Langridge v R
[2004] TASSC 97
•8 September 2004
[2004] TASSC 97
CITATION: Langridge v R [2004] TASSC 97
PARTIES: LANGRIDGE, Jennifer Susan
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 117/2003
DELIVERED ON: 8 September 2004
DELIVERED AT: Hobart
HEARING DATES: 26 May, 25, 26 August 2004
JUDGMENT OF: Underwood, Evans and Blow JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Delay – First offenders - Suspension of sentence – What matters relevant to exercise of discretion.
R v Percy [1975] Tas SR 62; R v Causby [1984] Tas SR 54, not followed in part.
Dinsdale v R (1999) 2002 CLR 321, applied.
Sentencing Act 1997 (Tas), s7(1).
Aust Dig Criminal Law [853]
REPRESENTATION:
Counsel:
Appellant: P W Tree SC and K L Baumeler
Respondent: A R Jacobs
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 97
Number of Paragraphs: 36
Serial No 97/2004
File No CCA 117/2003
JENNIFER SUSAN LANGRIDGE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
EVANS J
BLOW J
8 September 2004
Order of the Court
Appeal dismissed
Serial No 97/2004
File No CCA 117/2003
JENNIFER SUSAN LANGRIDGE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
EVANS J
BLOW J
8 September 2004
The issue
The appellant was found guilty of 59 counts of fraud as a clerk or servant, contrary to the Criminal Code, s264. She was sentenced to three years' imprisonment. The learned sentencing judge ordered that the appellant not be eligible for parole until she had served one half of that sentence, the minimum period in custody permitted by the Sentencing Act 1997, s17(3). The appellant has appealed against that sentence upon the following grounds:
"1 The sentence was manifestly excessive.
2 The sentence failed to take into account the sentencing regime as expressed in the Sentencing Act.
3 The learned sentencing judge erred in:
(a)rejecting that the crimes were conducted under emotional pressure;
(b)rejecting that the delay in bringing the matter to trial was a relevant consideration.
4 The learned sentencing judge erred by giving insufficient weight to:
(a)the lack of any personal gain to the appellant;
(b)the absence of likelihood of re-offence [sic]
and, by giving excessive weight to;
(c)the appellant's failure to accept criminal responsibility (as distinct from personal responsibility) for the conduct; and
(d)the appellant's failure to make restitution (in circumstances where personal gain was absent).
5 The learned sentencing judge erred by failing to suspend any part of the sentence."
Senior and junior counsel for the appellant addressed argument with respect to grounds 3, 4 and 5. No additional argument addressed grounds 1 and 2. Senior counsel for the appellant, Mr Tree SC, said that the argument put in support of grounds 3, 4 and 5, encompassed the arguments that could be put in support of grounds 1 and 2.
The proceedings on appeal
It is necessary to note that the trial occupied about three weeks and involved five large volumes of documents and many witnesses. The factual circumstances that gave rise to the commission of the crimes were complex and most unusual. The appellant was acquitted on 9 charges of fraud as a clerk or servant and of 1 count of stealing. The material initially put before this Court comprised:
· the indictment;
· a statement of agreed facts tendered in evidence at trial;
· a transcript of the proceedings after the findings of guilt, and documents tendered at that hearing;
· 19 selected pages of transcript of evidence given at trial; and
· a book containing a selection of the documentary exhibits tendered at trial which Mr Jacobs, counsel for the respondent, asserted were examples of the different kinds of frauds committed by the appellant.
This approach put the Court in the position of not being able to ascertain the basic facts upon which the impugned sentence rested, except insofar as they were expressed by the learned sentencing judge in his comments on passing sentence. To resolve this problem, counsel for the appellant produced a short document entitled, "Appellant's Summary of Nature of Case". After some discussion between counsel and amendment, this document was agreed to be an accurate summary of the nature of the case. We set it out:
The facts
"dickenson's travel generally
1 Dickenson's Travel had operated as a domestic and international retail travel agency in Moonah for over 40 years. It was purchased by Mr Bardenhagen and his wife in 1995. At that time it had 4 full‑time employees and two part-time employees. At the time that it ceased trading it had 4 employees and an annual turnover of about $1.6 million.
the appellant's role and duties
2 Ms Langridge was first employed by the business between 1989 and 1995. She returned in 1996, and worked on the international travel side of the business. Although a Mr Tilley was the overall manager, he only worked part‑time in the business. Effectively, Ms Langridge worked without direct supervision. She did however report from time to time to Mr Tilley and Mr Bardenhagen, but in no sense was that on a day to day basis.
3 The appellant's duties were not exhaustively listed in the evidence. Relevant duties were however identified. In broad terms, those duties were to undertake all work necessary to arrange international travel for clients of Dickenson's Travel. That involved her seeing the clients personally at the travel agency, making bookings for the purchase of their travel, accommodation and the like, arranging for the purchase by the travel agency of fares and accommodation etc, and receiving monies from the client. Payment to the travel service providers was automatic consequent upon the ticket issuing. Most of this work was done via a computer, linked to the internet, which enabled her to effect the necessary transactions. She was also responsible for maintaining the individual client trip file within Dickenson's Travel [sic] own computer system. Essentially this is a record of the itinerary, service providers and payments in respect of the clients. Printouts of screens of client trip files appear throughout volume 2 of the Appeal Book.
systems in operation
4Dickenson's Travel operated one bank account. It made profit by selling travel products at more than it had bought them for. However it did not necessarily actually purchase the travel product at the time that it sold it to their clients. When it received funds from a client, it would ordinarily receipt them into its bank account, unless they were paid by credit card, in which event the credit card supplier would eventually make a payment to the bank account.
5When a client attended the agency, a trip file would be opened in respect of them. That trip file was intended to contain a complete set of receipts and payments regarding the particular travel, and should automatically have come back to a nil balance when the client paid for their travel. Therefore in the ordinary event there should not have been long term debtors in the business. About monthly there were reports raised in relation to all employees in the business as to outstanding balances. A set of those in relation to the appellant is at pp73 to 76 of the Appeal Book. It shows a balance due of $94,854.38. Earlier outstanding balance reports in respect of her had been raised with the appellant by Mr Bardenhagen and/or Mr Tilley, but they had never been rectified.
actus reus in groups
6The respondent at trial and on this appeal asserts that the appellant engaged in 30 methods of fraud. This is not disputed.
7Eight particular types of conduct were identified by the sentencing Judge in his Honour's summing up to the jury, although this necessarily encompassed the charges of which the appellant was acquitted. They were as follows:‑
1 The appellant would put receipts and debits of specific clients on different files or split receipts and payments into two amounts and post them separately;
2 The appellant did not record credits or debits or didn't bank relevant monies. She would get in money early to hide past debt [from other client files];
3 The appellant would hide the record trail by creating false names, creating false invoices or credits;
4 The appellant would use composite files (for a corporation or family) and mix up entries on the file or deliberately misplace tickets;
5 The appellant would intercept or remove mail and other documentation from providers, hence preventing management from understanding the full transaction trail;
6 The appellant would transfer balances between trip files within the system, often in very precise amounts;
7 The appellant would on occasion misuse credit cards;
8 The appellant would either fail to create trip files, of [sic] mix up family names or transpose corporate names on trip files.
8Although noting that there were some 30 forms of conduct relied upon by the Crown, this distillation of them was not objected to by the Crown, nor was any redirection sought.
the basis upon which intent to defraud was put to the jury
9The Judge's memorandum to the jury is attached. The learned trial Judge did not sum up intent to defraud by reference to groups, but made some general comments about intent to defraud, and then addressed individual charges separately. Aspects of the general discussion of the intent to defraud were:
· personal benefit was not necessary;
· motive was not necessary;
· there must have been an intent to deceive the employer;
· there must be either altering, destroying or falsifying a record, or omitting any particular from a document;
· incompetence was insufficient, as was laziness;
· what was essential was an entry intended to deceive the owner.
appellant's reasons for commission of crime
10The appellant did not give evidence. Her two records of interview were in evidence. These did not contain admissions. Her explanation for the conduct (not admitting criminality) was that she was under a lot of pressure, under resourced, and particularly did not have enough time to chase airlines and other travel service providers for refunds which she said were due.
appellant's knowledge of effect and consequences of conduct
11There was no direct evidence as to this at all."
The most unusual aspect of the appellant's crimes was that there was no evidence that she gained financially from their commission and indeed, no evidence from which her motivation for the commission of these crimes might be inferred. However, Mr Jacobs correctly put to the Court that over a period of two years, the appellant created a large number of documents calculated to deceive her employer and which caused her employer to suffer very considerable losses . It appears that the system at Dickenson's Travel was to create a new file for each trip taken by a customer ("a trip file"). The methods used by the appellant to defraud her employer included:
· crediting a payment to a trip file not associated with the payer;
· transferring a debit from one trip file to another, unrelated trip file;
· debiting the cost of a customer's tickets to an unrelated trip file;
· creating fictitious trip files and crediting and debiting travel payments by various customers to them;
· making false entries to a trip file to make it balance;
· opening two trip files for one trip and making unrelated credits and debits to one of them;
· using the name of current customers to disguise free travel for a person not connected with that name;
· issuing tickets with false passenger names;
· issuing tickets without making any record of them in the system;
· re-crediting ticket cost to put the file in balance by making a debit on an unrelated trip file;
· failing to receipt or bank or otherwise account for payments received;
· creating false cheque requisition forms;
· falsely claiming that refunds were due from airlines for travel incorrectly alleged not to have occurred.
So far as we understand it, the principal beneficiaries of the appellant's criminal conduct were customers of her employer who were given travel upgrades at no cost to them and who were provided with travel and holiday packages at considerably less than their actual cost, all at the expense of her employer. Why the appellant did this was never explained.
The learned sentencing judge found that the 59 counts of fraud were committed between August 1998 and September 2000. They caused the collapse of the appellant's employer with a loss, direct and indirect, of some $600,000. He said:
"The complexity of the methods employed by the offender makes it difficult to determine with precision the actual direct loss, but it amounted to a sum of between $220,000 and $250,000. In addition losses incurred after the offender quit her employment amount to a further $60,000."
With respect to the circumstances of the offence and the circumstances of the offender, the learned sentencing judge said:
"Ms Langridge was employed as a travel agent. She was entrusted with the handling of bookings, travel arrangements and the receipt and expenditure of money. She had virtually unrestricted access to the computer programs and records of the company. She was able to use the computer program to create false entries, transfer genuine transactions to unrelated matters, and create records which either hid transfers or presented false entries as real. Her methods ranged from the simple falsification or non-recording to multiple and complex transfer of identities, allocations, entries and transfers. Loss was caused to the clients and the company alike.
The offender, aged 43, is single and has no previous convictions. She quit her employment when discovery appeared inevitable. She left Tasmania and was returned through extradition. She had obtained employment in Queensland and is well regarded by her former employer. She is unlikely to re-offend. However, any claim she might make of good character is destroyed by the length and extent of her dishonesty. She has shown little, if any, remorse for her conduct, maintaining that the crimes were committed through mismanagement and pressure. The Court does not accept that claim. Her conduct was conscious, required planning and occurred over a long period of time. She knew what she was doing."
Ground 3(a)
This ground alleges that the learned sentencing judge made a factual error, apparent in the third last sentence of the passage we have just set out, in rejecting that the crimes were conducted under emotional pressure. In support of this ground, Ms Baumeler, junior counsel for the appellant, relied upon a written report from a psychiatrist, Dr O'Donnell, tendered on behalf of the appellant during the sentencing hearing. As we understand the submission, it is that the only material before the learned sentencing judge concerning emotional stress was that contained in the psychiatric report and therefore the only finding reasonably open to the learned sentencing judge was to make findings in accordance with that report. The first thing to say about this ground is that the expression "emotional stress" is not used by Dr O'Donnell in her report at all. However, she does refer to "work stresses and demands seemingly contribut[ing] to a situation where Ms Langridge was socially and occupationally impaired and unable to act in her own best interests".
The second thing to say about the psychiatric opinion is that it is primarily based upon a history given by the appellant and two short interviews with two members of her family. This history is at odds with the findings of the jury and quite contrary to the evidence given by her employer's manager, Mr Bardenhagen. For this reason alone, it certainly could not be said that the learned sentencing judge erred in fact in "rejecting that the crimes were committed under emotional pressure".
Ground 3(b)
This ground alleges that the learned sentencing judge erred in rejecting that delay in bringing the matter to trial was a relevant consideration. With respect to the issue of delay, this Court stated the law in Prehn v R [2003] TASSC 55 at par 21 in the following terms:
"Delay between the commission of an offence and final disposition of a case is not per se mitigating, but it may work in favour of an accused if it is not attributable to the fault of the accused. As stated in R v Schwabegger [1998] 4 VR 649 at 659, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable and a legitimate sense of unfairness can develop when the criminal justice system proceeds in what can be perceived as too leisurely a fashion. Weight can be given to evidence of rehabilitation demonstrated by the accused in the meantime and to the circumstance that he or she has been left in a state of uncertain suspense as to what would happen when in due course he or she came up for sentence for crimes committed some years before, in this case between four and seven years before. If the relevant delay is significant, it may amount to a powerful mitigatory factor in an appropriate case. R v Schwabegger at 660; R v Todd [1982] 2 NSWLR 517 at 519 - 520; R v Law, ex parte Attorney-General [1996] 2 Qd R 63 at 66. 'Passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.' R v Todd at 519 - 520."
The learned sentencing judge referred to this statement of law when he said at the time of passing sentence upon the appellant:
"Her counsel advanced as a further mitigating matter the length of time taken to complete these proceedings and the impact of delay on her. That contention is rejected. This is not a case such as those considered in Prehn [2003] TASSC 55 and Schwabegger (1998) 4 VR 649. In this case the offender left the jurisdiction in September 2000 and was not arrested until May 2001. Following a number of appearances, she elected the examination of witnesses which was held in March 2002. She was committed for trial in May 2002. She has always been on bail, and between 6 May 2002 and September 2003, was not required to attend the Court on remand days. The complexity of the proceedings, Court time and observance of her rights, contributed to any delay in the completion of the proceedings. No allowance is made."
It is quite clear from the foregoing that the learned sentencing judge correctly stated the relevant law and concluded that upon the facts of the matter at hand there should be no reduction in an appropriate sentence due to delay. It is not asserted that his Honour made any error of fact when dealing with this aspect of the sentence and we can detect no error in the exercise of the sentencing discretion in this respect. Ground 3(b) is not made out.
Ground 4(a)
This ground alleges error by giving insufficient weight to the lack of any personal gain to the appellant. The written submission in support of this ground is founded upon the following passage in the comments on passing sentence:
"It is the conduct produced by the guilty mind which is the subject of sanction, not a claim of absence of personal benefit which ought govern its assessment."
That it is obviously a correct statement of the law. It clearly was not a statement that lack of personal gain to the appellant is not a relevant factor in the sentencing process as was put in the appellant's written submissions. Indeed, the next passage in the learned judge's comments on passing sentence makes it clear that he did consider lack of personal gain to be a relevant factor for he referred to R v Thorne [1999] SASC 408 and observed that the court in that case did not attach much weight to lack of personal gain. No specific error is made out under this head. Whether there was some undefined general error will be considered later, for this ground is really no more than a particular of the general complaint that the sentence is manifestly excessive.
Ground 4(b)
This ground alleges that error occurred in giving insufficient weight to the absence of likelihood of re-offending. This ground is based upon the following passage in the comments on passing sentence:
"However, any claim she might make of good character is destroyed by the length and extent of her dishonesty. She has shown little, if any, remorse for her conduct, maintaining that the crimes were committed through mismanagement and pressure."
The written submission contends that:
"It therefore seems [from that passage] that the absence of any likelihood of re-offence was seen by the learned sentencing judge to be irrelevant in the sense that the learned sentencing judge found that notwithstanding that, she was not of good character."
We are of the opinion that this contention proceeds on a misunderstanding of his Honour's comment. His Honour was stating no more than the obvious, namely, that although the appellant has no prior convictions, and normally, that supports a claim for mitigation by reason of prior good character, in this case that claim is negatived by the fact that she had been committing crimes against her employer for a period of two years. There is no substance in this ground. Like the previous ground, it is no more than a particular of the general ground that the sentence is manifestly excessive.
Ground 4(c)
This ground is a complaint that error occurred by giving excessive weight to the appellant's failure to accept criminal responsibility, as distinct from personal responsibility.
Mr Tree submitted that the learned sentencing judge fell into error by placing any weight at all upon the appellant's failure to accept criminal responsibility when the psychiatric opinion was that the appellant had accepted personal responsibility. In his comments on passing sentence, the learned sentencing judge quoted this passage from Dr O'Donnell's report:
"It is my recommendation that Ms Langridge's mental state at the time of the index offences, compounded by the limitations posed by her personality and interpersonal style profile, be considered in the evaluation of her offending behaviour. Ms Langridge accepts that her mismanagement has led to considerable financial loss for the owners of the business. She realizes that she failed in her management role when confronted with challenges that overwhelmed her abilities, and accepts responsibility for this failure. Clinical indicators suggest that the risk of recidivism is extremely low. It may to [sic] appropriate to consider community service as a component of Ms Langridge's sentencing, as it is evident that she can contribute productively and positively to society, despite these offences."
His Honour then observed, "The history provided by the offender as reflected in that summary shows that she has yet to accept responsibility for criminality". We understand his Honour to be stating that the reference to "mismanagement" and the failure "in her management role when confronted with challenges that overwhelmed her abilities" demonstrate that notwithstanding the verdicts of the jury, the appellant has not accepted that her conduct was criminal. That observation was correct and apposite, and does not show error by giving weight to a failure to accept criminal responsibility, as distinct from personal responsibility.
Ground 4(d)
This ground asserts that error occurred by giving excessive weight to the appellant's failure to "make restitution (in circumstances where personal gain was absent)".
Mr Tree referred to the following passage in the comments on passing sentence:
"No restitution has been made and there can be some equivalence between the factor of absence of personal gain and that involving restitution and repayment of loss incurred to an employer (Attorney-General v Saunders [2000] TASSC 22)."
That observation is no indication that the learned sentencing judge placed too much weight on the appellant's failure to make restitution. We understand his Honour to have been observing that the discount for restitution may be about the same as the discount for absence of personal gain. Mr Tree conceded that if that was the view of this Court, then his complaint would not be established.
Ground 5
Mr Tree submitted with respect to this ground that, in essence, the appeal was about error in failing to suspend the operation of all or part of the sentence of imprisonment. He accepted that even if a ground which alleged specific error was successful and resulted in a resentencing by this Court, a sentence in the order of three years was within the proper exercise of the sentencing discretion. However, his submission was that the circumstances surrounding the offence and those of the appellant were such that the execution of the whole or, at least, a very substantial part of that sentence should have been suspended. He contended that because of:
· no personal gain;
· no apparent motive;
· no risk of recidivism;
that a sentence of personal deterrence was not appropriate. Further, he submitted that there was no need to impose an actual custodial sentence as a general deterrent because there were very few frauds committed that were not for personal gain. Mr Tree submitted that it was not appropriate to leave the date of the appellant's release from prison to what he called the vagaries of the Parole Board. He submitted that the appellant was entitled to certainty in the sentencing process as at the time sentence was imposed.
For many years the conventional wisdom with respect to the proper exercise of the discretion to suspend the execution of the whole or a part of a sentence of imprisonment was to be found in the following passages taken from the judgment of Neasey J in R v Percy [1975] Tas SR 62 at 73 – 74:
"However, it is almost self-evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or of the offender, that remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve [sic] that reformation.
In any particular case there may be such mitigating circumstances relating to an offender or his offence that a sentence of imprisonment, or indeed any other penalty, would not be imposed where in the absence of mitigating circumstances it would have been appropriate. But I should have thought it rare that a sentence of imprisonment would be suspended on account of mitigating circumstances. In my view the logic of the process is to take mitigating circumstances into account in deciding what the proper penalty is, and then if imprisonment is thought to be appropriate to consider suspension of the sentence if the prospect of rehabilitation is a sufficiently weighty factor in all the circumstances to warrant suspension. However, I do not presume to suggest that there is only one valid way of approaching the matter."
Those views have been endorsed by this Court and by single justices of this Court. See R v Causby [1984] Tas SR 54; Eastwood v Pearce 3/1985; Rowe v R 26/1997; Burk v Dunham [1999] TASSC 35. However, over the years doubts have been expressed from time to time about the correctness of the proposition that it is only in very exceptional cases that mitigating circumstances will operate to suspend the execution of a sentence of imprisonment. Some of these cases are referred to in Sentencing in Tasmania, Professor Warner (2nd ed), par9.208. A perusal of the Court's sentencing database shows that on many occasions the execution of an appropriate sentence of imprisonment has been conditionally suspended because of mitigating factors and not solely to "move the offender towards reform of his conduct as to achieve that reformation". Wright J made his views on the matter quite clear when sentencing a 34 year-old man for stealing from his employer (Noble, 4 February 1992):
"I am very much aware of what was said by Neasey J in Percy's case concerning the circumstances in which a sentence may be suspended. I should make it clear that in my view, a suspended sentence is not confined to those cases where the act of suspension of itself is likely to move the offender to resile from a course of criminal conduct. I think it is also appropriate to impose a suspended sentence sometimes in those cases where a person of previous good character has committed a serious offence which normally would have itself called for the imposition of an immediate custodial sentence where that person, prior to his appearance in court, has by his actions, demonstrated genuine contrition for his conduct and whose resolve to avoid further criminal conduct may well be reinforced by the suspension of the sentence to the same extent as it may have been reinforced by the imposition of an actual period in custody.
I should perhaps also add that it may also be appropriate in cases in which there is some special circumstance falling short of an actual lawful excuse for the criminal conduct in question."
Underwood J had occasion to refer with approval to this approach by Wright J in Brinkman v Fishpak Pty Ltd 134/1997 at 14. It may be noted that in Percy, Neasey J concluded the passages that are set out above with the rider that there is not necessarily only one valid way of approaching the issue of what factors are relevant to the suspension of a sentence of imprisonment.
Since Percy was decided the Parliament has passed the Sentencing Act 1997. That Act, s3, sets out the purpose and objectives of the legislation, and s7 provides suspension of the execution of a sentence of imprisonment as a sentencing option. It seems to us that so far as is relevant for these reasons, the Act did not alter the common law.
The High Court considered the Sentencing Act 1995 (WA) in Dinsdale v R (1999) 2002 CLR 321. Although the provisions in that Act concerning the imposition of a suspended sentence are more detailed than the equivalent provisions of the Sentencing Act (Tas), the relevant effect of the two statutes is indistinguishable. In the Western Australian legislation the imposition of a suspended sentence is one of a number of sentencing options as is the case in the Tasmanian legislation. The Sentencing Act (WA), ss6, 7, 8 and 39(3), require a court to be satisfied that a penalty short of an order of imprisonment is not an appropriate option, before ordering such a sentence. Sections 6, 7 and 8 basically enact the common law with respect to the proper exercise of the sentencing discretion. The Sentencing Act (WA), s76(2) provides:
"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."
This provision also reflects the common law. See R v O'Keefe [1969] 1 All ER 426; Paterson v Stevens (1992) 57 SASR 213 at 217; R v Palliaer (1984) 35 SASR 570 at 571; R v Dowie [1989] Tas R 167. However, this approach is not without its critics. See Weber v Janic (1977) Crim LJ 112 and commentary by Professor Rinaldi and Professor Bagaric, Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishments (1999) 22 University of New South Wales Law Journal 535.
Thus, it appears to us that the reasoning in Dinsdale applies to the Sentencing Act (Tas), insofar as that Act provides for the imposition of suspended sentences. Gleeson CJ and Hayne J expressed the view at 329 that, "The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation." At 330, Gaudron and Gummow JJ said that they agreed with Kirby J that, "the power to suspend given by s76(1) of the Sentencing Act, which is limited by the criteria specified in s76(2), (3) [the latter not presently relevant], is not confined by reference wholly, mainly, or specially to the effect the suspension would have on the rehabilitation of the particular offender". Kirby J pointed out at 345, that the power to suspend a sentence of imprisonment exists in the federal jurisdiction and in every State and Territory jurisdiction. He then said:
"Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified."
Kirby J reaffirmed the principle that the first step is to impose a sentence of imprisonment that is appropriate in the circumstances of the case and the separate, next step is to consider whether its execution should be wholly or partly suspended. He said, at 346 – 347:
"The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.
A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis."
Kirby J then referred (inter alia) to Percy and Causby and the principle that, as he said, "the primary consideration" in the exercise of the discretion to suspend is the effect of the order on the offender's rehabilitation and said, "But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis." He concluded his reasons on this aspect of the case that there is an obligation to consider "all the circumstances of the case."
We are of the view that insofar as Percy and Causby are in conflict with Dinsdale the former should no longer be regarded as good law, and that all the circumstances of the case are relevant to the exercise of the discretion to conditionally suspend the whole or a part of a sentence of imprisonment that is appropriate to the case. We confirm the tentative views expressed to this effect by this Court in Hawkins v R [2004] TASSC 55.
The number of counts on which the appellant was found guilty, the length of time over which the crimes were committed and the amount of the loss caused by the commission of the crimes makes it clear that the sentence of three years' imprisonment was within the proper exercise of the sentencing discretion. The fact that there was no evidence of personal gain was a relevant circumstance both to the fixing of the sentence and to an order of suspension of its execution. On the other hand, there was simply no evidence to explain the criminal conduct. Apart from perhaps, the occasional case, it was not established that the appellant intended to confer particular favours on friends or relatives. The psychiatric report negatived any psychiatric illness or disorder which might explain the appellant's criminal conduct. The appellant's claim that she just got in a muddle was rejected by the verdicts. It is true that it was unlikely that the appellant would re-offend but then it was unlikely that she would ever be in a position to do so. The learned sentencing judge was in the position of having to sentence for a large number of very serious frauds that were committed for an inexplicable reason, over a sustained period of time in circumstances in which the appellant gained nothing for herself. The commission of these crimes constituted a gross breach of the trust which was vested in, and accepted by the appellant. It is also true that the commission of the crime of fraud for a motive other than personal gain is a rarity, but this does not reduce the need to denounce the appellant's criminal conduct committed without explanation. In these circumstances we can see no error in failing to order a conditional suspension of the whole or any part of the appropriate sentence. We might add that an order of suspension of the execution of a long sentence is seldom appropriate because the factors that called for the imposition of such a sentence would normally negative the making of an order of suspension. Further, the fixing of the minimum non-parole period was an appropriate course to take as the Court had no information at the time of sentencing to explain the criminal conduct and thus indicate an earlier release period by way of suspension of execution of some part of the sentence.
The appeal is dismissed.
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