Millikan v Wilkinson No. Scgrg-98-1504 Judgment No. S119

MILLIKAN v WILKINSON
[1999] SASC 119

Magistrate’s Appeal

MARTIN J. By complaint dated 15 May 1997 Anthony Wilkinson (“the defendant”) was charged with eleven offences against s120 of the Worker’s Rehabilitation and Compensation Act 1986 (“the Act”). The learned Special Magistrate found ten charges proven, but declined to record a conviction. He imposed a single penalty of $5 000 and made an order for reparation in the amount of $1 826.72. He ordered that the defendant pay court fees of $94, prosecution costs of $5 628 and costs of investigation fixed at $5 780. Count 9, the alternative to count 8, was dismissed.
By notice of appeal dated 7 December 1998 the complainant appealed against the sentence imposed in so far as the Magistrate had declined to record a conviction.
Judgment was delivered on 6 October 1998 and penalty imposed on 20 October 1998. It appears that the defendant wanted to appeal against the findings of guilt and sought legal advice. Some confusion arose as to the form and court in which the appeal should be instituted, the details of which it is not necessary to canvass. Ultimately, by notice dated 18 January 1999 the defendant appealed against the finding of the Magistrate that the charges had been proven. He also sought an extension of time within which to appeal.
I have considered the affidavits of Donal George Craig sworn on 22 December 1998 and 15 March 1999 and the affidavit of the defendant sworn 22 December 1998. Counsel for the complainant ultimately did not oppose an extension. I was satisfied that this is an appropriate matter in which to grant the necessary extension of time and made an order accordingly.
The first seven counts charged the defendant with obtaining by dishonest means a payment or other benefit under the Act contrary to s120(1)(a) of the Act. In essence it was alleged that from about September 1994 until about 9 November 1994, on seven different occasions while he was in receipt of income maintenance benefits of $852.18 per week from WorkCover Corporation (“WorkCover”), the defendant performed work for R C Harrison and Associates (“Harrison”) and was paid for that work knowing he was not entitled to the receipt of both the WorkCover benefit as well as the payments from Harrison. Those particulars set out the dishonest conduct alleged against the defendant, but did not address the issue of causation, namely, how the “dishonest means” resulted in the defendant obtaining a payment or other benefit from WorkCover. No point was taken before the Magistrate or on appeal that the defendant was disadvantaged by the lack of particulars as to causation.
Count 8 alleged that on 13 March 1996 the defendant dishonestly made a statement about a claim under the Act knowing the statement to be false and misleading contrary to s120(1)(c) of the Act. The essence of the particulars was that on about 13 March 1996, in a request for proof of earnings form sent to the defendant by Mercantile Mutual Insurance (SA Worker’s Compensation) Ltd, the agent for WorkCover, the defendant was asked to specify his income for the 1994-1995 financial year and falsely stated he had received gross earnings of $7 972 for a period from 8 March 1995 to 30 June 1995. It was alleged the statement was false or misleading in that he dishonestly omitted to mention income received by him in 1994 from the same employer. Count 9 was an alternative to count 8 and alleged that on about 13 March 1996 the defendant gave a return under the Act knowing that return to be false or misleading contrary to s120(1)(d).
Counts 10 and 11 charged that on about 29 July 1996 the defendant dishonestly made statements about a claim under the Act knowing the statements to be false or misleading contrary to s120(1)(c). Both counts related to a record of interview conducted by WorkCover investigating officers. Count 10 alleged that the defendant dishonestly and falsely stated that all moneys he had earned by performing surveillance or process serving work with Harrison was included in his 1995 group certificate, when the certificate did not take into account earnings received by him from that employer for such work during 1994. The false statement charged in count 11 was based on his assertion to the investigator that he had advised Ms D Renfrey of WorkCover of earning $2 050.00 from Harrison in 1994 performing sub-contract work, whereas he had not informed Ms Renfrey of those earnings while he was in receipt of income maintenance benefits from WorkCover.
The trial took place over a number of hearing days during the period 22 December 1997 to 15 June 1998. By agreement the matter was then adjourned to 17 August 1998 for the parties to provide written submissions to the Court. On that day the hearing was further adjourned to enable his Honour to arrive at his decision.
Except for minor factual errors, the background findings of the Magistrate are not challenged. The defendant had been a ceiling fixer by occupation and injured his back in June, 1989. As a result of that injury he underwent an operation in October, 1990 in which particular vertebrae were fused together. After about three months he returned to employment of a different nature, but was paid less by his employer. He was, therefore, reimbursed by way of a top-up of his income by WorkCover.
Subsequently the defendant joined the WorkCover RISE scheme which was a scheme developed by WorkCover with a view to encouraging injured workers back into full time employment. Suitable employers are sought to take on and train candidates in alternative forms of employment with the ultimate aim of the worker regaining full time employment with that particular employer. During training, WorkCover refunds the employer a percentage of the worker’s wages while at the same time topping up the worker’s wages to their notional pre-injury level. After a period of twelve months, the top-up drops to 80 per cent of the difference between the wages given to the injured worker and the notional wage.
In 1994 the defendant commenced work under the scheme with a private investigation firm. That employment lasted only a short time and the defendant searched for work with larger companies within the field of investigations. One such company, Harrison, became the focus of the charges.
According to the prosecution case, officers of WorkCover Corporation explained to the defendant that he was not permitted to work for any company or person and receive income while in receipt of the income maintenance package from WorkCover. It was the prosecution case that while the defendant disclosed some contact with Harrison, and subsequently brought WorkCover into an agreement for employment by Harrison in 1995, during 1994 he was employed with Harrison and received income from that firm without notifying WorkCover. It was the prosecution case that this occurred while the defendant was receiving his full income maintenance from WorkCover. As a consequence of the misleading and dishonest omission to advise WorkCover of the 1994 income, it was said the defendant obtained the weekly payments from WorkCover specified in counts 1-7.
The prosecution case in respect of counts 8 and 9 was based on information provided by the defendant on a proof of earnings form sent to him by an agent for WorkCover in March 1996. The critical question asked whether the defendant had “received any income from employment (other than WorkCover payment) in the 1994-1995 financial year”. He answered positively, but in giving details stated that he had received gross earnings from Harrison of $7 972 for the period 8 March 1995 to 30 June 1995. It was the prosecution case that the statement was false or misleading in that he dishonestly omitted to mention the income received from that employer in the latter half of 1994.
As mentioned previously, counts 10 and 11 related to allegedly dishonest statements made in a record of interview conducted by an official from WorkCover.
The critical witness in the prosecution case was Ms Di Renfrey, a representative of WorkCover. She gave evidence that she advised the defendant in early 1994 that all moneys, even expenses, had to be declared to WorkCover. She denied that the defendant ever suggested to her in 1994 that he was in paid employment with Harrison. A Mr Wilhem gave evidence of a similar nature. Renfrey agreed that subsequently in early 1995 the defendant told her of that paid employment.
The defendant gave evidence. He maintained that during 1994 he spoke with Renfrey and advised her of a number of matters. He said he initially advised her of what appeared to be a strong probability of employment with Harrison and that he would probably be paid for some small amounts of work which would not, however, compensate him for his expenses. He maintained Renfrey indicated to him that he need not concern himself with such moneys received as they could go to off-setting his expenses in arranging employment with Harrison. She left him with the impression that it was more important for him to gain the full time employment than to be concerned with short term gain. This version was denied by Renfrey.
In essence, although the defendant agreed he did not nominate any figure of expenses when talking to Renfrey, he said he believed he was not required to do any more by way of disclosing to WorkCover the 1994 income from Harrison. As to the form he completed in March 1996 that is the subject of counts 8 and 9, in evidence he said he did not include reference to the 1994 income because the form was misleading and he thought he had answered the question completely. In addition, he asserted that the 1994 payments were expenses rather than income. That explanation can be contrasted with his answer in the July 1996 interview that he did not intentionally omit the 1994 amount and would have forgotten it. As counsel pointed out, however, an adverse inference should not be drawn too readily as the defendant appears to have been reconstructing his thought processes in those answers.
As to count 10 which charged that the defendant had dishonestly told the investigators that all moneys earned from Harrison were included in the 1995 group certificate, at trial neither counsel asked the defendant why he had made that incorrect statement.
Count 11 depends on acceptance of the evidence of Renfrey. During the interview with the WorkCover investigator the defendant said that in 1994 he had told Renfrey about the income from Harrison. This was said to be a false statement because he had not made such a statement to her. Proof of this count obviously depends on acceptance of Renfrey.
The Magistrate first addressed the question as to whether he was satisfied the defendant was aware at the relevant time that he was required to notify WorkCover of any additional moneys he may have earned through employment with Harrison. His Honour considered the evidence of Renfrey and the defendant and concluded :
“It is quite apparent from the evidence that both Di Renfrey and the defendant have given that during 1994 the defendant was well aware of his obligations to tell WorkCover of any income received by him. I make this finding notwithstanding on page 329 the defendant alleged that Di Renfrey did not explain his obligations to WorkCover at the time of taking up employment with Dunling”.
His Honour went on to say that he fully accepted the evidence of Renfrey on this point and rejected the evidence of the defendant where it differed from hers.
The next question considered by his Honour was whether the defendant knew that moneys received from Harrison amounted to income. An employee of Harrison gave evidence that the defendant worked for the firm between July 1994 and September 1995 and received payments for delivering summonses and surveillance work totalling $2 050. Those amounts were not disputed by the defendant. It was that witness who issued the 1994/1995 group certificate from Harrison for the defendant.
The Magistrate referred to the evidence of the defendant that he regarded moneys received from the delivery of summonses as expenses rather than income. His Honour found against the defendant in this regard:
“Having heard the defendant give his evidence and observe(d) him in the witness box and having re-read his evidence in total, I have absolutely no doubt that the defendant knew full well that the monies he received from the surveillance work and the delivery of summonses equated to an income”.
I agree with the Magistrate’s conclusion.
As to counts 1 to 7, his Honour considered the real crux of the matter was whether the defendant, with full knowledge of his obligations to WorkCover and knowing he was in receipt of some income (notwithstanding it may have been set off to an extent by certain expenses), informed WorkCover of that income. He referred to the evidence of the defendant that he had informed Renfrey. He then considered the evidence of Renfrey who was adamant she had not been advised by the defendant of that work or income. He noted the cross-examination of Renfrey had been conducted on the basis that she may have had the conversations from time to time, but had forgotten to note them.
His Honour formed a very favourable impression of Renfrey as a witness. He said :
“At the end of the day I was very impressed with Di Renfrey as a person who was honest and reliable and diligent in her work. Notwithstanding there was considerable cross-examination of Ms Renfrey on the basis that the notes pertaining to Mr Wilkinson were not always made contemporaneously I gained a very impressive opinion of Ms Renfrey and her recollection of events”.
His Honour then considered the evidence of Renfrey that the defendant had not informed her of small payments being made to him in comparison with the evidence of the defendant on that topic. Included in the evidence of the defendant was mention of a particular conversation about which his Honour made the following finding:
“At the end of the day I have come to the very firm conclusion that not only is it highly improbable that the witness Di Renfrey held such a conversation with the defendant, I find that there wasn’t one. Where Di Renfrey’s evidence differs from Mr Wilkinson’s I reject Mr Wilkinson’s evidence and accept the evidence of Di Renfrey.”

His Honour went on to make the following findings :

“Having seen the defendant give his evidence and having heard the substance of his evidence I have come to the very firm conclusion that his reasons for not informing the WorkCover Corporation of income received are highly implausible.
I believe that the defendant was engaged in an attempt to gain full time employment with R C Harrison and Associates. The nature of his employment was to be a scheme that he and other members of R C Harrison and Associates had devised for security within the video industry.
There were costs involved for the defendant, some of which he may have been reimbursed and some of which he would not, i.e. the purchase of equipment. I do not need nor propose to second guess what the defendant’s actual motives were at the time, but suffice to say that he realised that the monies he was earning, the subject of Counts 1 to 7, were income that should have been disclosed to the WorkCover Corporation, but which were not. I believe he knew what he was doing was deceitful and dishonest but justified it on the basis he was attempting to gain employment.
As to Counts 8 and 9, in my opinion, the defendant had already embarked upon a course of non-disclosure of the income he received in 1994 and omitted details of such income in statements provided to the WorkCover Corporation.
I find that he had did so without full knowledge of such omissions and I reject the reasons given in his evidence concerning his lack of understanding of the documents and/or his belief that such information supplied was all that was required.
As to Count 10, again I reject the defendant’s assertion that he had been honest with the WorkCover Corporation and his answer to the investigator was a deliberate untruth to cover his previous omissions.
As to Count 11, for reasons already given I find that he did not inform Ms Renfrey of the income he had derived from R C Harrison and Associates and accordingly, such statement made to the contrary to the investigator was therefore dishonest”.

The Magistrate then addressed the ingredients of a charge under s120 and, in particular, the issue of dishonesty. Having referred to the judgment of Lander J in Picken v The Department of Education and Children’s Services (unreported judgment delivered 15 May 1998), his Honour found that the acts of the defendant in failing to inform WorkCover of moneys received were dishonest and that those omissions were made with a dishonest intent. He also found that the statements which were the basis of the charges in counts 8 and 9 were dishonest and were made with a dishonest intent. Similarly, with respect to the statements that formed the basis of counts 10 and 11, he found that the statements made to the investigator were both dishonestly made and made with a dishonest intent. His Honour concluded that he was left in no doubt that the defendant was untruthful to WorkCover, untruthful to the investigator and untruthful in his evidence.
That judgment was delivered on 6 October 1998. When his Honour came to deliver his remarks with respect to penalty on 20 October 1998, he added to the findings in his judgment in the following manner:
“The fact of the matter is, and if I didn’t make it absolutely plain in my judgment, I make it quite clear to you now, the whole defence was based on the fact that you allege that you told one officer from WorkCover that you had received those monies and that she quite negligently and recklessly told you not to worry about it and go back to business and thereafter you kept it. Again, if I didn’t make it plain, I found that she was a particularly honest and reliable witness who is to be fully believed and is in no way, shape or form mistaken as to any conversation or lack thereof with you.
Indeed, your own story was so flawed that even without the prosecution witness I would not have accepted your own testimony. It was not just a case of weighing up one against the other, I fully accepted her evidence and fully disbelieved yours.”
It is against those findings that the defendant appeals, primarily on the basis that the Magistrate erred in finding Renfrey to be honest, reliable and diligent. In his comprehensive submissions, counsel for the defendant highlighted a number of features of the evidence of Renfrey which he said must have given rise to a reasonable doubt about the reliability of her evidence in its essential respects. He also listed a number of matters which he described as “contra indicators” which should have led the Magistrate to have doubts about the prosecution case that the defendant was acting dishonestly in any respect. In addition, counsel submitted that the prosecution had not proved the element of causation, namely, that the dishonest conduct particularised caused WorkCover to make the payments specified in each of counts 1-7. In essence he argued there was no basis upon which the Magistrate could find that if the defendant had declared the 1994 income, the appropriate adjustment of the amount to be paid to the defendant would have been made within the time specified in the individual counts. While there may be some doubt as to whether this last point was taken before the Magistrate, I have considered it on the merits.
Counsel submitted ultimately that this was one of those cases in which the Magistrate had accepted and acted on evidence that was glaringly improbable and, in accordance with the High Court decision in Devries & Another v Australian National Railways Commission & Another (1993) 177 CLR 472, this Court should interfere.
Responding in an equally thorough submission, counsel for the complainant concentrated upon what she described as the inherent implausibility and inconsistencies in the evidence of the defendant. Those various matters are set out in the complainant’s supplementary written outline of submissions and it is unnecessary to refer to them in any detail.

Recognising the difficulty of attacking the very strong findings of the Magistrate, counsel for the defendant identified one omission in the reasons of the Magistrate which he described as a critical omission in the reasoning of his Honour that led to the findings adverse to the defendant. Although his Honour referred to the evidence of Renfrey that in 1994 the defendant had not told her of his work with an income from Harrison, his Honour did not refer to her evidence that in 1995 the defendant had advised her of that paid employment. Counsel argued that this omission coloured his Honour’s perception of the defendant in a manner adverse to the defendant. If his Honour had addressed his mind to the 1995 acknowledgment, it must necessarily have led him to the view that the defendant was not behaving like a dishonest person with respect to the 1994 income and his version should have been accepted as a reasonable possibility.
In response, counsel for WorkCover suggested the whole issue was somewhat of a red herring. The defendant may have had a change of heart. Nobody had asked Renfrey what she did in response to that disclosure. Counsel argued that if his Honour did overlook that evidence it was of no significance in view of the strength of his findings. In particular, she referred to his remarks during the course of imposing sentence that the defendant’s story was so flawed that even without the prosecution witness he would not have accepted the defendant’s testimony.
While it is clearly important to bear in mind the possible cumulative effect of valid criticisms of Renfrey, the individual errors or inadequacies relied upon must also be examined carefully in order to determine their significance. Some of the criticisms demonstrated that Renfrey was clearly very busy and, from time to time, made mistakes in what she recorded. The matters identified by counsel do not, however, either individually or in their cumulative effect lead me to the view that the Magistrate should have concluded that her evidence in its essential respects could not safely be relied upon. In addition, there is evidence from witnesses Cowie and Wilhem that is capable, on one view, of supporting the inference that the defendant was deliberately misleading WorkCover as to the circumstances in which he was working with Harrison.
The various matters raised by counsel which he suggested tended against the conclusion that the defendant was acting dishonestly, were no doubt worthy of careful consideration by the Magistrate. In my opinion, however, they are not particularly persuasive, either individually or in their cumulative effect.
After considering the evidence, particularly that of Renfrey and the defendant, I was left with the clear impression that in the essential respects Renfrey was an honest and reliable witness. In particular, notwithstanding counsel’s attempts to suggest she may have succumbed to temptation to take a short cut, the evidence conveys the clear impression that she was highly unlikely to have responded to the defendant in the manner he suggested.
In contrast to the impression conveyed by reading the evidence of Renfrey considered in conjunction with other evidence, the impression from the defendant’s evidence was not favourable to him. I can readily understand why the Magistrate was not impressed with his evidence and explanations.
As to the omission by his Honour to refer to the conversation acknowledged by Renfrey to have occurred in 1995, he is unlikely to have overlooked such a matter on which the defendant relied and which had been highlighted in the written submissions presented to him. If he did overlook the evidence in question, in my view it is unlikely that his view of the credit and reliability of Renfrey and the defendant would have been affected if he had addressed his mind to that evidence.
In all the circumstances I can understand why his Honour arrived at a view that he preferred the evidence of Renfrey to that of the defendant. Nothing has emerged in the course of submissions to cause me to doubt that his Honour’s conclusion in that respect was correct.
Ground 1, which is based upon the proposition that the Magistrate erred in accepting the evidence of Renfrey and in rejecting the evidence of the defendant, fails.
Ground 2 was abandoned. That leaves the issue of causation. In view of the findings of the Magistrate, for these purposes it must be accepted that the defendant dishonestly omitted to inform WorkCover of the income he was receiving from his employment in 1994 with Harrison. It must be assumed that the omission was deliberate and dishonest. The defendant was well aware of his obligation to inform WorkCover of the income and the fact that the payment from WorkCover would be adjusted downwards to reflect the income he was receiving from Harrison.
Section 120(1)(a) provides:
“A person who -
obtains by dishonest means a payment or other benefit under this Act;
...
is guilty of an offence.”
The Act and evidence before the Magistrate clearly established the nature of the WorkCover scheme under which the defendant was receiving payments. There was ample evidence that the defendant misled WorkCover by not declaring the amounts received from Harrison as specified in counts 1-7. There is no suggestion, apart from the rejected version concerning Renfrey, that those responsible in WorkCover would have acted otherwise than in accordance with their duty under the Act. It is clear that if the defendant had declared the receipt of those amounts, the amounts paid by way of top-up would have been reduced in each of the weeks charged in counts 1-7.
The dishonest means were found in the failure of the defendant to inform WorkCover that he had received an amount by way of income from Harrison in each of the weeks charged. Those dishonest means resulted in him receiving the income maintenance benefits specified in the particulars of each of those charges. There is no evidence to support the assertion by counsel that had the defendant declared the income in each of those weeks it is a reasonable possibility that there would have been no effect on the amount of the income benefit paid because WorkCover was so busy there would inevitably have been a delay. In addition, the statement of offence and particulars refer to an approximate date in each count.
In my view there is no substance to the complaint that the Crown failed to prove the element of causation with respect to each of counts 1-7.
As to count 8, the Magistrate found that the defendant had already embarked upon a course of non-disclosure of the income received in 1994 and deliberately omitted details of that income in the form concerned. His Honour rejected the reasons given by the defendant for the omission which centred upon his lack of understanding of the documents question on the form and his belief that such information as he supplied was all that was required. In this context the defendant’s evidence that he regarded the 1994 moneys as expenses was also rejected by his Honour.
The evidence of Renfrey that she was told in 1995 by the defendant of the 1994 paid employment is relevant in considering count 8. The form in issue, Exhibit P2, was completed by the defendant on 13 March 1996, many months after he had told Renfrey of the paid employment which he omitted to include in the form that is the subject of the charge. Counsel argued that the failure of the Magistrate to advert to the evidence of Renfrey is a fatal flaw in his Honour’s approach to count 8.
After careful consideration, however, I have reached the clear view that I should not interfere with the finding. His Honour was justified in forming the view that the defendant had embarked upon a course of dishonesty with respect to these particular payments, notwithstanding the disclosure to Renfrey in 1995. As indicated earlier in these reasons, I doubt that his Honour overlooked the 1995 disclosure. If he did, in my view the failure was not significant as he would have rightly reached the same conclusion had he considered that evidence.
Similarly, in my view there is no basis for interfering with his Honour’s finding with respect to the dishonest statement that is the subject of count 10.
As to count 11, counsel conceded that if his Honour’s view of the reliability of Renfrey was upheld, there was no basis for challenging his finding with respect to count 11.
The defendant’s appeal against the findings that the charges were proven is, therefore, dismissed.
As to the complainant’s appeal against penalty, that appeal is limited to challenging the decision of the Magistrate not to impose a conviction. In essence, the complainant argued that frauds of this nature are to be treated in a manner similar to frauds against the Social Security system and the element of general deterrence must play a predominant role in the exercise of the sentencing discretion. In response, counsel for the defendant submitted that this is one of those rare cases where the Magistrate was justified in declining to record a conviction. In particular, he argued that the defendant’s conduct in trying to get himself back into the work-force was to the benefit of WorkCover. He has now succeeded in obtaining a well paid job which will be put in jeopardy if a conviction is recorded.
The respondent was convicted of conspiracy in 1984. That conviction arose out of an attempt to rig a greyhound race. His Honour accepted that the defendant had been dragged into a “stupid, ill-informed conspiracy...”. Notwithstanding the view taken by his Honour of that previous conviction, the fact that the defendant had previously been prepared to engage in dishonest conduct, albeit while under considerable financial pressure, cannot be totally ignored.
Having found that the defendant deliberately and dishonestly engaged in the fraudulent course of conduct, which included the false statements that are the subject of counts 8, 10 and 11 made in March and July 1996, well over a year after the deceptions charged in counts 1-7, the Magistrate said he accepted that the defendant thought what he was doing was probably in the best interests of everybody, including WorkCover. His Honour referred to the amounts as “not overly significant”. He said the defendant was using the funds to purchase goods for his betterment and, ultimately, for the benefit of WorkCover. The items purchased were pieces of equipment for use in finding alternative employment.
I was referred to a number of decisions of this Court which plainly demonstrate that the element of general deterrence is of critical importance. In cases of deliberate and systematic defrauding over a period of time and involving amounts not dissimilar to those in this matter, sentences of imprisonment have been considered justified and strong circumstances are required to justify suspension of the sentence. In particular, it is clear that only in rare circumstances will a sentencing court be justified in not recording a conviction. The cases to which I have been referred and from which I have derived guidance are:
WorkCover Corporation v Jelfs (unreported decision of Cox J delivered 8 May 1995)
Walsh v Tattersall (unreported judgment of the Full Court of South Australia delivered 2 November 1995)
Ferrone v Waite (unreported judgment of Perry J delivered 23 August 1996)
Montgomery v Millikan (unreported judgment of Olsson J delivered 5 February 1998)
Picken v Department of Education and Children’s Services (unreported judgment of Lander J delivered 15 May 1998).
In essence, the defendant had failed to declare income of about $2 238 earned over 2½-3 months in 1994. As a consequence he had been overpaid $1 826.72. It was conduct accurately described by the Magistrate as grossly dishonest. The deceit continued after the period of offending in 1994. In March and July 1996 the defendant engaged in further dishonest and deceitful conduct.
The defendant was unable to call in aid the benefit of a plea of guilty or contrition. To the extent that s16 of the Criminal Law (Sentencing) Act 1988 is applicable, the defendant failed to bring himself within the provisions directly relevant to the discretion not to impose a conviction.
In all the circumstances, in my view the failure to record a conviction rendered the sentence manifestly inadequate. While the imposition of a substantial fine is relevant in considering the aspect of general deterrence, the impact of that fine is diminished in the absence of a conviction. His Honour overlooked or failed to give sufficient weight to the critical aspect of general deterrence and gave too much weight to his finding that the defendant thought what he was doing was in the best interests of everybody. Notwithstanding the unfortunate consequence that a conviction may have with respect to the defendant’s employment, I am compelled to the view that his Honour erred and the sentence is manifestly inadequate by reason of the failure to record a conviction.
The complainant’s appeal will be allowed. The orders of the Magistrate are set aside. The defendant is convicted on each count with the exception of count 9 which was an alternative to count 8. In other respects the sentence is the same as that imposed by the Magistrate. I fix a single penalty. The defendant is fined the sum of $5 000 and directed to pay court fees of $94 together with prosecution costs of $5 628 and costs of investigation of $5 780. I allow twelve months to pay. There will be an order for reparation in the amount of $1 826.72.

[1999] SASC 119

26 March 1999