Pike v Lusted
[2017] TASSC 46
•9 August 2017
[2017] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Pike v Lusted [2017] TASSC 46
PARTIES: PIKE, Bryan Stephen
v
LUSTED, Gary
FILE NO: LCA 2229/2016
DELIVERED ON: 9 August 2017
DELIVERED AT: Hobart
HEARING DATE: 26 July 2017
JUDGMENT OF: Blow CJ
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Application for hearing de novo – Whether inadequate police investigation and resulting miscarriage of justice – Sentence and penalty – Dishonestly acquiring financial advantage, forgery and uttering – Misappropriation of funds of voluntary association.
Justices Act 1959 (Tas), s 111.
Penney v The Queen (1998) 72 ALJR 1316, referred to.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: K Baumeler
Respondent: S Thompson
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASSC 46
Number of paragraphs: 39
Serial No 46/2017
File No 2229/2016
BRYAN STEPHEN PIKE v GARY LUSTED
REASONS FOR JUDGMENT BLOW CJ
9 August 2017
From 2007 to 2011 the applicant, Bryan Pike, was the secretary/treasurer of the Tasmanian branch of an organisation called the Australasian Corrosion Association ("the ACA"). He had its cheque book. Between August 2007 and August 2011, he wrote 42 cheques that became the subject of a prosecution, most of them in favour of himself. He received either the proceeds or the benefit of nearly all of them. In June 2014 he was charged on 41 counts of dishonestly obtaining a financial advantage, one count of attempting to commit that crime, 40 counts of forgery, and 40 counts of uttering. He pleaded not guilty to the charges. There was a defended hearing in 2016 before the then Chief Magistrate, Mr M Brett. He acquitted the applicant in relation to two cheques, but found him guilty of 36 counts of dishonestly obtaining a financial advantage, four counts of attempting to commit that crime, 38 counts of forgery, and 38 counts of uttering. The four attempts involved cheques that were dishonoured as a result of the account being overdrawn. The applicant was sentenced to seven months' imprisonment, of which four months were suspended on condition that he not commit another offence punishable by imprisonment for a period of two years.
The applicant has moved for a review of the learned magistrate's orders pursuant to s 107 of the Justices Act 1959. He has also applied for a hearing de novo of the charges on which he was convicted, pursuant to s 111 of that Act. I heard both of those matters together. The motion to review was pursued only in relation to one ground, which asserted that the sentence was manifestly excessive.
The application for a hearing de novo was based on contentions that the police investigation was inadequate; that an adequate investigation would have revealed exculpatory documentary evidence; and that a miscarriage of justice occurred as a result of the matter proceeding to a hearing without that missing evidence.
The case in the court below
The evidence established that during the relevant period the financial affairs of the Tasmanian branch of the ACA were far from complicated. It had one bank account. There was one cheque book. There were three signatories, one of whom was the applicant. Two of the three signatories needed to sign each cheque. There were no credit cards. There were no on-line transactions. During the relevant 49 months, only 61 cheques were written. The prosecution concerned 42 of those 61 cheques.
There was a body of circumstantial evidence which tended to suggest that the applicant acted dishonestly in writing the cheques, and in misappropriating the proceedings of those that were honoured. That evidence included the following:
· The first 34 of the 42 cheques named the applicant as the payee. Thereafter, three were made out to cash; two were made out to a company controlled by the applicant named Ultimate Resources Pty Ltd; one was made out to "George Town Motel"; one, which was the subject of an acquittal, was made out to "Village Inn Hotel"; and the final one was made payable to both the applicant and his company.
· Two of the cheques were signed only by the applicant, without any second signature.
· The applicant forged a signature of a co-signatory on each of the other 40 cheques. He said that he had the permission of a co-signatory, Mr Wall, to sign his name. Mr Wall gave evidence to the contrary.
· At all material times the applicant and Mr Wall both lived in or near Launceston. It was reasonable to infer that it would not normally have been difficult for the applicant to have arranged for Mr Wall to countersign cheques.
· As secretary/treasurer of the Tasmanian branch, the applicant prepared agenda papers and minutes in respect of branch committee meetings and annual general meetings. Some but not all of those documents were tendered at the hearing. There was evidence that no others were available. In some of the tendered documents, the applicant provided details of the branch's bank balance. In each tendered document that mentions the bank balance, the applicant overstated it. Details of the stated and actual balances are as follows:
DATE STATED ACTUAL 21.2.08 $5,155.37 $1,064.43 18.6.08 $4,780.37 $515.33 11.8.09 $1,558.00 $71.65 17.9.09 $1,558.00 $722.43 21.1.10 $763.20 $344.43 5.8.10 $763.20 $231.55 21.10.10 $1,659.58 $1,210.84 23.6.11 $488.49 $240.33 25.8.11 $344.11 $323.40
· The minutes and agenda papers prepared by the applicant recorded the existence of a training fund, separate from the branch's bank account. They showed that that fund contained $9,200 as at 21 February 2008 and 18 June 2008; $9,343.40 as at 21 April 2010, 5 August 2010 and 21 October 2010; $10,728.40 as at 31 March 2011 and 23 June 2011; and $12,246.50 as at 25 August 2011. Other evidence suggested that there was no such fund.
· The applicant was interviewed by two police officers on 6 January 2014. He told them that it had been agreed between him and the branch that he was entitled to payment for his work as the branch secretary. He said he could not remember the agreed rate, but that it was either $4,000 or $6,000 per year. However there was no evidence of regular payments of such remuneration. A witness named Timothy Blair, who was the president of the Tasmanian branch for most of the period in question, gave evidence that he knew of no such arrangement. That evidence was unshaken. In evidence before the learned magistrate, the applicant did not assert that he had had an entitlement to remuneration, but gave evidence that he had "a mandate to a $2,000 a year maximum fee to cover personal expenses to travel to meetings and things, and set up meetings, and also attend meetings that were involved in developing the programs that the ACA needed to develop for training purposes".
· There was evidence that the financial records handed over by the applicant when he ceased to hold office did not include any invoices or receipts evidencing payments by him for which he was reimbursed, except in relation to the charges on which he was acquitted.
The applicant admitted that he had written and signed all 42 cheques. He admitted that he had forged the signature of a co-signatory on 40 of them, but contended that he had no intention to defraud the association, and that he was not acting dishonestly, because he believed that he was lawfully entitled to each of the payments in question.
Subject to one qualification, the applicant contended that each of the 42 cheques represented a payment to him by way of reimbursement of expenditure incurred by him. That alleged expenditure fell into three categories:
·Expenditure relating to meetings of the committee of the Tasmanian branch of the ACA.
·Travel, accommodation and related expenditure in relation to travel outside Tasmania on ACA business.
·Expenditure relating to the development of training courses.
The one qualification concerns evidence given by the applicant during his cross-examination as to a payment which, if what he said was true, did not strictly speaking amount to reimbursement of money paid out by him. His evidence as to that payment concerned a proposal that the ACA and the Australian Maritime College ("the AMC") would work together to develop training courses. The AMC at some stage became part of the University of Tasmania. The evidence established that at all material times the college had a subsidiary company named AMC Search Ltd which functioned as its "commercial arm". The applicant gave evidence that he had been employed in the past both by the AMC and by AMC Search Ltd; that he was owed money by the AMC; that he made an arrangement with the AMC that that money would be held by it in a "training and development account"; and that a cheque for $7,000 dated 8 November 2007 represented a payment to him of part of the amount that he had foregone. He said that the training fund referred to in the agenda papers and minutes was the fund held by the AMC.
The prosecution contended that none of the 42 cheques related to expenditure that the applicant had incurred, or for which he was entitled to reimbursement; that he had incurred no expenditure in relation to the development of training courses; and that he had done practically nothing by way of developing training courses. Evidence was adduced from the chief executive officer of AMC Search Ltd, Mr Cook, to the effect that training courses are organised by his company, not the AMC; that his company had no record of any course planned or presented in conjunction with the ACA; and that there would have been records of any such course or proposed course.
The learned magistrate disbelieved the applicant as to the AMC, the training fund, and his claimed right to reimbursements, except in relation to two cheques. He was satisfied beyond reasonable doubt that the applicant acted dishonestly in writing 40 of the cheques, in forging signatures on 38 of them, and in uttering those 38 cheques.
The application for a hearing de novo
Under s 111(1) of the Justices Act, an applicant who has filed a notice to review may apply for an order that the relevant complaint be heard de novo and determined in this Court. By virtue of s 111(4), such an order may not be made "unless the court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo". The making of such an order may be appropriate, for example, in a case where a defendant has been unsuccessfully represented by flagrantly incompetent counsel.
In this case the applicant was represented by experienced counsel before the learned magistrate, and now makes no complaint about his counsel's conduct of his defence. He contends, as I have said, that the police did not conduct an adequate investigation; that an adequate investigation would have resulted in documents containing exculpatory material becoming available to the police and available at the hearing of the charges; and that a miscarriage of justice has resulted from the inadequacy of the investigation and the unavailability of those documents.
As Callinan J observed in Penney v The Queen (1998) 72 ALJR 1316 at [18]:
"… there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial."
However it is clear from his Honour's judgment in that case that deficiencies in a police investigation, if serious enough, can give rise to a miscarriage of justice and warrant the quashing of a conviction.
In order to determine the application for a hearing de novo, it is necessary for me to consider the evidence before the learned magistrate as to the existence and availability of exculpatory documents, and evidence presented to me as to the existence or non-existence of such documents.
The evidence as to documentation in the court below
The documentation tendered before the learned magistrate comprised the following:
· Bank statements of the ACA Tasmanian branch.
· Copies of both sides of each of the 42 cheques.
· An incomplete collection of agenda papers and minutes for the Tasmanian branch of the ACA for the period 28 March 2007 to 25 August 2011.
· Copies of receipts produced from the records of the ACA's Tasmanian branch relating to some, but not all, of the 42 cheques. One of these was a receipt from a hotel. It related to charges that the learned magistrate dismissed. The others were all receipts written and signed by the applicant in relation to payments received by him. None was accompanied by any supporting documentation.
· The applicant's bank statements.
· The bank statements of Ultimate Resourcing Pty Ltd.
· A transcript of the interview with the applicant conducted by police officers on 6 January 2014.
· A list of cheques cashed at the George Town Motor Inn compiled by one of its proprietors, Mr Davis.
· A memorandum of understanding between AMC Search Ltd and Australasian Corrosion Association Inc.
The cheque butts from the relevant cheque book were not tendered before the learned magistrate. However they were available to the police. The interviewing officers discussed entries on the cheque butts with the applicant during his interview in January 2014.
The prosecutor contended that the ACA did not have any other financial records relating to the 42 cheques. Three office bearers of the Tasmanian branch of the ACA gave evidence. Grant Weatherburn gave evidence that he replaced the applicant as the branch secretary on 31 March 2011, and as the branch treasurer in about November 2011. He said that the applicant handed over a laptop computer and a thumb drive, on which there were a variety of notes, minutes and agendas, but no financial records or audit reports. He said there were gaps in the minutes, that he obtained some missing documents from others, and that some remained missing. He said that the applicant subsequently handed over deposit books, cheque books, and "a record book of those transactions". Mr Blair gave evidence that he was the president of the Tasmanian branch from around 2007 until around 2011. He gave evidence that there was a procedure for members to be reimbursed in relation to air fares and the like if they produced receipts and invoices. He said that such reimbursements would be recorded in minutes of meetings. It was not suggested that he had ever had possession of any financial records. The third office bearer, Mr Wall, gave evidence that he was a member of the Tasmanian branch committee until November 2008, and that he had no active involvement from then until April or May 2011, except that he remained a signatory to the bank account. He said he was present when the applicant handed over a box of materials to Mr Weatherburn, including the cheque book, the deposit book, a receipt book, "stuff like that", and "some other computer stuff". He denied that he took possession of a hard drive.
In his evidence-in-chief, the applicant said that he kept receipts while he was the secretary/treasurer and that they were lodged at each branch meeting. He said that he handed receipts and other items to his successor in chronological order in folders. He said they included hotel receipts, food receipts, and receipts that he had written out for training purposes. He said that they were in a box containing other things including a computer and computer equipment. He said he handed over a hard drive and a couple of thumb drives. He later said that he handed over the cheque butts, a petty cash book and a petty cash tin at the same time.
Two days later, under cross-examination, he said that the receipts that documented his reimbursed expenditure were bundled and sent at various times to ACA headquarters in Melbourne. He said that only the receipts for the last 12 to 15 months were handed over to Mr Weatherburn.
The memorandum of understanding relating to AMC Search Ltd shows that it was executed by that company's previous chief executive officer, Mr Foster, on 21 November 2007, and by a Queensland representative of the ACA on 8 March 2008. Mr Cook gave evidence to the effect that there was no record of any activity pursuant to that memorandum of understanding after it was signed. Mr Blair gave evidence that he did not ever see any accounting records relating to the training fund, and that he made no enquiries about it. Mr Weatherburn said he had an understanding that the branch had allocated $9,200 towards that training fund, and would expect a return on that money. Mr Wall gave evidence that he was unaware of any local training courses during the years 2008 to 2011. He said that there had been some discussions about getting together with the AMC and organising some joint training courses; that there was a meeting at the college where a fund, training, and a proposed memorandum of understanding were discussed, and that the transfer of a fund of about $7,000 to $10,000 was proposed.
Under cross-examination, the applicant said that he handed over a business plan and a course program to people who were connected with the planning of courses. He referred to meetings that he said "took place with the CEO of the AMC". He went on to say that he had had three lots of records stolen from his house, including "two of my main letters from AMC where that money was put into the AMC fund". He said that he did not report the burglary. He said that he had tried to get copies of documents from the AMC; that he was told to email his request; that he did so; and that he did not receive a response. At one point he suggested that a missing folder might have been left at a bus stop rather than taken during a burglary.
He said that documents relating to proposed apprenticeship training courses were on a hard drive that he handed over, but that was denied by Mr Weatherburn.
The learned magistrate disbelieved the applicant in relation to the AMC, the training fund, and the theft of documents from his home. He was satisfied beyond reasonable doubt that there were no receipts other than the ones made available at the hearing.
Evidence on the application for a hearing de novo
The applicant swore an affidavit in support of his application for a hearing de novo. It contains a number of assertions as to the existence of exculpatory documents that were not produced before the learned magistrate. The relevant parts of his affidavit read as follows:
"17The instructions I gave to my counsel prior to the hearing was that I had forwarded all copies of minutes of the meetings to Branch members and copies to Head Office as they took over our auditing responsibilities when our normal auditor retired, from memory, recorded in the 2008 Branch and National Council / Operations Committee minutes.
18I had also forwarded to the Head Office all bank Statements, cheque butts and receipts that I received in my time as Treasurer.
19It was and is my contention that the Head Office were provided with full records of minutes which included minutes authorising payment to me of $2000 per annum as advised by the current ACA CEO of that time.
20I [sic] was also my contention that a full account of the financial records including cheque butts and receipts were provided to the Head Office.
21…
22This evidence was not called at the hearing nor was any explanation provided for why it was not called. My requests for Branch Bank Account records to be made available for me to point out deposits made by me were never facilitated, nor my requests for copies of all central office council and operations committee minutes to be presented, all containing critical information in my defence.
23Proof of evidence from high profile third parties – community organisations and individuals, including State Government representatives, critical for my defence was available but to my knowledge, never acted upon.
24I had made my counsel aware of the existence of this evidence and the following facts;
a) Evidence of the costs allocated by the Branch ($7000) to developing a 'Blasting and Coatings' apprenticeship package, specialising in 'Marine structures / vehicles / ships – Assets Corrosion Protection' was recorded on the Branch's external hard drive in AQF Format.
b) A workplace evidencing system integrated within the package trialled by KEMPE Engineering and approved by Tasmanian TAFE, was also part of the package recorded on the hard drive.
c) Evidence of costs related to efforts to collaborate with the FIJIAN Government in providing facilities for delivering ACA 'Asset Corrosion' training modules to international AMC students, associated with Australia's 'Pacific Patrol Boat' Surveillance Program. (Contact; Mr Joe Kacilala, PO Box 178, Muai Walu Complex, Watu Bay, Suva Fiji.)
25Evidence of costs to establish the 'George Town Workforce Advisory Group' and a State Government sponsored apprentice ship [sic] registration portal to be managed by the advisory group. (Contacts – Mr Jereme Rose – email, [email protected] : Mrs Lisa Lucas email, [email protected] : Phillip Chandler, Headmaster, George Town Trade Training Centres )
26From my discussions with my council [sic], I believed that he was passing this information (Items 23, 24 & 25) onto prosecuting authorities.
27Evidence of supporting letters to myself from AMC relating to ACA sponsorship and training and development fund went missing from my home during the trial, this fact was refuted as lies by the prosecution, however – I was able to retrieve copies of same through AMC archive officer, Sister Elizabeth Vaag and Ports & Shipping past Head Of School records, who wishes to remain anonymous due to professional etiquette.
28Also, I reported to the court that my copy of charges relating to offences went missing from my home. I originally thought I had misplaced it … My request for another copy to defend myself was never honoured and therefore has never been reproduced for me to work with in my defence.
29I also advised my council [sic] that I can prove that a Branch computer virus infection (2009) caused loss of critical information recorded on minutes critical to my defence – Post Virus financial running costs and receipts (Including the receipts for the purchase of it and printer) were scanned and backed up on the Branch's hard drive, (as advised by computer repairer in case of reoccurrence). This information could have verified that reimbursable expenses paid by me 2009 onwards, were legitimate Branch expenses. … I can prove the existence of the hard drive as it was donated by a local Branch Member in 2009."
I make the following observations in relation to the applicant's affidavit:
· The minutes available at the hearing amounted to an incomplete collection. There was nothing in the available minutes about the applicant being entitled to $2,000 per annum, either by way of remuneration or by way of reimbursement of expenses.
· As to par 22 of the affidavit, the branch bank statements were available to the applicant's counsel at the hearing. There is no suggestion that his defence was prejudiced as a result of the applicant not having had copies before the hearing.
· Paragraph 23 does not relate to the contention now pursued, namely that the police investigation was inadequate.
· As to par 24(a) and (b) and par 29, both Mr Weatherburn and Mr Wall gave evidence that they did not receive a hard drive from the applicant.
· As to par 24(c), the applicant did not say what costs he incurred in relation to the Fijian government. He said that evidence of such costs existed, but did not say what that evidence was, where it was, or what he told his counsel about it.
· As to par 27, no retrieved copies of letters were made available or even identified on the hearing of the application for a hearing de novo.
· As to par 28, copies of the complaints containing all the charges were available to the applicant's counsel throughout the hearing. There is no suggestion that his defence was prejudiced as a result of him losing his copies of the complaints.
· As to par 29, there was no mention of a computer virus infection before the learned magistrate.
Counsel for the respondent relied on an affidavit affirmed by the ACA's executive officer, Mr Fawaz, who is based in Melbourne. He has been responsible for the management of the ACA's head office since August 2013. His evidence was not challenged. His affidavit includes the following:
"6Head office received some receipts and other records, albeit not full records, from Mr Pike. I have seen these records. They were all provided to Detective Constable Jason Bolton at Tasmania Police.
7On 7 January 2014, I provided Detective Constable Bolton with minutes from 12 of the 19 meetings held by the branch between 2007 and 2011. I had received those minutes from Grant Weatherburn, who was then the branch secretary and treasurer.
8I also provided Detective Constable Bolton with a spreadsheet detailing the cheques.
9On 9 January 2014, I provided Detective Constable Bolton with copies of handwritten receipts from a plain receipt book received from Mr Pike.
10In my capacity as EO of the ACA, I have caused a search of the ACA's records at head office to be performed. Minutes from the remaining 7 meetings between 2007 and 2011 cannot be located. As far as I am aware, head office never received those 7 minutes.
11In short, I provided Detective Constable Bolton with all minutes and financial records from 2007 and 2011 relating to the branch that were held at head office."
An inadequate investigation?
Having regard to the affidavit of Mr Fawaz and the evidence of the ACA office bearers in the court below, I am not satisfied that the police took inadequate steps to obtain financial records from the ACA, in Tasmania or in Melbourne, in relation to the relevant cheques. There is no reason to suspect that anyone has maliciously withheld or inadvertently misplaced exculpatory material.
In the light of the evidence of Mr Cook in the court below, it seems most unlikely that the AMC would have entered into a one-off arrangement with the applicant for it, rather than AMC Search Ltd, to develop a training course, and to hold funds for that purpose. Mr Cook's evidence was that his company, not the AMC, took responsibility for such courses. The memorandum of understanding was entered into by his company, not the AMC. It was only during his cross-examination that the applicant gave evidence to the effect that he authorised the AMC to hold money that would otherwise have been paid to him. That exculpatory evidence did not form part of his evidence-in-chief. That suggests that he may well have invented that evidence in an attempt to justify the entries in the agenda papers and minutes relating to the training fund. If it was true that the AMC was holding such a fund, it is unlikely that the balance in the fund would have increased from time to time, but the agenda papers and minutes suggested that it was growing.
The applicant's evidence as to a burglary was exculpatory evidence that was not given during his evidence-in-chief. It therefore seems likely that that evidence was invented during his cross-examination.
Having regard to those matters, I do not accept the applicant's evidence as to the existence of any exculpatory documents relating to the AMC, AMC Search Ltd, or the training fund.
Having regard to my conclusions as to the applicant's assertions in relation to missing financial records and missing AMC documentation, I am not satisfied that his uncorroborated evidence is reliable in the slightest in relation to any other alleged exculpatory documents. I am not satisfied that a more thorough police investigation would have brought to light any exculpatory material. The evidence establishes that police officers made appropriate enquiries of the office bearers of the ACA in Tasmania and Melbourne, as well as interviewing Mr Cook of AMC Search Ltd and one of the proprietors of the George Town Motel. I have no reason to think that their investigation was inadequate.
Conclusion
This is not a case in which the applicant claims to have fresh or new evidence that was unavailable at the time of his trial. Rather, he contends that a miscarriage of justice occurred because the police did not investigate the matter thoroughly enough to discover exculpatory documents. In the court below, the applicant was not required to prove his innocence, and was therefore not obliged to produce any documents. The prosecutor bore the burden of proving guilt beyond reasonable doubt. But on an application for a hearing de novo under s 111, the applicant bears the onus of establishing facts that warrant the making of the order sought. I regard the applicant as an unreliable witness. I am not satisfied of the existence of facts warranting the ordering of a hearing de novo.
As I have said, s 111(5) of the Justices Act requires me to consider whether the interests of justice require an order for a hearing de novo, having regard to all the circumstances of the case. The nature of that test has been considered in a number of previous cases: Webster v White (No 2) [1991] TASSC 89; Coppleman v Godfrey [2014] TASSC 60 at [48]-[53]. I accept that it would be in the interests of justice to order a hearing de novo if the police investigation was so inadequate that a miscarriage of justice had resulted. However, for the reasons stated above, I am not satisfied that a more thorough investigation might have resulted in a different outcome for the applicant. I am therefore not satisfied that there has been a miscarriage of justice, and not satisfied that it would be in the interests of justice to order a hearing de novo.
A manifestly excessive sentence?
As I have said, the learned magistrate sentenced the applicant to seven months' imprisonment, but suspended four months of that sentence. Counsel for the applicant accepted that a head sentence of seven months' imprisonment was not manifestly excessive, but contended that the sentence as a whole was manifestly excessive because three months of it were not suspended.
The applicant received either the proceeds or the benefit of 40 cheques, amounting to $40,264 in total. He attempted to receive the proceeds of three more cheques, amounting in total to $7,022.70. In sentencing him, the learned magistrate was required to take into account the following aggravating factors:
· The victim of his crimes was a voluntary association with limited financial resources.
· He was in a significant position of trust.
· The association was vulnerable because of a lack of fraud control measures.
· His offending commenced very shortly after he became the secretary/treasurer in 2007.
· His offending continued over a period of four years, from August 2007 to August 2011.
· There were 40 separate dishonest transactions.
· His offending involved the forging of a co-signatory's signature on 38 occasions, and the uttering of the 38 forged cheques.
· The applicant concealed his offending by providing the association's committee with false information as to its bank balance and financial resources from time to time.
When sentenced, the applicant was 63 years old. He had no prior convictions. He had been a person of good character, with a strong industrial record. He had made significant contributions to the community through voluntary work.
However a number of common mitigating factors were absent. The applicant did not plead guilty. None of the money was recovered. There was no reason to think that any significant amount might be recovered in the future. There was no remorse. The applicant did not have significant financial needs.
General deterrence is a very significant sentencing factor in cases involving thefts from employers and similar situations: Williams v Tasmania [2014] TASCCA 2, per Pearce J at [21]. Having regard to the scale and duration of the applicant's offending, and to the need to deter others from such conduct, I am not satisfied that the applicant's partly suspended sentence was manifestly excessive. It was not unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504; Dinsdale v The Queen [2000] HCA 54, 202 CLR 321.
Conclusion
For these reasons, I dismiss both the application for a hearing de novo and the motion to review. The applicant has been on bail since the day he was sentenced. His bail is revoked. He must now be taken into custody to commence serving his sentence.
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