Masling v The Queen

[2000] FCA 1146

FEDERAL COURT OF AUSTRALIA

Masling v The Queen [2000] FCA 1146

CRIMINAL LAW – sentencing – reference to the taking into account of additional offences under s 448 of the (ACT) Crimes Act 1900 – ACT practice upon acceptance of a plea of guilty.

Crimes Act 1900 (ACT), ss 104(1), 135C(1), 135C(2), 448

Jovanovic v The Queen (1999) 92 FCR 580

RONALD EDWARD MASLING v THE QUEEN

A 23 of 2000

BURCHETT, WEINBERG & KENNY JJ
CANBERRA
14 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 23 of 2000

BETWEEN:	RONALD EDWARD MASLING Appellant
AND:	THE QUEEN Respondent
JUDGES:	BURCHETT, WEINBERG & KENNY JJ
DATE OF ORDER:	14 AUGUST 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 23 of 2000

BETWEEN:	RONALD EDWARD MASLING Appellant
AND:	THE QUEEN Respondent

JUDGES:	BURCHETT, WEINBERG & KENNY JJ
DATE:	14 AUGUST 2000
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J delivered the judgment of the COURT

1. The appellant pleaded guilty to six counts of obtaining a financial advantage by deception, contrary to s 104(1) of the (ACT) Crimes Act 1900, four counts of making a false instrument (s 135C(1) of the same Act), and four counts of using a false instrument (s 135C(2)). He asked that 21 other offences be taken into account under s 448. The amount involved (in money and goods actually obtained) was $74,110, although the amount aimed at was substantially larger. The sentences imposed were three years on each of the group of six counts referred to, and twelve months on each of the other eight counts, all to be served concurrently, with a non-parole period of 18 months. Reparation orders were also made, totalling $54,110. The appellant now appeals against the severity of the sentences.

2. The grounds of appeal, as filed, were the following:

   “1.That the Learned Judge in passing sentences of imprisonment failed to act in accordance with the requirements of s.429c of the Crimes Act 1900.

   2.The sentences of imprisonment failed to adequately address the appellant’s rehabilitation.

   3.That the Learned Judge failed to take into account or to take into account adequately the appellant’s subjective circumstances including the reasons why the appellant committed the several offences for which he was then being sentenced.

   4.That the Learned Judge failed to consider adequately or at all the imposition of periods of periodic detention pursuant to the provisions of the Periodic Detention Act 1995 as an alternative to sentencing the appellant to terms of imprisonment.

   5.That the Learned Judge engaged in impermissible speculation as to the appellant’s future behaviour in coming to the view that no penalties other than sentences of imprisonment were appropriate in all the circumstances of the case.

   6.That the Learned Judge failed to give any or any adequate weight to the appellant’s professed desire to make financial reparation to the victims of his crimes and/or the appellant’s capacity to do so.

   7.That the Learned Judge failed to consider adequately or at all the application of Sections 556B and 556C of the Crimes Act 1900 to the circumstances of the appellant.”

3. The appellant, who is 45 years old, has a long criminal record, much of it relating to dishonesty.  The present offences relate to applications for loans and credit supported by deceptions and false documents.

4. The sentencing judge took account of the pleas of guilty, of the appellant’s desire to provide for his children, of his hope (which, on the evidence, could only be regarded as tenuous) of making some repayment, and of his protestations about the circumstances.  It was not, however, a hopeful picture.

5. The judge was entitled to conclude, as he did, that greed was a motivating factor, and that there was little sign of whole-hearted reform.  A custodial sentence, he considered, was required.  In our opinion, a custodial sentence was required as a proper punishment, and particularly as a firm deterrent.  The sentences imposed were well below the maximum, and well within the appropriate range. 

6. There is a passage in a pre-sentence report relating to earlier offences, of which complaint is made.  However, we can see no reflection of this in the reasons of the learned judge.   His Honour did say:

   “I was left with the disquieting feeling that the next time he was unable to pay school fees or that he had some particular need, he would be able to rationalise to himself the commission of further offences.”

   This, if it stood alone, would appear to be a reflection of the statement to similar effect to be found in the pre-sentence report, but it does not stand alone.  It follows reasoning which makes it quite clear that his Honour was not relying on the pre-sentence report, but was drawing his own conclusions from the evidence that was presented to him. 

7. A ground was also raised in respect of periodic detention, the appellant contending that an order of that kind ought to have been made.  However, under the legislation, periodic detention was not available in the particular circumstances, having regard to the length of the sentence which his Honour found appropriate. 

8. It is unnecessary to make specific reference to any other of the grounds, not all of which were pursued in argument. There is one technical problem. Section 448 of the Crimes Act enabled the 21 additional matters to be taken into account, but it did not make them offences charged, or permit them to become the subject of convictions.  Yet the language used by the judge literally suggests that, after dealing impeccably with the offences charged and imposing sentences in respect of them, his Honour purported to convict the appellant of the additional matters.  However, there is no formal document entering any such 21 convictions.  It seems to us the transcript is a little confusing, and perhaps the judge’s language was too.  It is to be found in a passage where, having discussed the considerations relevant to sentence and stated his conclusions, and indeed stated that he imposed the sentences, but without expressly making any statement that he entered a conviction on any of the counts, his Honour added:

   “I have taken into account the offences in the schedule and you will be convicted in relation to each of those offences.”

   Literally, of course, that suggests a conviction for the offences in the schedule. Nevertheless, in the context, we think the judge should be understood as adding, as an afterthought, a formal conviction of those offences to which the pleas related, as is the invariable practice in the Australian Capital Territory, convictions of which were actually implicit in the sentences. He was not imposing fresh convictions contrary to s 448. We have checked the final record made by the associate, which is called in the Australian Capital Territory, colloquially, the yellow sheet (see Jovanovic v The Queen (1999) 92 FCR 580), and satisfied ourselves that no convictions were in fact recorded for any of these 21 offences.

9. Accordingly, the only order required is that the appeal be dismissed, and we make that order.  These reasons are the reasons of the Court.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:  16 August 2000         

The appellant appeared in person
Counsel for the Respondent:	Mr K Archer
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	14 August 2000
Date of Judgment:	14 August 2000