R v Burrows

[1995] QCA 67

IN THE COURT OF APPEAL	[1995] QCA 067
SUPREME COURT OF QUEENSLAND

C.A. No. 269 of 1994.

Brisbane

[R v. Burrows]

T H E Q U E E N

v.

BARRY WESLEY BURROWS

(Applicant)

____________________________________________________________________

Pincus J.A.
Davies J.A.
Derrington J.

____________________________________________________________________

Judgment delivered 15/03/1995

Judgment of the Court

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL ALLOWED. THE SENTENCE IMPOSED IN RESPECT OF FALSE
PRETENCES (COUNT 3) REDUCED TO 18 MONTHS. THE SENTENCES IN
RESPECT OF COUNTS 1 AND 2 CONFIRMED

____________________________________________________________________

CATCHWORDS:  CRIMINAL LAW - Sentence - uttering a false document - false pretences - previous convictions - admissibility of "other matters of credit" including alleged offences for which not convicted.

Ss. 9, 11, 189 Penalties & Sentences Act 1992.
De Simoni (1981) 147 C.L.R. 383.

Boney [1986] 1 Qd.R. 190.

Counsel:Mr P Alcorn for the applicant.
Mr D Meredith for the respondent.

Solicitors:Legal Aid Office for the applicant. Director of Prosecutions for the respondent.

Hearing date:21 October 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/03/1995

This is an application for leave to appeal against sentence. The applicant, a teacher, was convicted in the District Court on two counts of uttering a false document and one of false pretences. All three counts had to do with misrepresentations made by the applicant relating to his qualifications, during a period when he was employed at a TAFE college. The applicant was required to produce evidence to substantiate claims he had made with respect to his qualifications. One document he produced purported to be a letter from a college of advanced education to say that he had passed certain subjects there. In truth, the applicant had a letter from the college to say that he could not claim credit for subjects he had passed; he took that letter and altered it so that it conveyed instead what we have mentioned - i.e. that he had passed certain subjects.

The second count related to a forged certificate asserting that the applicant was the holder of a Diploma of Physical Education - third year - obtained in Tasmania. The applicant used these documents to satisfy his employer of his qualifications and he thereby obtained moneys consisting in salary which would not otherwise have been paid to him; hence the third count.

On each of the first two counts the applicant was sentenced to imprisonment for 1 year, and on the third count to imprisonment for 3 years, the sentences to be served concurrently.

The applicant was born in 1941. He committed a number of offences as a young man, which produced no sentences of imprisonment. There was in 1984 a conviction for carnal knowledge of a girl under the age of 16 years, for which a sentence of 12 months was imposed. In 1985 he was convicted of attempted false pretences and sentenced to 4 months imprisonment. In 1986 he was convicted of two, presumably minor, charges of stealing; for these offences he was fined.

The sentencing judge said:

"In other circumstances I might have taken the view that you were, to some extent, pressed into the commission of these offences by a problem going back 20 years in that you were never able to obtain formal recognition of the fact that you had apparently passed all of the academic requirements to obtain a Diploma of Physical Education in Tasmania."

The judge added that the applicant had not pleaded guilty, had shown no remorse, had told lies and had a bad character. His Honour also said that "from time to time you may have been or behaved as a useful, devoted teacher".

The prosecutor, when addressing his Honour on sentence, raised a number of allegations describing them as "other matters of credit". According to the prosecutor, at one school the applicant had been "given the option of either resigning immediately or facing police charges arising out of an allegation that he had been intimate with one of his female students". The prosecutor also said that the applicant was transferred from Cressy, a town in Tasmania because "to use the quaint language, of what was termed inappropriate behaviour with a female student". Next, counsel said that an indictment was presented in 1984 charging the applicant with one count of uttering a false document, but a nolle prosequi was entered. Counsel said that on another occasion he had been charged with having unlawful carnal knowledge of a girl under the age of 16, but that prosecution was not proceeded with. Counsel stated that once before the applicant had been charged with the same offence in similar circumstances, but there was no corroboration of the complainant child. Counsel also tendered part of a report by Mr D Sturgess Q.C., in which the name of the applicant was unfavourably mentioned. Lastly, counsel alleged that the applicant had been deceitful in that in filling out a job application for the position which he occupied at the time of the events constituting the offences of which he was convicted, he had failed to disclose certain convictions.

It seems possible that in describing the applicant's character as "deceitful, distasteful, revolting", as his Honour did, the judge was influenced by the matters just mentioned.

It is not the practice for the prosecution, when addressing the judge on sentence, to make allegations that the offender has committed other offences of which he has not been convicted; they cannot be considered: see De Simoni (1981) 147 C.L.R. 383 at 389, Boney [1986] 1 Qd.R. 190 at 205, 206, 207, 208. It is unnecessary to consider proper exceptions to that, for subject to a matter we shall now mention, it seems clear that here the allegations made by the prosecutor and explained above did not fall within any recognised exception to the general rule. It was suggested, however, that the Penalties and Sentences Act 1992 might contain provisions which permit a prosecutor to make assertions about other offences, not the subject of conviction, as being relevant to character: see s. 9(2)(f). The matters which may be taken into account in determining character are set out in s. 11 and they are:

(a)the number, seriousness, date, relevance and nature of any previous

convictions of the offender; and

(b)any significant contributions made to the community by the offender; and
(c)such other matters as the court considers are relevant.

Category (c) is, on the face of it, perfectly general, but it seems improbable that by including it the legislature intended to give the court unlimited discretion to take into account other offences in respect of which there has never been a conviction. One reason for thinking that the legislature had no such intention is the content of para. (a); there would hardly have been included a reference to "any previous convictions" if it had been intended that any previous offences, whether or not the subject of convictions, could be considered. Secondly, s. 189 of the same Act explicitly empowers the court to take into account offences of which the offender has not been convicted, but subject to the conditions there set out: the offender must be represented by counsel or a solicitor, must have pleaded guilty, and must request the use of the procedure set out in the section. It is unlikely that the general language in s. 11(c) of the Act was adopted so as to permit additional offences of which the accused has not been convicted to be taken into account, without the safeguards set out in s. 189.

It is of interest to note that none of the conditions set out in s. 189 were satisfied in the present case; in particular, the applicant was unrepresented, a situation which should have resulted in special care being taken.

In our opinion the reliance by the prosecutor on additional offences, not the subject of convictions, was a departure from proper practice and such as to vitiate the sentencing process. It is necessary for this Court either to remit the case or to re-sentence the applicant here; we favour the latter course.

In essence, what the applicant did was to misrepresent his qualifications with a view to satisfying his employer of his suitability. No doubt it is common enough for applicants for jobs, or incumbents, to exaggerate or misrepresent what they have done in the past; if detected, they would not ordinarily be subjected to criminal process. What marks the present case out is that the applicant faked documents to support his misrepresentation.

We have been referred to no other case in which the offence has consisted essentially of attempting to bolster a false curriculum vitae by altering or manufacturing credentials. The case is essentially one of first impression. The primary judge helpfully points out that the problem which the applicant sought to overcome by his dishonesty is one which went back 20 years, to his training in Tasmania; it appears that what was perceived to be a deficiency in that training dogged him throughout his professional life. The sentencing judge, having explained the basic nature of the offences remarked:

"If that was all that I knew about you, Mr Burrows, I might take a somewhat

kindly view of you in sentencing you for these offences."

His Honour then referred to the fact that the applicant had not pleaded guilty and to his

previous convictions; he added some animadversions on his general character:

"...you are almost an habitual liar. You are a cheat. You are a confidence

trickster. You are totally unsuitable to be a teacher of children, of young

people of any age...

Don't ask me for leniency now, Mr Burrows...

...it is your character, your deceitful, distasteful, revolting character which makes

you unsuitable to be a teacher."

In our opinion it had to be taken into account against the applicant that he had previous offences of dishonesty in his record; further, the conviction for unlawful carnal knowledge had to be considered. These went to show, not that he should receive additional punishment for what he had done in the past, but that he had been disinclined to amend his behaviour in consequence of his previous convictions and sentences.

Nevertheless, it is possible to exaggerate the seriousness of what was done. It is not as if the applicant had no training; his difficulty was that, many years before, he had not had training of the length and type which he chose to assert. It was not part of the Crown case that that deficiency, in truth, made him incapable, or less capable, of doing the work for which he had been engaged.

In our opinion the principal sentence imposed, one of 3 years, seems excessive and perhaps reflected to too great an extent the court's general disapproval of the applicant, rather than punishment for the particular offences before the court.

The application will be granted, the appeal allowed, and the sentence imposed in respect of the charge of false pretences (count 3) reduced to 18 months. The other sentences will be confirmed.