R v Beckett

[2017] NSWDC 155

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Beckett [2017] NSWDC 155
Hearing dates:	7 September 2016; 24 February 2017
Date of orders:	24 February 2017
Decision date:	24 February 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to terms of imprisonment consisting of 20 months and 18 months. Each sentence is suspended under s 12 of the Crimes (Sentencing Procedure) Act
Catchwords:	CRIMINAL LAW – Sentence – Form 1 - Use false document to influence exercise of public duty - Extra curial punishment – Interstate residence of offender reduces available sentencing options,
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	R v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	The Crown Barbara Maria Martha Beckett
Representation:	Counsel: Mr Hume – Crown Mr G Brady - Offender     Solicitors: Director of Public Prosecutions – The Crown Matthew Hammond Solicitors - Offender
File Number(s):	2011/399953

SENtENCE

1. HIS HONOUR: Although Shakespeare usually gets the credit, it was Sir Walter Scott who first wrote, “Oh, what a tangled web we weave when first we practise to deceive.”

2. What the idea the poet was attempting to convey was that often a person’s efforts to cover up an error or wrongdoing make things worse for them rather than better. We have an example of this in the case before me.

3. Ms Barbara Beckett did something wrong and in order to cover it up she has committed three offences. The Crown says they are of such seriousness that nothing less than fulltime custody is required.

4. Ms Beckett was a solicitor. She was approved by the Office of State Revenue as a person who could stamp transfers of real property using accountable stamps issued by the Office of State Revenue.

5. As a result of an outstanding payment concerning a transfer stamped by Ms Beckett, her entitlement to stamp transfers of real property was suspended. She was advised that an audit was to be undertaken of her practice. She was advised that she needed to produce her files in relation to the transfer.

6. This was a problem for Ms Beckett. When she stamped the transfer she could only do so properly if moneys to pay the stamp duty were available to her. If the moneys were not available to pay the stamp duty when she stamped the transfer, Ms Beckett would have been in breach of the system of electronic duties returns which she had been authorised to use.

7. When Ms Beckett did produce her file for the transfer it contained photocopies of two bank cheques, one from the Westpac Bank and the other from the ANZ Bank. They each bore the date 26 September 2009. She claimed to investigators that whilst the cheques were not in her physical possession at the relevant time the two cheques were available for the payment of the outstanding stamp duty and interest when she stamped the transfer on 11 June 2010.

8. Further investigation revealed that the dates on the photocopies of the two bank cheques were forged. Each was only issued on 27 September 2010, the day before the interview, and not as they purported on 26 September 2009. In fact, the offender had bought the two bank cheques in Hobart where she lived, photocopied them, and forged the dates on the copies of the two bank cheques. She redeposited the bank cheques soon afterwards.

9. Her intention in using the two false documents was for the Office of State Revenue to accept them as genuine, to explain why she has not remitted the stamp duty when it was due, and to get the Office of State Revenue’s agreement to defer collection of the stamp duty thereby influencing the officers of the Office of State Revenue in the exercise of their public duty to recover the outstanding stamp duty.

10. She also told a number of lies in the interview to support her false statement that the two forged bank cheques were available to her on 11 June 2010 to pay the stamp duty and interest on the transfer.

11. She has now pleaded guilty to two offences of using a false document to influence the exercise of a public duty. They are each offences under s 254(b)(iii) of the Crimes Act carrying a maximum penalty of 10 years imprisonment. When I sentence her for the first of those she ask that I take into an account an offence of making a false statement on oath, an offence under s 330 of the Crimes Act carrying five years imprisonment.

12. Ms Beckett was born in 1961. She was brought up in Hobart. Although her parents separated this was the only aspect of her early life which was other than positive. She studied completing a bachelor of laws and economics at the University of Tasmania and then an MBA at Macquarie University.

13. She married in 1989 and lived in Sydney until 2004. She and her husband had six children. The early years of her marriage were positive but problems developed.

14. The family moved back to Hobart in 2004 and then a short time later it appears that Ms Beckett’s husband started gambling. She was unaware of this at this time, running her solicitor’s practice and looking after the six children. In around March 2007 her husband’s gambling was of such an extent that the family savings became significantly impacted. She confronted her husband about these matters and separated.

15. The separation, the gambling and what followed put Ms Beckett into what Mr Brady described as a time of personal turmoil. There were divorce proceedings in 2010 at around the time these offences were committed.

16. There were proceedings in the Family Court (or perhaps the Magistrate’s Court) in Hobart which led to the issue of a family violence order in Ms Beckett’s favour against her former husband.

17. As a result of these offences Ms Beckett has not renewed her practising certificate. She was not struck off but accepts that she would have been had she attempted to renew her practising certificate. She has been working as a taxation agent but accepts that it is likely that she will have to give up that occupation having revealed to the appropriate authorities her pleas of guilty to these matters.

18. These proceedings have something of a history. Ms Beckett was committed for trial in March 2013 but is only appearing for sentence today, 24 February 2017, almost four years later.

19. The Crown originally charged Ms Beckett with offences involving an attempt to pervert the course of justice. She sought a permanent stay of such charges. That application was dismissed but she appealed that to the Court of Criminal Appeal. The Court of Criminal Appeal allowed the appeal in part holding - although I summarise inelegantly - the course of justice had not started at the time of the interview with the Office of State Revenue investigators.

20. Pursuant to a grant of special leave the Crown appealed to the High Court which set aside the orders made by the Court of Criminal Appeal and remitted the matter back to the Sydney District Court. That trial commenced in early September 2016, coincidentally before me.

21. A day or two into the trial the Crown presented a new indictment in which the current charges were alleged in place of the pervert the course of justice charges, and Ms Beckett pleaded guilty.

22. Although some of the delay can be attributed to the legal process, it remains the case that it is some considerable time between Ms Beckett’s offending and her being sentenced today.

23. I should say something about the discount that I have allowed for the pleas of guilty. The Crown says those pleas came late. Mr Brady says they came early. In one sense both of them are right. The pleas of guilty to the use false document to influence the exercise of public duty offences came as soon as the Crown presented an indictment with those charges on it, but those charges only came after the proceedings which I have outlined.

24. I am not going to specify a discount in percentage terms. The pleas of guilty are amongst other factors that I have taken into account in deciding to impose a different form of sentence from that I would otherwise have imposed. I will however say that to my mind those pleas came early. She had no opportunity before the Crown presented the new indictment to plead to such charges.

25. It is quite apparent that general deterrence is of prime importance in this case. Specific deterrence is of much less importance given the unlikelihood that Ms Beckett will ever be in a position to commit this type of offence in the future, and more fundamentally, given what I understand to be Ms Beckett’s underlying character, namely she has no prior convictions and is a woman of otherwise good character. I have got no doubt that Ms Beckett is most unlikely to offend in the future.

26. Let me return to general deterrence. Mr Brady attempted to persuade me that there was something about the principal of general deterrence that require that I look at the specific sort of offence that an offender has committed, and where such offences are rare then general deterrence is of less importance.

27. I do not agree with that proposition. It is easy to categorise these offences in a number of ways. As I began, it is an offence, where serious offending is committed to cover up wrongdoing. It is an offence involving an attempt to influence a public duty, an important public duty too. It is an offence involving forgery.

28. It does not really matter in which way this offence is categorised. What is important is that those who attempt to forge documents, those who attempt to cover up mistakes or wrongdoing by other offending, and those who attempt to wrongly influence an official performing a public duty must know that the Courts treat seriously such offending.

29. It is to be noted also that there was a significant breach of trust involved. Ms Beckett was placed in a position where she could perform important actions concerning State Revenue where she was trusted to do those things properly and where she has breached the trust that was placed upon her.

30. The Crown says that the offender’s motive in forging the copies of the cheques and presenting them when she did, was to, in part, avoid a prosecution for some unspecified offence. As Mr Brady points out I have to be careful not to breach the rule in R v De Simoni (1981) 147 CLR 383. I am not sentencing her for attempting to pervert the course of justice, that was the offence to which she pleaded not guilty when the trial commenced before me and she has not pleaded guilty to that offence. So I cannot sentence her on the basis that her motive was to avoid prosecution.

31. Certainly her motive was to avoid the consequences of an error or wrongdoing. She had stamped the document when the money for the stamp duty was not available to her.

32. Why she did this is difficult to determine. It all came about when a client of hers wished to transfer a home unit in Darling Point. A family trust was involved. It seems that Ms Beckett told her client that only nominal duty would be paid. Unfortunately she was wrong. She was told that stamp duty was payable, and rather than admit her mistake to her client she did what I have earlier described.

33. Of course, things would have been a lot easier for her had she done what she clearly should have done in the first place, admitted her mistake and dealt with its consequences with her client.

34. A lot has happened to Ms Beckett since her offending. As I have mentioned, she cannot be a solicitor any more. She may not be able to be a tax agent anymore. She has gone through numerous court cases. I have no hesitation in finding there is an element of extra-curial punishment present here.

35. Ms Beckett lives in Tasmania which reduces the number of sentencing options which I have. I can impose fulltime custody. I cannot impose an intensive corrections order. I cannot impose home detention. I can impose a suspended sentence of imprisonment. I can impose a community service order and of course I could impose a bond under s 9 or even s 10, but no one has suggested I would.

36. Most significantly I do not have a sentence in between fulltime custody and a suspended sentence available to me. It is not the law that where a sentencing option is not available I go down the list of severity, as it were, until I get to one which is available. I have to choose from those sentencing options which are available the most appropriate.

37. There is a stark contrast between the two forms of custodial sentence available to me. Fulltime custody in a gaol or a suspended sentence.

38. I can say quite frankly, were an ICO available I expect I would have imposed such a sentence on Ms Beckett, but it is not. I am satisfied that in each case custodial sentences are required, but I am not satisfied that they should be of fulltime imprisonment.

39. At one stage during Mr Brady’s submissions I raised with him the problem, as I saw it, that a suspended sentence on Ms Beckett would be insufficient punishment to reflect the objective gravity of her conduct, whereas a community service order would actually require her to do something apart from just be of good behaviour, something she will be any way.

40. Mr Brady pointed out to me a sentencing option which I found initially attractive. That I can impose a suspended sentence of imprisonment on count 1, which has the Form 1 matter attached to it, and a community service order on count 2. But that would be, being practical, at the expense of being legally correct.

41. It would be suggesting that the Form 1 matter is of such significance that it can convert a matter that requires a community service order to a matter which requires custodial sentence. In my view applying proper legal principle. I should impose sentences for both offences which are not as disparate as those which initially attracted me.

42. For those reasons I will impose the following sentences:

43. For count 1 on the indictment, taking into account the matter on the Form 1, Ms Beckett is sentenced to imprisonment for 20 months.

44. For count 2 on the indictment, she is sentenced to imprisonment for 18 months.

45. Both of those sentences are to be served by means of a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act on condition that she enters into a good behaviour bond for the term of those sentences.

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Amendments

30 June 2017 - Spelling correction cover sheet

Decision last updated: 30 June 2017