Pretyman v the Queen
[1987] TASSC 40
•25 June 1987
TASSC A34/1987
CITATION: Pretyman v The Queen [1987] TASSC 40; A34/1987
PARTIES: PRETYMAN
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 150/1986
DELIVERED ON: 25 June 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Neasey, Cox and Underwood JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A34/1987
Number of paragraphs: 28
Serial No A34/1987
File No CCA 150/1986
PRETYMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
COX J
UNDERWOOD J
25 June 1987
Orders of the Court:
Application for leave to appeal against sentence allowed.
Appeal dismissed.
Serial No A34/1987
File No CCA 150/1986
PRETYMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
25 June 1987
I agree that leave to appeal should be granted but the appeal dismissed, for the reasons given by Underwood J.
Serial No A34/1987
File No CCA 150/1986
PRETYMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
25 June 1987
I agree with the orders proposed by Underwood J. and with his reasons which I have had the advantage of reading.
Serial No A34/1987
File No CCA 150/1986
PRETYMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
25 June 1987
This is an application for leave to appeal against sentence.
The applicant and one Keith Murray Richards were jointly presented on an indictment by which they were both charged with 50 counts of obtaining goods by false pretences, one count of attempting to obtain goods by false pretences, 55 counts of forgery and 56 counts of uttering.
The applicant was convicted on all counts, but in each case of obtaining goods by false pretences and in the case of attempting to do so, he was convicted of stealing and attempted stealing in the alternative. Richards was acquitted on the first three counts, which alleged crimes of obtaining goods by false pretences, but convicted in like manner on the remaining 159 counts.
The applicant was sentenced to five years imprisonment and Richards to three years.
The principal argument on the application was that the disparity between the two sentences was unjustified. On behalf of the applicant it was also argued, albeit faintly, that in any event, the sentence of five years' imprisonment was manifestly excessive.
The applicant's convictions related to 33 criminal episodes all of which formed part of a common scheme and resulted in the theft of $185,296.40 and the attempted theft of $11,864.20 from his employer. The first crime was committed on the 19 May 1981 and the last, on the 3 September 1984.
The applicant was employed as a marine supervisor for the Karlander Shipping Line, latterly known as K Asia Pacific. This company owned a number of ships which operated out of Australian and South East Asian ports. The applicant, who was aged 38 years at the time sentence was passed, had worked in the shipping industry all his life. He held a Master Mariner's certificate and, prior to taking up employment with the Karlander Line on the 22 December 1980, had been in command of several merchant vessels.
As marine supervisor, the applicant was responsible for the proper loading and stowage of all cargo into the company's ships each time one of them was in port. Although answerable to the general manager, the applicant worked, without supervision, as a member of a management team which conducted the Karlander Line business. In the discharge of these duties, the applicant had the authority to spend substantial sums of his employer's money. It was left to the applicant to decide whether he would visit any particular port to personally supervise a loading operation or whether he would delegate the job to another. His job was one of great authority and responsibility.
One of the ports regularly visited by the Karlander Line ships was Risdon where zinc was loaded. Occasionally, general cargo would also be picked up or discharged at Hobart. At Risdon, the stevedoring was provided by the Electrolytic Zinc Company of Australasia Limited. However, Karlander and thus the applicant, was required to obtain sufficient labour and materials to make sure the cargoes of zinc were properly stowed and secured. Basically, this cargo was secured by constructing wooden frames around blocks of zinc bars and then lashing the frames and blocks down to prevent movement. Wood used for this purpose is called dunnage. When the cargo was loaded in containers, iron frames, known as pods, were welded to the decks of each ship so that the containers could be loaded onto them and secured for sea. The base of each pod was the same size as the base of each container. At the corners of the frame and at a right angle to the deck, vertical pieces of iron were welded. The container was lowered onto the pod so that the vertical pieces of iron slid into sockets in the container thus preventing sideways movement when at sea.
Karlander had entered into a contract with a company called Conaust (Tasmania) Pty Ltd whereby it was agreed that, through its firm Tasmanian Ships Service, Conaust would provide the shipwrights and the dunnage to secure cargoes of zinc loaded into Karlander ships at Risdon. The contract did not include any welding work and it is unclear whether it included the lashing down after the dunnage had been put in place.
The co–accused Richards, was a shipwright. He was employed by Conaust. When shipwrights were required for work on Karlander vessels and, presumably, on other ships as well, Conaust would contact Richards and he would assemble the necessary team of casual shipwrights and see that all the required work was carried out. In this position he was known as a leading hand and received from Conaust a $25 per week retainer and a tank full of petrol for each ship he attended. In addition of course, he was paid at ordinary rates, for all the work he did as a shipwright. One of the advantages of Richards' position was that he was always able to select himself for work on any vessel Conaust had to secure. Apparently, Richards was a good employee and Conaust came to rely upon him to see that the shipwrights properly secured the cargo. Richards completed the time sheets for the other shipwrights and Conaust paid out wages according to the information they contained. He also kept the records of the dunnage used. The manager of Conaust said, "I was content to leave the (EZ) operations in the hands of Mr Richards who was doing an excellent job".
It was within his framework that the two accused operated a scheme of criminal deceit which resulted in the theft of more than $185,000 from Karlander. It appeared that in some ports, dunnage was expensive and difficult to obtain. At a management meeting, the applicant mentioned that dunnage could be procured cheaper in Tasmania than in Victoria or New South Wales but purchases would have to be made in cash. The matter was left to him to act as he saw fit. Between the 8 May 1981 and the 2 October 1981, three ships of the Karlander Line were loaded at Risdon. On each occasion the applicant falsely represented to the Tasmanian agent for Karlander, C H Smith & Co Pty Ltd, that he required cash to purchase dunnage. On each occasion the shipping agent gave the applicant cash, subsequently reimbursed by Karlander, totalling in all, $2,688. In respect of these matters, being the first three counts on the indictment, the jury convicted the applicant but acquitted Richards.
Karlander incurred expenses each time one of its ships docked at Risdon. The practice was for the company's creditors to submit their accounts to the Tasmanian agent, C H Smith & Co. When these accounts were all to hand, the agent submitted a full account to Karlander and it was duly paid. Many of these accounts were routine in nature. If any of them were not, and related to any part of the loading operation, they would be referred to the applicant and paid if he authorised payment. It was this authority that resulted in the agent paying to the applicant the cash referred to in the first three counts, and subsequently receiving re–imbursement from Karlander.
Count 4 and following of the indictment reflect a system operated by the applicant and Richards acting in concert. In connection with the visits to Risdon by Karlander ships, the applicant and Richards, as principals within the meaning of the Criminal Code, s3, forged documents. These documents purported to represent accounts from Risbys, timber merchants; Power and Harrod, shipwrights; and P Powells Shipwrights Limited. The last company was entirely fictitious. The accounts supposedly from Risbys and Powe and Harrod purported to be for dunnage supplied to Karlander vessels and those from P Powells Shipwrights Limited purported to be for dunnage or welding work or both. None of the dunnage referred to in these accounts was in fact supplied and of course, none of the welding work claimed by P Powells Shipwrights was done by that company.
Abusing the authority entrusted to him, the applicant authorised the payment of these bogus accounts and instituted a special system for making payment. He arranged that, as soon as either of the accused presented one of these forged accounts to the agent, the agent would contact Karlander who would immediately remit the funds for the account by telegraphic transfer. The agent would then draw a cheque to meet the account and convert it to cash. The cash was handed either to the applicant or Richards, except on a few occasions when it was handed to another person whom the jury must have been satisfied was their agent.
Although there was evidence that the applicant and Richards shared the proceeds of their dishonest activities, there was no evidence of the proportionate disposition of the money between them.
Richards' part in the operation was to falsify the time sheets of the shipwrights employed by Conaust and the records of dunnage supplied, to minimise the chances of the bogus accounts being questioned. The evidence in respect of this matter was not clear but generally speaking, employees of Conaust did all the necessary welding and lashing, as well as the shipwright's work Conaust was obliged to do in the performance of its contract with Karlander. However, the records of this work were falsified by Richards to give the appearance that the only work done by Conaust was shipwright's work in accordance with the contract. Thus, it was unlikely any query would be made about the false claims for welding work. By the falsification of his employer's records and by the forgery and uttering of the false claims, Richards was fully involved in the dishonest scheme.
In his comments on passing sentence the learned trial judge said:
"Edward William Pretyman, by your own efforts, you worked yourself into a position of prominence in the shipping industry and you obtained a position within the Karlander organisation of power and of trust, and then for a period of over 2 years (sic) you consistently used that power and abused that trust for criminal ends. Throughout the community, many people, little people, rich people, poor people, have trust reposed in them. By and large they are worthy of that trust and they keep it. When a person in a position of prominence like yours abuses the trust, it is necessary for the Courts to impose a sentence of imprisonment of a deterrent nature, not only to deter others from doing what you did, but also to show to those who keep their trust, the gratitude of the community for their behaviour. If light sentences were to be imposed on persons who have done what you did, it would be a disincentive to the people great and small over the country who also have trust reposed in them and to keep that trust.
You committed yourself to a life of crime as thoroughly and utterly as any long term thief, and you went on with it year after year, and with some skill and cunning.
In my view, the appropriate sentence in your case is a sentence of five years imprisonment and that is the sentence which I impose.
Keith Murray Richards, you were not in a position of trust, vis a vis Karlander and therefore you are in a different position from Captain Pretyman. Nevertheless, you also committed yourself to a life of crime, and you committed yourself to deception, fraud, and forgery. You went in with your eyes open, and your family and Captain Pretyman's family is grievously affected by the sentence I have imposed on him, and which I will impose on you in a moment, is not the fault of the courts, that is the consequence of your own actions, and it is one of the consequences that you should have borne in mind before entering upon this criminal enterprise.
However, as I have said, there are factors in this case which distinguish you from Captain Pretyman. I am satisfied that he, rather than you, was the brains of the organisation and it does appear that you did not enter upon the scene quite as early as he did.
You are sentenced to imprisonment for three years."
Upon this application it was submitted:
1That there was no evidence or insufficient evidence to warrant the conclusion that the applicant was the "brains of the organisation" .
2The sentence of three years imposed upon Richards was an appropriate sentence and the applicant's sentence of five years cannot be sustained because:
(a) there was no disparity between the two offenders, or
(b)if there was a disparity it was not sufficiently great to justify a sentence two thirds as long again as that imposed on Richards.
The "disparity principle" in the case of joint offenders is well settled See Lowe v R (1984) 54 ALR 193; R v Kennedy (1979) 37 FLR 356 at 373; per Street CJ.
It has been stated by this court on a number of occasions. See for example, Prestage v The Queen [1979] Tas SR 270; Cowen v The Queen [1983] Tas SR 94; and Johnson v The Queen [1983] Tas SR 50. The following passage from the judgment of Neasey J at 272 – 273 in Prestage v The Queen (supra) sufficiently sets out the principle:
"1It is a general principle that 'where other things are equal persons concerned in the same crime should receive the same punishment, and that where other things are not equal a due discrimination should be made between them' ...
2An appellate court will interfere where it considers there is unjustified disparity between sentences imposed upon co–offenders, whether by the same or by different courts; and it may do so even if it considers the sentence under appeal was appropriate when considered alone …
3Even where disparity is regarded by the appellate court as being justified, the court may interfere on the ground that the extent of disparity was excessive ...
4There is a qualification upon the court's willingness to act, even where there is disparity which appears on its face to be unjustified or excessive; namely, where it considers the sentence imposed upon the co–offender was 'wholly inappropriate'."
It is plain that there is a disparity between the applicant and Richards. The success of the scheme depended upon the applicant's abuse of the high degree of trust placed in him by his employer, the victim of the crimes. Without the applicant, payment on forged documents would not have been authorised and payments in cash would not have been made. In relation to these crimes Richards was not in a position of trust. He was employed by Conaust and not by Karlander. It is true he acted with great impropriety in his dealings with his employer and in so doing abused the trust his employer had come to place in him. However, the crimes concerned thefts from Karlander and Richards was never in a position of trust in relation to that company. Whether or not Richards' actions have, or will, result in his employer suffering financial loss is not clear. If they have, or will, his actions may have amounted to the commission of crimes. If so, abuse of a position of trust by Richards would be an appropriate factor to take into account when sentence is imposed for such crimes.
The learned trial judge's finding that the applicant was the brains of the organisation was appropriate. In drawing this inference it was proper to take into account the fact that the jury convicted the applicant, but acquitted Richards, of the first three counts on the indictment which were the first three occasions of dishonesty. It was also proper to take into account the relative socio–economic positions of the two men. The applicant, a qualified and experienced master mariner was employed in a senior managerial position with duties which included the supervision and direction of Richards' work. Richards was a shipwright, whose supervisory duties were limited to a small gang of fellow workmen. Prior to entering into the criminal enterprise it is highly unlikely that Richards was aware of the nature and extent of the applicant's power to authorise cash payments of accounts; a factor crucial to the success of the scheme.
These matters clearly called for the imposition of disparate sentences and having regard to their importance in the commission of the crimes, justified a sentence of three years for Richards and five years for the applicant.
There is no substance in the argument that the applicant's sentence was manifestly excessive in any event. This is not a case to which any "tariff" can be applied. Commission of the crimes constituted a serious, calculated and sustained course of dishonest activity involving the loss of a very substantial amount of money by the applicant's employer. A sentence of five years was entirely appropriate in the circumstances.
In my opinion leave to appeal should be granted and the appeal dismissed.
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