Hume v Bessell

[1991] TASSC 139

Serial No B25/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Hume v Bessell [1991] TASSC 139; B25/1991

PARTIES:  HUME, Vicky Janine
  v
  BESSELL, Kerry Lloyd

FILE NO/S:  LCA 28/1991
DELIVERED ON:  20 May 1991
JUDGMENT OF:  Wright J

Judgment Number:  B25/1991
Number of paragraphs:  13

Serial No B25/1991
List "B"
File No LCA 28/1991

VICKY JANINE HUME v KERRY LLOYD BESSELL

REASONS FOR JUDGMENT  WRIGHT J

30 May 1991

1. This is a motion to review an order made in the Court of Petty Sessions at Hobart on 14 March 1991 whereby the applicant was convicted on 59 charges of stealing, contrary to s234 of the Criminal Code and was thereupon sentenced to six days' imprisonment on each charge, two days of each such sentence being suspended on condition that the applicant be of good behaviour for two years.

1. The grounds of appeal are as follows:

1That the sentences imposed were manifestly excessive.

2That the total sentence imposed was manifestly excessive.

3That the learned magistrate gave too much weight to the need for a sentence of general deterrence and insufficient weight to mitigating factors personal to the applicant.

4That the learned magistrate gave insufficient weight to the evidence concerning the applicant's psychological condition at the time of the commission of the offences.

1. The applicant, a married woman aged 33 years, was employed by the Australia and New Zealand Bank Ltd. The charges against her arose from her misappropriation of the bank's moneys between 30 May 1990 and 24 July 1990. The learned magistrate in his comments upon passing sentence said (inter alia):

"It was one of the duties of your employment to attempt to trace the owners of accounts which had not been operated for some time and which were referred to as inactive accounts. When the letters addressed to these account holders were returned to the bank you devised a scheme of transferring funds from these accounts into another account to which you would have access. You opened an account in the name of a Philip Ford being the name, as I understand it, of the holder of one of the inactive accounts and by using the electronic facilities you transferred funds from the inactive accounts into the Ford account. In order that you could operate on that account you made application for a card and a personal identification number. These were sent to the fictitious address of Ford and when returned unclaimed, they were intercepted by you and used to gain access to the transferred funds by means of the automatic teller machine. These steps were an essential part of your plan. The charges relate to the 59 occasions on which you used the machine to gain money. You therefore devised an elaborate scheme to steal the funds and you put a great deal of thought and preparation into putting that scheme into effect and, as a result of its operation, I was told that you obtained $11,651.65 that being the amount transferred to the Ford account. I was not told if you withdrew that total amount but I note that you were originally charged with the one count of stealing and the amount alleged in that complaint was $10,451.65. The offences were committed over a period of two months with a number of those offences being committed on the one day. The amount of money involved was significant, particularly when regard is had to the short period of time over which you perpetrated these acts of dishonesty, although the basis of the criminal conduct was the scheme to transfer funds from the inactive accounts and the obtaining of the means to access the account which you opened in the name of Ford, the complaint properly charges the 59 separate criminal acts. Although the conduct in each case was the same, that is by accessing the automatic teller machine, there was a time limit between each of those acts and ample opportunity for you to desist. Your conduct constituted a breach of the trust placed in you by the bank as your employer and your conduct was directed to an area of the bank's business activity which was particularly vulnerable to the type of criminal activity in which you engaged in that the likelihood of an enquiry or a transaction being made on an account which had been inactive for a period of time is much less than if the account is active. That is of course why these accounts were so tempting to you."

1. Counsel for the applicant did not seek to persuade me that the sentences individually were too severe, but it was submitted quite strongly, that the total sentence imposed upon the applicant was manifestly excessive. On the basis of the views expressed by the learned author of Principles of Sentencing, 2nd edn by DA Thomas at pp56–59, under the subject heading "The Totality Principle", it was submitted that the total cumulative sentence imposed upon the applicant in respect of all charges, should not have significantly exceeded the total sentence which could properly be imposed in respect of the most serious of any one of the individual charges. The greatest amount involved in any individual theft was the sum of approximately $800. It was thus argued that a total sentence of nearly 12 months' imprisonment was excessive in the circumstances.

1. In my respectful opinion this argument is simply not tenable. There were 59 separate charges arising from 59 separate criminal acts extending over a period of two months. The total amount misappropriated was between $10,000 and $11,000. The total sentence imposed by the learned magistrate, in my opinion, does not exceed that which could be properly imposed in respect of a single act of stealing a sum of $10,000 to $11,000 by an employee of prior good character in breach of trust. It is therefore plainly absurd to suggest that theft of the same amount of money, spread over a substantial period of time in a number of separate criminal transactions, should be dealt with any more leniently. In fact, there is good reason for regarding multiple thefts of this kind as more serious overall than one individual lapse.

1. An application of the totality principle plainly requires that an extravagantly long period of imprisonment should not result from dealing individually with a large number of criminal offences which, had they been viewed as part of an overall criminal enterprise, would not have resulted in incarceration for such a lengthy period of time. The Court of course, must always be on guard against producing such an unjust result, but in my opinion, the learned magistrate was clearly alive to this problem when he dealt as he did with each individual charge. It is plain from authority that a magistrate, sitting in the Court of Petty Sessions, is required to pass sentence upon each individual matter of complaint listed before him and there can be no doubt that the learned magistrate also had this factor in mind when he passed sentence. However, it is fairly clear, I think, that what he did was to calculate an appropriate sentence for the overall criminality involved in the applicant's conduct. He then imposed, in effect, a sentence of approximately one year's duration. To comply with legal requirements he distributed that total sentence among the 59 charges. Then, taking account of the applicant's steps to rehabilitate herself, he suspended a proportion of each individual sentence.

1. In Clark & Ors v Smith, Serial No B26/1987, I had occasion to make the following observations:

   "It is plain that, although multiple offences should not necessarily attract individual cumulative sentences, (see Bruce v The Queen [1971] Tas SR p22), encouragement should not be offered to those engaged in criminal activity to think that they may as well be hung for a sheep as a lamb. A court's failure to clearly distinguish between numerous repetitive offences on the one hand, and isolated crimes on the other, has this tendency. As a consequence I think it may be said that where, in cases of fraudulent conduct, a substantial sum is systematically misappropriated by a mature employee over a period of months or years without such mitigating factors as extreme financial need or mental or physical ill–health, a gaol sentence is called for. (See Thomas, Principles of Sentencing, 2nd edn p152, Pullen v The Queen 15/72 (CCA), Reynolds v The Queen 46/74 (CCA), and Grant v Davis 27/80 (Green CJ)).

   In Pullen v The Queen (supra) Burbury CJ said:

   '... It must be borne in mind that notwithstanding modern principles of indivualisation of punishment, that there are still many serious crimes which come before the Court in which the principle of deterrence overweighs the personal circumstances of the offender. It may be clear to a judge, in this sort of case, where there are multiple crimes of some seriousness, that whatever the previous character and personal circumstances of the offender may be, he has a duty to protect the community by imposing a substantial term of imprisonment'."

   In my opinion, the learned magistrate did not offend against the totality principle in acting as he did.

1. I turn now to consider grounds 3 and 4 of the motion to review.

1. In his comments upon passing sentence, following upon the passage quoted above, the learned magistrate said:

"I was told that you were a compulsive shopper who acted impulsively in buying goods and at the time of the commission of these offences you had a credit card debt of approximately $2,000 and a loan commitment of approximately $1,800 which you had used to pay earlier credit card debts. Some of the stolen money was used to pay those commitments. These factors do not mitigate the offences instead they provide a motive for your conduct and lead me to the conclusion that the motive was one of personal gain. Having used some of the money to pay the credit card and loan commitment, the substantial balance was used by you to satisfy your compulsion to spend money to make purchases of a personal nature. There was no element of need in the motivation for these offences. As a result of these offences you have of course lost your employment. You and your husband have separated as a direct consequence, although your marriage appears to have been not particularly secure immediately before you were charged. The matters referred to in Dr McCafferty's report explain why you were motivated as you were, but do not in any way diminish your responsibility. I take into account that you were under considerable emotional strain at the time of these offences and that you have sought treatment. You are 33 years of age without any previous convictions and the references attest to your previous good character and sound industrial record. When you became aware that enquiries were being made, you admitted your conduct to the personnel officer of the bank before you were confronted with any allegation and you have made full restitution of the money stolen. These are mitigating factors of a personal nature and are, of course, to be weighed with the need to impose a penalty that reflects your repeated acts of criminal dishonesty for personal gain and the need to impose a penalty which will deter others in a position of financial trust from acting in a like manner. I am required by law to sentence you on each charge and I do so having regard to what I consider is the appropriate total penalty for your criminal conduct. On each of the 59 counts in the complaint you will be sentenced to six days' imprisonment to be served at the expiration of each other. On each charge the last two days will be suspended on condition that you are of good behaviour for a period of two years following upon your release from prison. The effective immediate term of imprisonment is 236 days."

1. It was submitted that in dealing as he did with the applicant's mental condition at the time of these offences, the learned magistrate either misconceived, misconstrued or failed to give proper weight to the views expressed by Dr McCafferty, a consultant psychiatrist whose report was placed before the Court by defence counsel. In part, that report reads as follows:

"I thought the alleged offences had occurred while Mrs Hume's mood was depressed in response to certain personal and family problems. She had received what she believed was a poor work assessment from her supervisor at the bank in which she worked last year and, as a result, had felt undervalued by and resentful towards her employer. Also there was a specific problem related to her present husband's son, aged 9, from his previous marriage, with whom Mrs Hume had a difficult relationship. Mrs Hume believes her husband spoils his son during his regular access visits and this has been a considerable source of discord between them and of distress for Mrs Hume.

In my opinion she was suffering from an adjustment disorder with depressed mood in response to the above problems, this condition being present over the last six months, approximately.

I have now seen Mrs Hume on several occasions both individually and with her husband for individual and marital counselling. She is currently highly motivated for this treatment which is progressing well.

Given this motivation and the good use that she and her husband are making of counselling I would predict a good prognosis for her.

In my opinion, Mrs Hume has always suffered from low self esteem which she has attempted to compensate for by acquiring material goods for herself, thus getting into serious debt. Over the last 12 months there have been extra personal and family stresses which have further eroded her self esteem leading to her over spending to become further out of control."

1. In my opinion, the learned magistrate neither misapprehended nor misconstrued this material. In making submissions in mitigation to the learned magistrate, counsel for the applicant said:

"So it's in that report and in the material that I've put before your Worship that it's my submission can be found something of an explanation if not, of course, an excuse for the dishonest behaviour which brings Mrs Hume before this Court today."

1. In my opinion there was nothing in Dr McCafferty's report to suggest that his patient was suffering from a severe psychiatric illness or a psychological disturbance of such magnitude as to explain, of itself, the applicant's criminal conduct. In no other respect, was it contended that the learned magistrate had fallen into identifiable error in the way in which he approached the matter of sentence. In my opinion it is plain from what the learned magistrate said that he had regard to all relevant matters in deciding upon the sentences which he would impose. He neither disregarded nor undervalued the matters of personal significance to the applicant. He was entitled to balance the personal factors against the need for a generally deterrent sentence. It is plain that he did this with some care. An application to review sentences imposed by a magistrate cannot succeed simply because it can be shown that circumstances exist which may have led a judge reviewing the sentence to have imposed a different sentence himself had he been sitting at first instance. It is plain that error must be demonstrated or, if no identifiable error can be shown, that the sentences actually passed were manifestly erroneous. In my opinion, the learned and experienced magistrate showed care and balance in approaching the task before him. The sentences passed, in my opinion, were well within the exercise of a sound discretion.

1. The motion to review must be refused.