R v Bernard

[1999] NSWCCA 156

CITATION:	R v Bernard [1999] NSWCCA 156
FILE NUMBER(S):	CCA 60697/98
HEARING DATE(S):	11 June 1999
JUDGMENT DATE:	11 June 1999
PARTIES :	Regina v Roger Bernard
JUDGMENT OF:	Grove J at 1; Carruthers AJ at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0117
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ

COUNSEL:	R.A. Hulme (Crown) G.J. Graham (Applicant)
SOLICITORS:	C.K. Smith (Crown) Ramsland & Associates (Applicant)
CATCHWORDS:	Criminal law and procedure - Sentence - Medical practitioner passing valueless cheques seeking to keep commercial venture afloat - Periodic detention
CASES CITED:	R v Hallocoglu 1992 29 NSWLR 67 R v De Simoni 1981 147 CLR 383
DECISION:	Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60697/98

Grove J
Carruthers AJ

11 June 1999

REGINA v ROGER BERNARD

JUDGMENT

1    GROVE J : This is an application for leave to appeal against severity of sentence imposed by McGuire DCJ in the Newcastle District Court.

2    The applicant was sentenced on 23 October 1998 in respect of two counts of passing valueless cheques and his Honour was asked to take into account one other matter of a similar nature in passing sentence. The penalty imposed was on the first count a fixed term of 12 months imprisonment to be served by way of periodic detention and on the second count a fixed term of three months imprisonment to be served similarly by way of periodic detention.

3 As a matter of history, bail has not been sought pending this appeal and it is common ground that the applicant has served in full the sentence imposed upon the second count and, in respect of the first count he has reached the administrative stage two in his periodic detention, that is to say as observed by this Court in R v Hallocoglu 1992 29 NSWLR 67 he is presently discharging his obligation by way of a penalty which is in effect no more onerous than community service.

4    A submission was however advanced that the applicant would be benefited by a specific order for community service because he could do that without having his weekends interrupted. The reason for his desire that this not occur is that the applicant is a medical practitioner and is anxious to rehabilitate a practice which was damaged as a result of the events that led him before McGuire DCJ.

5    It is convenient to summarise the offences briefly. The applicant, although a medical practitioner as was his wife, according to the material before his Honour, elected to participate in some commercial ventures from which no doubt he hoped to make profit. Large amounts were involved. It suffices to observe that the attempts were unsuccessful in the sense that profits were not forthcoming and the applicant was eventually made bankrupt.

6    At a time when he was seeking to keep these ventures afloat he passed valueless cheques for the amounts of $186,000, $204,000 and $80,000 respectively. This was, as the Crown Prosecutor observed in written submissions, in part the culmination of an ever increasing spiral of cheques drawn and deposited between the Greater Newcastle Building Society and the Commonwealth Bank of Australia. The applicant was able to take advantage apparently of his status as a particularly valued customer of the bank and he was allowed to draw against cheques deposited even though they had not been cleared.

7    The activity of the applicant has almost ancient antecedents. It was known for many years as kite flying. This meant that persons took advantage of the clearance time between banking houses. It can be observed that in recent years with the advent of computerised records banks are capable of debiting accounts almost instantly, although it appears still to require some days for deposits to be cleared. As I have indicated, the applicant was able to engage in this conduct because of his status as a “valued” customer. That what he was doing was dishonest was self evident.

8    Complaint is made in this court that the learned sentencing judge gave too much weight to the question of general deterrence, it being pointed out that the maximum prescribed sentence for passing a valueless cheque is 12 months imprisonment. That was the total effective sentence passed in respect of two offences by the applicant, together with one other offence being taken into account on the schedule. I have already mentioned that the maximum sentence certainly was not imposed in any sense, even on a single count, because the collateral order enabling the sentence to be served by way of periodic detention meant that there was a strong element of lenience built into the penalty.

9    The applicant, so the evidence before his Honour indicated, suffered from a diagnosed medical condition generally described as a class of mental illness. He was unable to cope with the pressures of running his medical practice and the business venture upon which he was embarked. This material was before his Honour and it was taken into account.

10 It was complained that his Honour made reference to “fraud” whereas fraudulent behaviour was not an element of the charges against the applicant. This was said to be significant in accordance with the principles of the Queen v De Simoni 1981 147 CLR 383 because the applicant had, in fact, earlier been charged with three counts of obtaining a benefit by deception but the Crown did not proceed with those charges. His Honour in passing remarks did note that there had been apparently some agreement between the representatives of the prosecution and the applicant but he expressly said that that circumstance was no concern of his. There is no indication whatever that his Honour breached the principle in De Simoni by punishing the applicant for an offence more serious than that for which he stood for sentence.

11    As I have indicated, the amounts involved were significant indeed. The applicant's behaviour was in any sense dishonest. Indeed that is what I take his Honour to have been making reference when he used the word “fraud”. This application, bearing in mind the lenience already granted to the applicant, is in my view entirely without merit. I would refuse leave to appeal.

12    CARRUTHERS AJ: I agree.

13    GROVE J: The order of the Court therefore is leave to appeal is refused.

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