R v Dunn - [2004] SASC 316

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNN
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
8 October 2004
PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - OTHER STATES OR TERRITORIES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant pleaded guilty to 18 offences of abuse of public office contrary to s 251 of the Criminal Law Consolidation Act ("the CLCA") and 61 offences of improperly accepting a benefit contrary to s 249(2) of the CLCA - appellant sentenced to imprisonment for 6 years with a non-parole period of 3 years - whether Judge gave insufficient weight to the appellant's poor health and age - whether sentence manifestly excessive - appeal dismissed.
Criminal Law Consolidation Act 1935 s 249(2) and s 251, referred to.
R v Nath (1994) 74 A Crim R 115, considered.

R v DUNN
[2004] SASC 316
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: The appellant pleaded guilty in the District Court to 79 offences of dishonesty, committed between June 1996 and July 2001.
He pleaded guilty to 18 offences of abuse of public office in that, being a public officer, he improperly exercised his powers with the intention of receiving a benefit for himself or another person. The essence of the offences lay in causing cheques, drawn on the account of the South Australian Housing Trust, to be paid into his account, with the intention of securing a benefit to himself. This was an offence under s 251 of the Criminal Law Consolidation Act 1935 (“the CLCA”).
He pleaded guilty to 61 offences of improperly accepting a benefit from another person. The essence of these offences was that being a public officer he improperly accepted benefits from one P, being cheques, as a reward for having allocated contracts with the Housing Trust to P. These offences were contrary to s 249(2) of the CLCA.
The maximum punishment for each of these offences is imprisonment for seven years.
The Judge sentenced Mr Dunn to imprisonment for six years, having reduced the sentence by three years on account of Mr Dunn’s plea of guilty and other mitigating circumstances. He fixed a non-parole period of three years.
Mr Dunn complains that the sentence is manifestly excessive. He argues that the Judge gave insufficient weight to his age and poor health in particular.
The case is a sad, indeed tragic one.
The appellant was in a senior position in the South Australian Housing Trust. He had been employed there since 1984. He was well respected and had won a number of awards for his work.
He had risen to a management position. In that position he had responsibility for authorising building work. He had authority to initiate the hiring of contractors, and to approve payment to them. His own background was as a building designer.
In 1994 he approached P, a former employee, who was qualified as a draftsman but apparently had limited experience. He arranged to allocate work to P. He arranged for a contract to be entered into between the Housing Trust and P.
Mr Dunn then embarked on a course of action that gave rise to the offences in question. In effect he authorised P to carry out work for the Housing Trust. He approved invoices submitted by P. The first group of 18 offences related to cheques payable to P, which the appellant authorised. These cheques were paid into the appellant’s bank account, and on most occasions the appellant took one half of the proceeds, paying the balance to P. The Judge calculated that Mr Dunn received almost $100,000.00 in this way.
As to the balance of the offences, the cheques payable to P were paid into P’s account. P then paid about half the amount of each cheque to Mr Dunn. In this way Mr Dunn received payments, according to the Judge, of about $177,000.00.
Overall, the payments to Mr Dunn amounted to at least $274,000.00 approximately.
On the facts before the District Court, the scheme was initiated by Mr Dunn.
There is no doubt that work was done by P for the Housing Trust. But, as the Judge found, the payments to P that Mr Dunn authorised on some occasions were for amounts in excess of what was reasonable or appropriate. Due to very poor record keeping by Mr Dunn, in a good many instances it was not possible to tell whether the work for which P was paid had actually been carried out.
While the charges focus on the benefit received by Mr Dunn, it is an irresistible inference from the facts that the Housing Trust suffered a substantial loss. The amount of that loss cannot be quantified.
The offending conduct ceased in about 2001, following an internal audit which resulted from irregularities in Mr Dunn’s work. Mr Dunn did not end the scheme of his own volition.
Mr Dunn made full admissions when spoken to. He assisted the police in their enquiries. That assistance was significant, and meant that the investigation into his conduct was less difficult than it otherwise would have been.
There were powerful mitigating circumstances, as the Judge recognised.
Mr Dunn had had a difficult childhood, having been brought up by a very stern and severe father. This left him as a person who was desperate for approval from others. A psychiatrist who had been treating Mr Dunn gave evidence that the offences were driven not so much by greed as by Mr Dunn’s need to prove his self-worth, and to prove that he was still a competent designer. However, that does not fully account for the offending, and in particular for the raising of charges in excess of what would be regarded as an appropriate rate of charging. As well, it is necessary to bear in mind that Mr Dunn received a very substantial financial benefit as a result of these offences.
As the Judge rightly said, these were offences of an insidious nature. They represent a form of corruption that can lead to loss of confidence in government agencies and processes for the allocation of contracts for public works. Mr Dunn was guilty of a serious and sustained breach of the trust that was placed in him.
When he was sentenced Mr Dunn was 66 years of age. He had no previous convictions. As I have already said, he was a good worker who had won awards. He was outwardly a man of good character, and was well regarded by those who knew him. These are significant matters in his favour, but it has to be borne in mind that those who regarded him well were unaware of this sustained and serious course of offending.
Mr Dunn is married, and has children and grandchildren. Since about 2000 he has been in poor health. He suffers from physical and psychiatric problems. His physical problems or illnesses are numerous, and were referred to in some detail by the Judge. As well, since August 2001 he has been receiving treatment from a psychiatrist. He has been diagnosed as suffering from significant depression, which began after Mr Dunn underwent significant surgery during 2000.
As the Judge recognised, the physical and psychiatric problems which Mr Dunn experiences mean that a sentence of imprisonment will bear more heavily on him than would otherwise be the case. His age is also a factor to take into account in that respect.
Mr Dunn has made substantial restitution, as a result of the Housing Trust withholding payments that otherwise would have been due to him upon his retirement from employment, due to ill health. The moneys withheld amount to almost $159,000.00. On the Judge’s calculation, the amount of the benefit unrecovered is about $115,000.00.
This is truly a tragic case. A man of otherwise excellent character, and with a good work record, has destroyed his own career and has brought disgrace upon himself and, no doubt, has caused great distress to his family and to those who love him and who value him. His offending is attributable in part to the adverse effects of his early childhood, but the element of financial gain cannot be ignored. The offending is serious in its nature, and was sustained.
I turn now to a consideration of the sentence.
It cannot be said that the Judge has overlooked any relevant matter. His sentencing remarks are thorough. They refer to the mitigating circumstances. It is clear that the Judge had regard to them.
The Judge did not refer to the fact that Mr Dunn is willing to give evidence against Mr P if required. It seems from the transcript that this point was not elaborated before the Judge. Mr Dunn was entitled to some credit for that. However, the uncovering of his offending necessarily exposed the role of Mr P, and the willingness to give evidence is not of great significance. Nevertheless, it is a factor.
The appeal can succeed only if, having regard to all the circumstances, the sentence imposed is manifestly excessive.
Having regard to sentences imposed and upheld by this Court for offences involving a sustained course of fraudulent conduct, it is difficult to criticise the sentence that the Judge imposed. There is no reason why the sentence should be less than sentences that have been imposed for a sustained course of fraudulent conduct.
It is true that the Housing Trust would have received some value for the payments it made to Mr P. The nub of the offences lies in the impropriety of the arrangement, involving a concealed benefit to Mr Dunn, rather than in the amount of money that was obtained from the Housing Trust as a result of it. However, having said that, one cannot ignore the fact that there was a significant financial benefit to Mr Dunn which was improperly obtained, nor can one ignore the fact that the Housing Trust must have sustained a substantial loss, as a result of overpayment for the work done. One must also allow for the fact that offending of this kind erodes public confidence in the processes by which contracts, involving public funds, are allocated. The breach of public duty is a serious matter, and is compounded by the aspect of personal gain: R v Nath (1994) 74 A Crim R 115 at 119-120.
Mr Apps, counsel for Mr Dunn, put everything that could be advanced in support of the appeal. He emphasised the mitigating circumstances to which I have referred.
However, the Judge had regard to all of these matters. He might not have had regard to Mr Dunn’s willingness to give evidence, but as I have already explained, I do not regard that as a significant factor.
Making every allowance in favour of Mr Dunn, I am satisfied that the sentence is not excessive. I regard it as a moderate one for a scheme that involved a systematic abuse of public office, over a period of almost five years, the scheme involving a substantial amount of money and a substantial personal benefit for Mr Dunn. A head sentence of imprisonment for six years was appropriate, after allowance for the plea of guilty and other mitigating circumstances. A non-parole period of three years is an unusually low non-parole period for such serious and sustained offending, and indicates that the Judge has made full allowance for Mr Dunn’s age, poor health and good prospects of rehabilitation.
The sentence was not excessive. The appeal must be dismissed.
BLEBY J: I agree.
GRAY J: I agree with the reasons of Doyle CJ. The appeal should be dismissed.