R v Adams

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 126 of 1999

THE QUEEN

NEVILLE ERNEST ADAMS

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JUDGES:	WINNEKE, P., PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 1999
DATE OF JUDGMENT:	3 August 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 121

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Criminal law – Sentence – Obtaining financial advantage by deception – Whether extenuating circumstances calling for mercy – Whether judge in error in not suspending sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss M.E. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Pro Bono
and Ms. K.E. Judd

WINNEKE, P.:

The applicant, Neville Ernest Adams, is aged 55 years. On 26 May of this year he was presented before the County Court at Melbourne on one count of obtaining a financial advantage by deception and on a further count of attempting to obtain a financial advantage by deception. Each offence was committed in 1996 and there was, therefore, some substantial delay between the commission of these offences and the time when they were brought before the County Court for disposition. None the less, it is not contended, and for reasons that are made clear in the material in the transcript, that the delay was due to any fault of the Crown.
When the matter came before the court the applicant pleaded guilty to each offence. On 1 June of this year the judge sentenced the applicant to 12 months on the first count and six months on the second count. He ordered that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, thereby making a total effective sentence of 15 months. Pursuant to s.11(1) of the Sentencing Act, his Honour ordered the applicant to serve a minimum term of six months before becoming eligible for parole.
The applicant has a bad criminal history, but mainly for crimes of dishonesty and violence. In more recent years he has turned to drug related offending, but none of his crimes have been of the nature of those with which this Court is concerned. His criminal career has spanned effectively some 20 years, during which he has been before the court on some eleven occasions. He has been convicted of 24 offences and has been imprisoned on several occasions, sometimes for extended periods.
Paradoxically, upon his plea the applicant called in aid his criminal record to some extent to explain his offending on this occasion. He had been released from prison in or about November 1995, had apparently then stood his trial in New South Wales in 1996 for an old offence committed in 1983, of which he was acquitted, and then found himself unable - not only, I assume, because of his reputation but also because of his bad credit rating - to re-establish himself in the community and obtain work to better care for his wife and family. Because of his age and poor health, the latter of which had deteriorated whilst he had been in prison, the range of employment opportunities, not unnaturally, was limited to him. He was thus interested in establishing his own business in the meat industry, in which he had been largely involved throughout his working life.
If he was to establish his own business in such an industry it was necessary for him to equip himself with a car, because the business which he contemplated involved boning chickens and delivering to people in the trade. He thus needed credit to purchase a van in which deliveries could be made, and he created a number of false, indeed forged, documents, which he used to obtain from the Commonwealth Bank a loan of some $20,000. Thereafter, he attempted to obtain further credit, it would seem, from the St George Bank by means of similar deceptions. In the course of the latter deceptions he was apprehended and subsequently charged with the two counts to which he pleaded guilty. The $20,000 or thereabouts which he had obtained from the Commonwealth Bank has, as we are informed, been wholly lost to the bank.
It was a relevant fact, I think, for sentencing purposes that, at the time when these frauds were committed, the applicant was under court-ordered suspension deriving from the orders made by the court in August 1995, the operative period of suspension extending for some 18 months.
The applicant, who was represented on the plea, now seeks leave to appeal against the severity of the sentences imposed by the trial judge. The basis of the application is that the sentence which his Honour imposed, both individually and as a total effective sentence, is excessive. There was a ground originally raised going to the performance of his counsel on the plea, but we are informed now that that ground is not to be persisted with.
In essence, counsel contended before us that the applicant was caught in what can be described as a "Catch 22 situation", where he was forced to resort to subterfuge to overcome his poor credit rating in order to obtain the loan that he desperately needed as a step in providing support and assistance to his wife and his family. Furthermore, and as part of the total picture and explanation for the offences, the Court notes that there was indeed a real basis for contending that the applicant was in a poor state of health which, with his age, would probably have rendered him an awkward candidate for employment.
Essentially, as counsel concedes, the application is largely dependent upon a plea to this Court for mercy to be shown to a man who is in a state of poor health and who has been driven, so it is said, to commit these offences through the desperation to which I have referred, and who has now effectively lost, and was calculated to lose, whatever business he had as a consequence of being sent to prison. As I have said, there is no doubt that the applicant is a man who is in poor health, as the trial judge accepted, and that poor health is, at least in part, a legacy of a cerebral episode which he suffered in 1986. The consequences that have flowed from that are that he suffers from hypertension and arthritis, and, although he is of above average intellect, it seems that another consequence is that he is prone to emotional lability. He also suffers, it would seem, from chronic obstructive airway disease.
Although these matters were, and are, worthy of consideration in determining an appropriate method of punishment for the applicant, it cannot be suggested, I think, that his Honour was not aware of them; nor can it be suggested that his Honour did not take them into consideration.
It was suggested before us that his Honour was a little bit dismissive, or unfair, in dealing with the prospects of the business, but none the less his Honour was of the view that the evidence that had been tendered before him did not suggest that the business was as viable as had been suggested. However, his Honour did note that, if a sentence of imprisonment was to be immediately imposed, the consequence would probably be that the business would fail.
The applicant's counsel on the plea conceded that the proven offences were serious offences and were offences which called for terms of imprisonment. His Honour, however, was urged to suspend, either wholly or in part - I suspect wholly - the sentences which he was to impose. As counsel on the plea put it, he was effectively throwing the applicant "on to the mercy of the court" and asking the court to "temper justice with mercy" and to allow the applicant to continue to establish what was suggested to be (somewhat euphemistically, I suspect) a successful business, but, in whatever terms the business was to be described, to enable the applicant to carry out his intentions of supporting his wife and family.
Although his Honour felt that the seriousness of the offences warranted an immediate custodial sentence, it is to my mind quite clear from the sentences which he did impose that counsel's plea had not fallen on deaf ears. The individual sentences, the degree of cumulation ordered and what seems to me to be the disproportionately low minimum term fixed would all indicate that his Honour, who was a very experienced trial judge, was being merciful when account is taken of the brazenness of the offences, the maximum penalties which were open to be imposed, and the fact that they were committed whilst the applicant was under suspension. Once his Honour had concluded that the proper exercise of his discretion warranted an immediate sentence of imprisonment, it could not be, and has not been, contended that the sentences which he imposed were manifestly excessive. Effectively what has been contended on this appeal is that his Honour ought in all the circumstances to have suspended, either in whole or in part, the sentences which he did impose.
For myself I cannot accept that submission, despite the attractive arguments addressed to us on this appeal by Mr Tehan. I am quite unable to say that his Honour's discretion miscarried, either in determining not to suspend wholly or in part the sentences which he imposed or in fixing the sentences which he did.
I would, accordingly, refuse the application for leave to appeal against
sentence.

PHILLIPS, J.A.:

I agree. It is plain to me, too, that the sentences below were merciful, and that that was because his Honour made allowance for all that was put to him on the plea. No error has been shown in the exercise of his Honour's sentencing discretion and the application should be dismissed.

CHERNOV, J.A.:

I agree that the application should be dismissed, for the reasons given by the other members of the Court.

WINNEKE, P.:

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

[1999] VSCA 121

3 August 1999