Hyland v Jenson
[2003] TASSC 141
•22 December 2003
[2003] TASSC 141
CITATION: Hyland v Jenson [2003] TASSC 141
PARTIES: HYLAND, Gerald Wayne
v
JENSEN, Kim Alan
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 90/2003
DELIVERED ON: 22 December 2003
DELIVERED AT: Hobart
HEARING DATES: 10 December 2003
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Dishonestly obtaining a financial advantage – Small sums – Whether imprisonment manifestly excessive.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: P A Warmbrunn
Respondent: F C Neasey
Solicitors:
Applicant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 141
Number of Paragraphs: 10
Serial No 141/2003
File No LCA 90/2003
GERALD WAYNE HYLAND v KIM ALAN JENSEN
REASONS FOR JUDGMENT BLOW J
22 December 2003
This is a motion for the review of a sentencing order made by a magistrate. The applicant contends that the sentence of 7 days' imprisonment, cumulative with another sentence being served by him, is manifestly excessive. In 1994 the applicant was sentenced to a total of 16 years' imprisonment with effect from 26 June 1993 for rape and manslaughter. On 31 July 2002 he was released on parole. The charges before the learned magistrate concerned the sale of raffle tickets between three and five months after that date. Each charge was a charge of dishonestly acquiring a financial advantage contrary to the Criminal Code, s252A. Each charge related to a raffle ticket priced at $2. The applicant pleaded not guilty to each charge, was tried before the learned magistrate, was convicted, and was sentenced to 7 days' imprisonment, cumulatively with his sentence for rape. By the time the learned magistrate sentenced him, his parole had been revoked, not just because of the raffle ticket charges, but also because he had left Tasmania without permission.
During October 2002 the applicant approached the manager of a charitable organisation called the Good Samaritan Society, and made an arrangement that he would do some fundraising sales work for it, selling things like key rings, pens and teddy bears. Without the knowledge of anyone from that organisation, he made arrangements for the sale of raffle tickets in its name. He recruited a number of people, including his daughter, to do voluntary work selling the raffle tickets. Each of the two charges relates to a raffle ticket sold by one of those volunteers. In each case, the applicant acquired a financial advantage for himself by causing an innocent volunteer to sell the ticket to a purchaser and to pay him the money received from that purchaser. That involved a deception, in that he deceived the volunteer and the purchaser into believing that there was a genuine raffle being run for the benefit of the charity. It involved dishonesty in that (a) there was no prospect of the purchaser winning a prize and (b) it was the applicant's intention to keep the money that was paid for the ticket, and not to remit any of the proceeds to the charity.
Although each of the two charges relates only to a two-dollar transaction, there are a number of aspects of this case that make the applicant's conduct very reprehensible. This scheme involved the deception of a number of other people, including the manager of the charity, the volunteers, and the ticket purchasers. It involved the exploitation of individuals willing to be generous with their time and their money in order to help others. It involved considerable planning. The scheme was persisted in by the applicant over a period of weeks, rather than involving a sudden or short-lived episode of dishonest conduct. The two offences of which he was convicted were not claimed to be isolated offences.
Whilst the applicant had not committed an offence involving dishonesty since 1981, some 12 years before the start of his long period of imprisonment, he had been to prison for crimes of dishonesty in 1972.
Viewed solely from the perspective that this was a case about $4, the sentence might seem excessive. However, taking into account all of the circumstances that I have referred to, I think the sentence was well within the range of penalties that the learned magistrate could properly have imposed. I think the conduct of the applicant in planning and implementing the scheme that led to the sale of the two raffle tickets involved a degree of criminality that made a short prison sentence appropriate.
In my view the fact that the applicant's parole had been revoked made any other sort of sentence somewhat inappropriate. The applicant will remain in prison until 2009 unless he is granted parole again. The learned magistrate was not in a position to predict when parole would be granted again, if ever. There were obvious disadvantages to the imposing of a suspended sentence, a community service order, or a fine upon a prisoner who might not be released for several years. The sentence did not result in the mental anguish that is suffered when a person at liberty is sent to prison, but involved the detention of a long-term prisoner for several more days. These factors could not make imprisonment appropriate in circumstances where it otherwise would not have been. However, in my view, once one accepts that these crimes were serious enough for imprisonment to be an appropriate penalty, these factors made imprisonment the most appropriate penalty.
When sentencing the applicant, the learned magistrate said the following:
"… the reality is you're serving a substantial term of imprisonment. That excludes the imposition of other penalties. What I must not do is to impose a heavier penalty on you because other penalties are excluded, but it does stop me from imposing more lenient penalties than a term of imprisonment."
I do not interpret those remarks as indicating that the learned magistrate had overlooked the wide range of penalties available under the Sentencing Act 1997, s7. I think the only sensible way to interpret those remarks is to regard the learned magistrate as talking about the practicalities of the situation that confronted him.
The learned magistrate also made a comment that it was "likely that there may have been many other victims in the conduct of a raffle such as this". However it is clear from what he went on to say that he was not improperly assuming that there had been other sales that were not the subject of evidence and findings of guilt. He went on to say, "I'm merely reflecting the potential for this sort of behaviour to involve a lot of victims in a small way each." It was appropriate for the learned magistrate to measure the extent of the applicant's criminality partly by reference to the extent of the plans that the applicant had made and implemented which resulted in the commission of the two offences. There was no suggestion that the offences were isolated ones, and it was therefore appropriate for the learned magistrate not to give the applicant any sentencing discount on that basis.
The principles to be applied in reviewing a sentencing order are set out in the following well known passage from the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 – 505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In my view it does not appear that the learned magistrate made any error in exercising his sentencing discretion. Taking into account all the matters I have referred to, I think the sentence of 7 days' imprisonment was not manifestly excessive. The motion to review is therefore dismissed.
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