to appeal against sentences of 12 months and 3 months imposed respectively by Healy DCJ in the District Court at Albany on 2 May 2005 for the offences of corruption and unlawful use of a computer. The sentences were ordered to be served cumulatively with eligibility for parole. The grounds of
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- appeal are that having regard to the antecedents of the appellant, the sentences were manifestly excessive, and the learned sentencing Judge erred in not giving consideration, or adequate consideration, to whether a sentence other than one of immediate imprisonment was warranted. In the end, the application centred on the question whether the learned sentencing Judge was correct in imposing sentences of imprisonment to be served immediately, or whether, in all the circumstances, those sentences should have been suspended.
The facts
37 Between November 2000 and February 2004, the appellant was employed by the Western Australian Department of Planning and Infrastructure (DPI) at the Albany Licensing Centre in Albany. She was, by December 2003, a senior CSO. The Albany Licensing Centre processed vehicle licensing and the issue of Western Australian motor drivers' licences. The responsibilities of the appellant were described by the prosecutor in her statement of facts to the Court in the following terms:
"As a senior CSO, she supervised a team of CSOs and undertook responsibility for balancing and accountability of moneys collected by team members, provided team members with advise, guidance and training on the issuing and renewal of WA motor drivers' licences and vehicle licences and associated transactions, and as the manager of licensing services, to provide leadership and manage the operations of the Albany Licensing Centre, including the human, physical and financial resources."
38 The Albany Licensing Centre performed duties for the Ongerup police station, as it did not have the appropriate computer facilities to deal with motor drivers' licence applications.
39 In December 2003, the appellant was in a de-facto relationship with a David John Bell. He held a current motor driver's licence class C. On 30 January 2003, the appellant, acting in her position as manager of licensing services, unlawfully entered into the DPI corporate computer database for Ongerup and falsely loaded into the system a theory test and pass result for an RE class Western Australian motor driver's licence for David John Bell. Such a class motor driver's licence enabled Bell to lawfully ride a motorcycle with an engine restriction up to 250 cc.
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40 In ordinary circumstances, a fee of $49.70 would have been payable for the licence and payment required on the Ongerup computer site. The appellant cancelled the transaction receipt and reprocessed it under the Albany site. The appellant then used the identity of a fellow employee to log into the DPI corporate computer database and make an entry under her user identification details. A certified copy of the false motor driver's licence number was then generated. A receipt was produced, the bottom half of which was used to create a new plastic Western Australian motor driver's licence for Bell.
41 The appellant's actions were uncovered by staff members following receipt of a complaint from a member of the public. A DPI internal investigation was then commenced. The appellant was informed and she then took annual leave commencing 20 January 2004.
42 In January 2004, the appellant saw a motor vehicle registered number AU-2643, the male driver of which matched the description of the person who had made the complaint to the Albany licensing centre which generated the DPI internal investigation. On the morning of 30 January 2004, whilst on leave, the appellant went to the Albany licensing centre and made an unlawful request of a fellow employee to perform a vehicle registered owner check on the DPI corporate computer database for the vehicle registered number AU-2643. She requested that a hard copy of the information be printed out. The transaction was performed by the employee in the belief that the appellant, as her supervisor, was making the request for a lawful purpose. She was unaware of the true circumstances. The employee handed the printout of the details of the owner of the vehicle to the appellant, who placed it in her handbag and took it. Later, the employee realised that she may have done something illegal. She took immediate steps to retrieve the printout from the appellant and notified her superiors of what had happened.
43 On 28 September 2004, public sector investigation unit detectives interviewed the appellant. She admitted to both offences and explained that the first offence was committed to obtain an RE class licence to enable her de-facto to ride his motorcycle to work, as he had no other method of transport because his motor vehicle had broken down. The appellant stated that the second offence had been committed in an attempt to find out the details of the owner of the vehicle because the driver matched the description of the person who made the initial complaint to the Albany Licensing Centre. She was remorseful for the commission of the offences and acknowledged that she had been in a position of trust and authority at the time of their commission.
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Proceedings in the District Court
44 The matter came before Healy DCJ in the District Court at Albany on 2 May 2005. The appellant was represented and a full plea was made in mitigation of sentence. The appellant's work history was carefully traced. She had begun work in the Public Service as a clerk typist at the age of 18 years, and had moved through other Government departments. She was married at 25 years of age and she had twin sons. Following their birth, she continued employment for a time. She was forced, after her husband left her, to raise her two sons as a single parent, with very little support from her extended family. Reference was made to her mother having recently undergone hip replacement surgery, and her father recently having had surgery and being unwell.
45 Counsel for the appellant submitted that it was important that the false licence which had issued to Bell had never been used by him because he refused to accept it or use it. The appellant's relationship with Bell was said to have lasted only a year. The appellant was described as an "insecure, sole parent who was endeavouring to ingratiate herself into a relationship so that she could have the emotional security that had been so lacking in her life." The appellant's early plea of guilty and her absence of any prior convictions were both stressed. A non-custodial sentence was sought, and a community based order was suggested.
46 The prosecutor described the offences as extremely serious and submitted that there was a strong need for general deterrence to prevent corruption spreading in the community. It was accepted that the appellant had received no personal gain from what she did, but stress was placed upon the fact that she had committed a subsequent offence after having committed the first offence and whilst being on leave and under investigation. In relation to that offence, it was submitted that she had abused her previous supervisor status by manipulating an employee to print out the material that she sought. It was put to the learned sentencing Judge that age was no excuse for what the appellant had done and, although the plea of guilty was to be taken into account as a mitigating factor, together with cooperation and the absence of any criminal record, deterrence was the overriding sentencing factor and a term of imprisonment was open to the Court.
Sentencing
47 The learned sentencing Judge dealt with the appellant after hearing submissions. He referred to the two offence the subject of the indictment and to the maximum penalties applicable to each. In relation to the first,
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- his Honour correctly pointed out that the maximum sentence available was 7 years' imprisonment. In relation to the second, his Honour erroneously stated the maximum sentence to be 1 year. In fact, it was, in the circumstances of this case, 2 years.
48 The learned sentencing Judge then summarised the facts. He made reference to a pre-sentence report and psychological report which had been received by the Court, and to the plea in mitigation which had been made by the appellant's counsel. His Honour noted that the appellant was then 44 years of age and had two sons, in relation to whom she had been the sole supporting parent for a considerable period of time. His Honour mentioned that the appellant had supported her own parents who were ill, and her sister who had a history of problems through schizophrenia. His Honour then made reference to the prosecutor's submission that the serious nature of the offending behaviour was such that there was a need for a deterrent sentence. He said:
"There is a great need these days - seeing that most people's private lives seem to end up in some computer belonging to the government, members of the public should be entitled to be satisfied that their records can only be accessed for legitimate purposes. Here on both occasions that was not the case.
At the time of the commission of the offences you were in a position of trust. You had been an employee of the public service for a lengthy period of time. The second offence involved you using another employee. You had returned to the office when you were on leave to carry out that inquiry. The trust reposed in you by your employer and by the citizens of Western Australia was grossly abused for reasons which in relation to the first offence turned out to be completely nugatory because the person to whom you gave the licence didn't want to use it.
Stand up. In my view, bearing in mind your early plea of guilty and your good antecedents and the fact that imprisonment is a sentence of last resort, in all the circumstances of this case general deterrence really means that imprisonment and immediate imprisonment is the only sentence which is appropriate to be imposed."
49 The sentences which were imposed were 12 months' imprisonment on the first count and 3 months on the second, to be served cumulatively
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- with an order for eligibility for parole and (apparently) with effect from that day.
Appeal
50 Counsel for the appellant accepted, during argument, that the essential question for the Court was whether, in all the circumstances, the learned sentencing Judge had open to him a disposition other than a sentence of immediate imprisonment. Although an attempt was made to argue that the learned sentencing Judge failed to give any consideration to the imposition of an alternative mode of disposition, it is apparent from his Honour's reasons that he understood the existence of other dispositions. Another option had been submitted as appropriate. His Honour formed the view that although imprisonment was a sentence of last resort, it was the only sentence in the present case.
51 It was contended that the learned sentencing Judge was obliged to set out reasons why other dispositions were not considered appropriate, but there is no obligation on a learned sentencing Judge to deal with all of the other sentencing dispositions which are open and explain why they have not been chosen: see R v Nevermann (1989) 43 A Crim R 347 per Malcolm CJ at 350:
"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."
52 The question in the appeal is whether the seriousness of the offences committed by the appellant was such that, notwithstanding her antecedents, the only sentences open were ones of imprisonment to be served immediately.
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53 Some additional material has been put before the Court which was not before his Honour. It was material annexed to an affidavit of the appellant sworn 16 May 2005 which was received in a bail application before Roberts-Smith JA: Hull v State of Western Australia [2005] WASCA 107. It reveals that the appellant's father has bowel cancer and diabetes, with a life expectation in the order of 6-18 months as at May 2005. It also reveals that the appellant's mother, who cares for her husband, has had hip replacement surgery and is busily engaged in the care of her husband. She had the care of the appellant's sons when the appellant was sentenced to imprisonment, but she describes it as "becoming hard on me as I'm not a young person and not fit myself". The appellant's mother mentioned that the appellant was giving domestic assistance by way of weekly cleaning of their house. The appellant contended in her affidavit that if she was not granted bail it would cause her parents and her sons hardship.
54 In my view, this was a case in which the sentencing discretion reposed in the learned sentencing Judge entitled him to reach the conclusion that a sentence of imprisonment, although a sentence of last resort, was the only sentence open in the light of the seriousness of the offences. The need for deterrence for offences which involved such a serious breach of trust committed by the appellant was, in my view, a valid consideration. I consider the case to fall squarely within the following statement of principle in Lowndes v The Queen (1999) 195 CLR 665 at [15]:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
55 It cannot be doubted that persons who hold public office have a duty to act honestly in the performance of their public duties. Breach of that responsibility will ordinarily carry a serious penalty: The R v Nath
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- (1994) 74 A Crim R 115 per Perry J at 119. In R v Bush-Jones (1989) 39 A Crim R 79, at 82, Brinsden J said (in the context of corruption by using influence in favour of subcontractors for reward):
"It is a truism to say that the type of offence dealt with by s 82 if committed on a large scale is likely to destroy the fabric of Government. It is essential if this community is to operate in a lawful and efficient manner those holding positions in the Public Service, and particularly with the right of selecting who may participate in contracts with the State, should be seen to be carrying out their duties honestly and without favour."
57 The Court of Criminal Appeal (Wallwork, Murray and Anderson JJ) dismissed the Crown appeal against sentence. Wallwork J (at 506) said:
"It was contended that in this case at the end of the day, there was an offender who was 41 years of age with a stable marriage and two young children, who had lost a career of 20 years and who had excellent character references from people in all sorts of organisations and that the learned sentencing judge to avoid ruining his life, had decided to suspend the sentence. It was said that this was precisely the type of case in which a suspended sentence could be imposed. That it was important that there had been a complete lack of monetary gain involved and that this distinguished this case from many cases of corruption which came before the courts.
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- In my opinion those submissions are correct and it has not been shown that the learned sentencing judge made any error with respect to the sentencing process. I would dismiss the appeal."
58 Murray J (at 507) said:
"I need not endeavour to add weight to the expression of opinion that this type of official corruption is to be deplored because of its serious consequences within the community and because of the erosion of confidence in the integrity of organisations such as the Police Service, but it is, I think, a powerful general deterrent that upon detection and conviction an offender is quite likely to confront a term of imprisonment of some substance which, unless suspended, will have to be served. In other words the point is made that such offences will very often be regarded by the courts as too serious to be punished by fine or some other non-custodial disposition, particularly if the commission of such offences is for gain or is otherwise symptomatic of a generally corrupt attitude towards the performance of the functions of the public office in question. In my view, considerations of general deterrence did not require the imposition of a term of imprisonment to be immediately served in this case.
As to the position of the respondent himself, there was every indication that the threat of suspended imprisonment would be a strong personal deterrent and provide considerable impetus to ensure that he did not offend again. In addition, the otherwise exemplary character of the respondent and the admirable way he had generally performed his duties over many years were powerful arguments in favour of a merciful disposition of his case."
59 Anderson J (at 509) said:
"All in all, therefore, the respondent presented as a person with impeccable antecedents, a 41-year-old family man with two young children, held in the highest regard by the community and colleagues and whose otherwise unblemished career, to which he was obviously devoted, was destroyed.
Plainly, his Honour considered that this case was a case in which the ordinary sentencing imperatives could properly be tempered with some degree of mercy. I am not persuaded that
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- he was wrong to come to that conclusion or that, in suspending the prison sentences his Honour made any error of principle. Even if his Honour's disposition of the matter was overly lenient, I am not persuaded that it is an appropriate case for this Court to intervene, having regard to the well settled principles applicable to Crown appeals against sentence, as to which see Grein at 180; 78."
60 R v Minchinton cannot be relied upon as authority for the proposition that a sentence of imprisonment to be served immediately cannot be imposed upon an offender such as the present appellant. It was a Crown appeal against sentence. One of the members of the Court described the suspended sentences imposed by the learned sentencing Judge as "a merciful disposition of the case" and another, a disposition which was arguably "overly lenient". In my view, it was a case in which the offender was dealt with extremely leniently and it illustrates the difficulty that the Crown (now State) has in overturning discretionary sentencing judgments such as that under consideration in the appeal.
61 In the present case there are a number of aggravating factors which, in my view, called for a deterrent sentence and one of imprisonment to be served immediately. They included the fact that the appellant was in a position of trust with in the State public service and had held office within that service for a period of 18 years, graduating to the position of senior CSO; she had shown elements of deceptive criminality by using the computer of another employee and reprocessing the transaction in relation to the issue of a driver's licence; she had further abused her position by committing the second offence after a member of the public had unwittingly uncovered what she had previously done; and, in committing that second offence, she compromised a fellow employee who was junior to her in arranging for her to perform an illegal act.
62 The learned sentencing Judge adequately referred to the personal circumstances of the appellant and took note of the services that she was rendering to her ill parents. I do not consider the illness of the appellant's father nor the disability of her mother to be compelling factors which would mitigate against a sentence of imprisonment to be served immediately. Nor do I consider the fact that the appellant has two 17-year-old sons to be sufficient to mitigate against such a sentence. It is apparent from the letter of the appellant's mother that she took over the care of those sons when the appellant was sentenced to imprisonment. In "S" v The Queen [2003] WASCA 309 at [21] – [24], I summarised the principles applicable to the circumstances in which account will be taken
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- of hardship to other members of an offender's family by pointing out that, generally speaking, hardship caused to the child of an offender is not a circumstance to be taken into account in the sentencing process. The degree of hardship would need to be exceptional if the parent of a child was to avoid imprisonment for that reason alone. However, as Franklyn J pointed out in R v Stewart (1994) 72 A Crim R 17 at 21, "It depends on the gravity of the offence and the circumstances of the case." In Hodder v The Queen (1995) 15 WAR 264 at 287, Murray J said that only in an exceptional case "quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the Court's sentencing disposition".
63 Of course, the Court will "draw back in mercy where it would, in effect, be inhuman to refuse to do so" (Hodder v The Queen per Murray J) but I do not see this case as in that category. The appellant's sons can be cared for by the appellant's mother and although it is true that the appellant's father has a limited life expectation, the actual period of life expectation is unpredictable. In all the circumstances, I consider the learned sentencing Judge imposed sentences which were a proper reflection of the seriousness of the offences committed by the appellant, particularly the breach of trust committed on her part after such a long period of employment within the State public service. It cannot, in my view, be said that sentences of imprisonment to be served immediately were inappropriate because there was the alternative disposition of a suspended sentence which was open. In my view, suspension of the sentences would have been inappropriate, primarily because of the seriousness of the offences, the circumstances in which they were committed, and the need for deterrent sentences for the offences of corruption and unlawful use of a computer. I would grant leave to appeal, but dismiss the appeal.
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