Quirk v State of Tasmania
[2018] TASCCA 8
•14 June 2018
[2018] TASCCA 8
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Quirk v State of Tasmania [2018] TASCCA 8
PARTIES: QUIRK, Gavin Adrian
v
STATE OF TASMANIA
FILE NO: CCA 660/2018
DELIVERED ON: 14 June 2018
DELIVERED AT: Hobart
HEARING DATE/S: 7 June 2018
JUDGMENT OF: Estcourt J, Geason J, Marshall AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Stealing to the value of $40,000 – Inserting false information as data – Appeal upheld – Sentence of two years' imprisonment with a period of one year non-parole manifestly excessive – Resentenced to a partially suspended sentence with community service order.
Deakin v Tasmania [2016] TASCCA 19, referred to.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G Stevens
Respondent: D G Coates SC
Solicitors:
Appellant: W Olding
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 8
Number of paragraphs: 21
Serial No 8/2018
File No CCA 660/2018
GAVIN ADRIAN QUIRK v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
GEASON J
MARSHALL AJ
14 June 2018
Orders of the Court
Appeal allowed.
Sentence of two years' imprisonment with a non-parole period of one year imposed on 2 March 2018, set aside.
In lieu thereof the appellant sentenced to 18 months' imprisonment to operate from 2 March 2018, with the balance of the sentence from 7 June 2018 suspended on condition that he commit no offence punishable by imprisonment for a period of two years, and on the further condition that he undertake 210 hours of community service.
Serial No 8/2018
File No CCA 660/2018
GAVIN ADRIAN QUIRK v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
14 June 2018
The appeal
The appellant, Gavin Adrian Quirk, appealed against a sentence imposed upon him on 2 March 2018. On 7 June 2016 this Court upheld the appeal. These are my reasons for joining in the orders of the Court.
On 2 March 2018 Slicer AJ convicted the appellant of 32 counts of stealing and 26 counts of inserting false information as data, contrary to the Criminal Code, ss 234 and 273E respectively, and sentenced him to imprisonment for two years and ordered that the appellant not be eligible for parole until he had served one half of the term of imprisonment imposed.
The sole ground of appeal is that the sentence is manifestly excessive in all the circumstances.
The law
The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J. That a non-parole period can render a head sentence manifestly excessive is also clear from such cases as Johnstone v Tasmania [2011] TASCCA 9; Pickrell v Tasmania [2011] TASCCA 13; Richman v Tasmania [2011] TASCCA 18 and Groenewege v Tasmania [2013] TASCCA 7.
The offending
The learned sentencing judge made the following comments on passing sentence, which comments, in my view, set out sufficiently for the purposes of this appeal the factual background of the appellant's offending:
"The accused was employed as a business sales consultant at the Telstra Business Centre, owned by Vita Group Pty Ltd, an associate or subsidiary company of Telstra. His duties included general customer service and management of the telecommunications of small or medium customers with a business account, or who held an ABN status. He had access to mobile phones and stock.
For the purpose of sentence he is regarded as one who had breached his duty of trust.
Under financial pressure which was in part caused by a gambling addiction, the defendant began to take and sell iPhones through advertisements on the Internet on the Gumtree site. The method involved attributing the sale of the stolen items by recording the purchase to an existing customer account and neutralising billing notifications so that the customer would not be aware of the new charge. The accused would complete the necessary processes to hide thefts, and choose a person known to him so that if a check was made of the transaction the response by client would be more likely to return to him, which might enable him to further conceal or explain the discrepancy. The method was used in March and April 2017. In April the defendant repeated the deception by naming the account of a business at which his former partner had previously been employed. He anticipated that if any discrepancy was noticed he would be the first point of contact, and thus further able to cover up the deception. In May the defendant chose another business entity known to him and repeated the process.
On 1 May 2017, the regional sales manager discovered a discrepancy with a point of sale system, and an internal investigation commenced during which further appliances were found to be missing from stock.
During the enquiry the defendant claimed that the missing stock appliances had been allocated, and he had done the manual paperwork but had yet to complete and enter the data into the system. Later he admitted the theft of a further six missing phones.
He was dismissed and the matter was referred to Tasmania police.
When interviewed the defendant admitted all the thefts, but stated that he originally planned to take only one or two phones and to pay for them by instalments. He later made full admissions, stating that he had originally stolen 1-2 phones, intending to pay for them by instalments. He later made full admissions stating that he had originally stolen two – three appliances weekly extended to 1 – 2 appliances a day. He claimed that 80 – 90 percent of the money was spent on gambling.
He has signed over recent holiday pay amounting to $1,304. The total value of the stolen appliances was $40,359."
Personal circumstances
The learned sentencing judge made the following comments on passing sentence as to the appellant's personal circumstances:
"The defendant was born in 1985 and has no relevant prior convictions. He entered pleas of guilty in February 2018. The pleas will be given some weight but represent more of an acceptance of the inevitable and were not made at an early stage in the proceedings.
The defendant is presently living with a friend and has regained employment in Hobart, earning approximately $700 per week and paying board of $150 per week. He has closed his betting account, repaying his gambling debts at a rate of $250 per week. He claims to be receiving counselling through Gamblers Anonymous but this is questioned by the prosecution. It is irrelevant at this stage since he will serve a sentence of imprisonment."
The sentence
The learned sentencing judge made the following observations on passing sentence:
"The Court has received an assessment report from the Probation Service which states that the service does not regard Mr Quirk as being suitable for a probation order. It does regard him as being suitable to participate in community service orders. Given the amount involved, the Court does not regard an order of community service as the appropriate sanction.
Regard is had to the general principles and authorities referred stated by the Court of Criminal Appeal in Director of Public Prosecutions v Allen [2017] TASCCA 24, which dealt with a sentence concerning computer-related credit card fraud. In that case the amount involved exceeded that which occurred here. The issue of gambling was a significant matter addressed by that court, and this Court applies those statements of principle. Some allowance will be made for the disparate sums of money defrauded."
The appellant's submissions
Counsel for the appellant, Mr Stevens, pointed in his written submissions to the following matters:
· The appellant suffers from a gambling addiction. As a result, at the time of the offences he was in a very poor financial position and had been for some years.
· The appellant's previous de facto relationship of around three years had ended as a result of his gambling.
· The offending began in March 2017 when the appellant was under significant financial pressure, partly due to gambling debts resulting from his addiction. In the lead up to the commission of the offences, the appellant typically gambled away his wage within 24 hours of receiving it.
· The appellant was under significant personal stress at the time of offending. On 20 March 2017, the appellant and his partner lost their child in early pregnancy. Coupled with the devastating loss of their child was the need to pay for medical expenses for a surgical procedure to remove the deceased baby.
· The appellant had only intended to take and sell one mobile phone when he began offending, but with his gambling debts, depression and the loss of his child, the appellant explained that "one turned into 30 pretty quick".
· The appellant's addiction became increasing out of control and contributed to his continued offending. He tried to win more money to repay his debts, but as a result he continued to gamble, which meant that he continued to acquire debts, and therefore to offend.
· The fact that the offences were motivated by a gambling addiction is a relevant consideration, providing an explanation for the offences, and forming part of the whole of the appellant's background, which may be treated as constituting some degree of mitigation.
· Of the money made from the offences, the prosecution agreed that 80 to 90% of the money was immediately spent on gambling. There was no lavish spending. Stealing because of a gambling addiction should be regarded as less morally culpable than stealing because of greed or to fund criminal activity.
Counsel for the appellant also pointed out the following features of the appellant's post-offence conduct:
· When the appellant's offences were discovered, he immediately admitted his conduct.
· The appellant voluntarily attended a police interview and co-operated with police. During the course of the interview, he gave a full and frank account of his offending, and admitted all thefts. He described how he had originally stolen 1 to 2 phones, intending to pay for them by instalments, and that it escalated to 2 to 3 phones weekly, and then 1 to 2 phones per day.
· The appellant's genuine remorse. He authorised his employer to retain any pay and signed over holiday pay amounting to $1,304.74 to his employer. Prior to sentencing, the appellant contacted Telstra to attempt to enter into a payment plan. Telstra, however, preferred to wait until after sentencing.
· The day after the offences were discovered, the appellant closed all betting accounts. Of his own volition, he began a concentrated effort to rehabilitate himself.
· The appellant began attending Gamblers' Anonymous meetings in person. When he could not attend meetings, he engaged in telephone counselling with a Gamblers' Helpline. The appellant began attending Relationships Australia in June 2017 when he found it too difficult to attend Gamblers' Anonymous meetings.
· The fact that the appellant did not take rehabilitative steps prior to the detection of his offences is consistent with the severity of his addiction.
· In August 2017, the appellant regained employment in Hobart at Edge Living Furniture where he assembled and delivered furniture. The appellant had frankly advised his new employers of his offences.
· The appellant received $750 per week from his employment. After living expenses, he had a disposable income of approximately $250 per week. The appellant used the entirety of this to repay his gambling debts at a rate of $250 per week.
· Because of his employment obligations, the appellant had not attended Gamblers' Anonymous meetings or Relationships Australia for some months at the time of sentencing, but was continuing to engage in telephone counselling with the Gamblers' Helpline.
· In the comments on passing sentence. Slicer JA described the claim that the appellant is receiving counselling through Gamblers Anonymous as "irrelevant" on the basis that the appellant would receive a sentence of imprisonment. It is respectfully submitted that the appellant's efforts towards rehabilitation and addressing the cause of his offending prior to sentencing are relevant matters to be taken into account, and demonstrate his remorse.
· It is also submitted that the commencement of rehabilitation reduces the weight needed to be given to specific deterrence in the case of the appellant.
· The appellant had no relevant priors when the offending commenced. The appellant had always been a contributing member to society. He regularly donated blood to the Red Cross and raised money for charity, including by participating in the Point to Pinnacle and in the World's Greatest Shave.
· Upon the appellant's counsel's first contact with the prosecution, it was indicated that the appellant would plead guilty to all charges. The appellant then pleaded guilty to all charges at the earliest opportunity. A bare plea of guilty can be mitigating, and the plea is the product of the appellant's genuine remorse.
· The appellant also suffered personal consequences, causing the end of his relationship with his partner of three years.
· The accused had not been to prison before and his record was limited to traffic offences and a single drink driving offence.
Discussion
Counsel for the appellant also noted that the learned trial judge was referred to Director of Public Prosecutions v Allen [2017] TASCCA 24 and Williams v Tasmania [2014] TASCCA 2, and submitted that in both cases the defendant had misappropriated substantially greater amounts of money than the appellant and the offending had occurred over longer periods of time. I can deal with that submission at once. I do not find either case of assistance in the intuitive synthesis involved in the present case.
However, in Director of Public Prosecutions v Allen [15] the Court did say:
"Counsel for the respondent correctly identified the principles which limit the circumstances in which intervention by an appellate court in an appeal on this ground of manifest excess or manifest inadequacy is justified. They have been stated by this Court on many occasions. As was recently re-stated by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, the discretionary nature of the judgment required of a sentencing court means that there is no single sentence that is just in all the circumstances. Sentencing judges must take account of and balance many different and competing factors to arrive at a single result: Wong v The Queen [2001] HCA 64, 207 CLR 584 per Gaudron, Gummow and Hayne JJ at 611 [75]; Markarian v The Queen [2005] HCA 25, 228 CLR 357 at 373-375 [37] …".
One of the factors in this case was the appellant's asserted gambling addiction. The learned sentencing judge was referred by counsel for the respondent to the decision of Underwood J (as he then was) in Garnsey v Stamford [2002] TASSC 43. I would, with respect, prefer to commence with the observations of Wood J in Deakin v Tasmania [2016] TASCCA 19 at [39]-[40]. There, her Honour said:
"39 A gambling addiction may, like any other mental condition, reduce the offender's moral culpability and the need for general and specific deterrence: R v Grossi (2008) 23 VR 500 at [55]. It will depend on the nature and severity of the symptoms, its effect on the mental capacity of the offender and the nature and seriousness of the offences committed: R v Verdins (2007) 16 VR 269 at [25]; Grossi at [55]; Johnstone v Tasmania [2011] TASCCA 9 at [13]. The reference by the learned sentencing judge to a 'pathological gambling' addiction is to a form of impulse control disorder. The disorder may enliven these principles because of the severity of the symptoms. It should be noted though that the label or classification of the condition is not significant. Rather, what is significant is how the particular mental condition affected the mental functioning of an offender in the circumstances: Verdins at [13].
40 There was no assertion in the plea in mitigation before the sentencing judge that the gambling habit had impaired the appellant's mental functioning or contributed to the offending conduct. The sentencing judge was not provided with a report from a psychiatrist or a psychologist that established a nexus between the appellant's gambling habit and his offending, or that suggested that his habit had any effect upon his mental functioning. Even if such a nexus had been established and his mental functioning had been affected, there would have been a need to assess the nature and severity of the symptoms and whether his impaired mental functioning had any of the effects stated in Verdins at [26]. Impaired mental functioning may reduce an offender's moral culpability if it had an effect such as impairing an ability to exercise appropriate judgment, or to think clearly, or to appreciate the wrongfulness of the conduct. In any case, the nature and seriousness of the offence may suggest that moral culpability is still significant, and general deterrence must remain an important objective."
In my view those remarks of Wood J resonate in the present case. Counsel for the appellant informed the learned sentencing judge as follows:
"Mr Quirk frankly admitted to counsel that he's been a gambler most of his life, predominantly focussing on bets in horse racing and sports. He says that he did this through on-line accounts that he set up and this has led to him being in a very poor financial position for some years now, including during both significant relationships which culminated in the end of both of those relationships.
In the longer term lead up to the commission of the offences, Mr Quirk describes getting paid by his employer and gambling it away within 24 hours. He said that he hid it from his partner and everybody else. He sought no help in the past for his gambling addiction prior to these offences, preferring to convince himself he didn't have a problem and can stop when he chose to."
In my view, the appellant's asserted addiction to gambling was not entitled to any significant weight as a circumstance of mitigation. The appellant, if addicted, had been an addicted gambler for many years before the commission of these offences, and during those earlier periods his addiction did not lead him to the commission of crime. Moreover he took no step to either seek help to overcome any addiction or to cease his offending prior to the detection of his crimes. I add however, that unlike the learned sentencing judge I do not regard the appellant's post-offending commencement of attendances at meetings of Gamblers' Anonymous as irrelevant. Steps taken towards rehabilitation are always relevant whether or not a prison sentence is inevitable.
The appellant's plea of guilty and his prior good character were mitigatory. The learned sentencing judge appears to have regarded the plea of guilty as not being an early one, about which there might be some argument. Whilst it may have been an acceptance of the inevitable as his Honour noted, the appellant's co-operation with police and his plea of guilty evidence his expressed remorse and were also mitigatory.
As to the appellant's prior good character I note what Pearce J said in his comments on passing sentence in Williams, 25 September 2015, namely:
"She has a poor driving record. However she has no prior convictions for dishonesty. That is almost invariably the case for crimes like this because, otherwise, she is unlikely to have been in a position of trust. Employers who trust employees with the control of money are entitled to expect honesty from them. Such dishonesty is sometimes difficult to detect. The courts have a duty to impose sentences which attempt to make it clear that those who may be tempted to steal money in breach of trust should expect harsh punishment. Only then will sentences operate as an effective deterrent."
Notwithstanding the foregoing matters, I am nonetheless persuaded that the appellant has established that, by reason of its severity, the sentence imposed on him is unreasonable or plainly unjust. In my view appellate intervention is justified on the ground of manifest excess. I note that the respondent has submitted to the Court that the sentence is harsh and that it should be scrutinised carefully. I agree. Counsel for the respondent, Ms Bill, submitted that (fraught as such comparisons often are), an analysis of recent sentencing data would suggest that the appellant received a significantly heavier sentence than anybody else in the last five years sentenced in this Court for a similar offence involving a similar amount.
Moreover, I do not accept that the work of the judges of this Court in recent times reflects the learned sentencing judge's conclusion that, given the amount involved, a community service order could not be regarded as an appropriate sanction. Coupled with a wholly or partially suspended sentence of imprisonment, community service would, in my view, have adequately accommodated the serious nature of the criminal conduct and the need for general deterrence, as well as personal deterrence and denunciation. It would have been a just and appropriate sentence. As Wood J pointed out in Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11 at [40]-[41]:
"[40] As noted by Blow CJ in Director of Public Prosecutions (Acting) v Hawkins [2015] TASCCA 8 at [13] ... a criminal record that includes a suspended sentence can disadvantage an offender in a number of ways, particularly in relation to obtaining employment. A suspended sentence involves a denunciation of an offender's conduct, and should provide an offender with a strong incentive not to re-offend. It is always highly likely that a suspended sentence will be fully activated if re-offending occurs. In terms of denunciation, I add that a suspended sentence of imprisonment publicly condemns and stigmatises the criminal conduct, marking it as sufficiently serious as to warrant imprisonment, and in some cases, lengthy imprisonment. Unfortunately, the impact of a suspended sentence on an individual offender is not well understood in the community and this diminishes the effectiveness of this sentencing option in terms of general deterrence: Director of Public Prosecutions v Broadby, Cockshut and Woolley (2010) 20 Tas R 399 at [9], and Hawkins at [13]. This may mean that in cases where general deterrence is an important consideration, a more punitive sentencing order is required.
[41] There was, in this particular case, a clear need to adequately reflect the nature of the criminal conduct, and denunciation and general deterrence were prominent sentencing aims. In my view, the combined sentence of a community service order and a probation order was clearly inadequate to achieve these sentencing goals. In view of the respondent's relatively young age, and his lack of prior convictions, and that there were prospects for his rehabilitation given compliance with recommendations for treatment and regarding his substance dependence, it was open to the learned sentencing judge not to impose an immediate term of imprisonment. The sentences of a community service order and a suspended term of imprisonment are not mutually exclusive, and the Sentencing Act 1997 permits combined sentencing orders: s 8(3)...". [Emphasis added.]
Disposition
For the foregoing reasons I joined in the orders of the Court allowing the appeal and setting aside the sentencing order and substituting therefor a sentence of 18 months' imprisonment to operate from 2 March 2018 with the balance from 7 June 2018 suspended on condition that the appellant commit no offence punishable by imprisonment for a period of two years, and on the further condition that he undertake 210 hours of community service.
File No CCA 660/2018
GAVIN ADRIAN QUIRK v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
14 June 2018
For the reasons given by Estcourt J, I joined in the making of the orders upholding the appeal and re-sentencing the appellant.
File No CCA 660/2018
GAVIN ADRIAN QUIRK v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
14 June 2018
For the reasons given by Estcourt J, I joined in the making of the orders upholding the appeal and re-sentencing the appellant.
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