R v Gregor
[2000] VSCA 43
•22 March 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 13 of 2000
| THE QUEEN |
| v. |
| PETER GARY GREGOR |
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JUDGES: | CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 March 2000 | |
DATE OF JUDGMENT: | 22 March 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 43 | |
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Obtaining property by deception - Plea of guilty by mature-age offender of exemplary character - Offence not for personal gain - Weight to be accorded to general deterrence in unique circumstances - Immediate term of imprisonment manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr B. Kayser | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr A. Swanwick | Sharkeys Solicitors |
CHARLES, J.A.:
I will invite Coldrey, A.J.A. to give the first judgment in this matter.
COLDREY, A.J.A.:
The applicant Peter Gregor, who was born on 29 March 1950, seeks leave to appeal from a sentence imposed in the County Court on 28 January 2000. Having pleaded guilty to one count of obtaining property by deception contrary to s.81(1) of the Crimes Act 1958, the applicant was sentenced to be imprisoned for a period of 18 months and a non-parole period of nine months was fixed. A declaration was made that the applicant had served seven days' pre-sentence detention. Additionally it was ordered by the learned sentencing judge, indeed by consent, that the applicant pay, pursuant to s.86 of the Sentencing Act 1991, the sum of $26,671 to Suncorp Metway Limited. The maximum penalty prescribed for this offence is 10 years' imprisonment or a fine of 1,200 penalty units.
The applicant had no prior convictions.
The grounds of the notice of application for leave to appeal are in these terms:
"1.The sentence imposed by the learned Judge wasmanifestly excessive.
2.The learned Judge failed to take into account the position of the Prosecution, namely that it was not said that the appellant should undergo sentence to be immediately served.
3.The Learned Trial Judge failed to give adequate weight to the following considerations, namely:-
(i)the deception of the appellant being in the nature of obtaining a loan, and not a theft with the actual intention to permanently deprive the victim of the amount stolen;
(ii)repayments by the appellant to the victim;
(iii)the appellant's co-operation with the investigating police;
(iv)the appellant's plea of guilty;
(v)the offence being motivated by a failed business venture and the desire of the appellant to protect his family;
(vi)the previous good character of the appellant;
(vii)the effect of a sentence of imprisonment upon the family of the appellant.
4.The Learned Trial Judge gave undue weight to the principle of general deterrence.
5.In all the circumstances the sentence was manifestly disproportionate to the quantum of deception."
Counsel for the applicant, Mr Swanwick, did not seek to argue that the learned sentencing judge had not turned his mind to, and taken account of, the specific matters enumerated in these grounds; or that his sentencing remarks revealed a misapplication of sentencing principle. It was submitted, however, that the sentence was, in all the circumstances, manifestly excessive and was disproportionate to the gravity of the offence.
There was one qualification to this approach, namely, that the learned sentencing judge had given insufficient weight to the evidence of the applicant's remorse. I shall return to that matter shortly.
The factual background to this offence was as follows:
The applicant had been a self-employed finance broker since 1980. During the early 1990s this business was experiencing difficulties. The applicant and his wife purchased a Wendys Ice Cream franchise in Knox City at a cost of $280,000 to assist family finances. The value of the franchise deteriorated, as did the value of the applicant's house. At the same time the applicant's debts increased. The franchise and the family home were subsequently sold for $250,000 and $260,000 respectively to offset debts of approximately $717,000. This left a shortfall of around $200,000. One of the outstanding debts was for a loan secured over a property owned by the applicant's father, Roy Lonsdale Gregor. The applicant defaulted on that loan and received a notice of default. He became concerned that his father's property might be seized and sold. These circumstances gave rise to a deceptive scheme effected by the applicant on the Suncorp Metway Business Bank.
The applicant had, in the course of his finance broking business, previously applied to the Business Bank for loans to a client, Dalby Drive Pty Ltd (Dalby Drive). On this occasion the applicant submitted a false loan application on behalf of Dalby Drive to finance the purchase of a forklift vehicle for $35,000. The signatures of the directors of the client company were forged and a spare company seal in the possession of the applicant was affixed to the document. The application itself was accompanied by a false invoice for $30,299 for a forklift under the letterhead of Tiquyp, a company that had previously sold forklift vehicles but had, to the applicant's knowledge, ceased operation in 1991. Apparently he had retained an old company letterhead.
The loan was granted on 20 March 1998 and resulted in an actual payment of $30,299. This was initially paid into an account under the applicant's private control. The applicant also sought, and received, a $1,000 commission for arranging the loan.
Some $20,000 of the money obtained by the applicant was used in April 1998 to discharge the debt secured by his father's property. The balance was used to pay other debts. Also in April the applicant notified the bank of a change of address of Dalby Drive. This was to prevent any documentation relating to the loan being sent to the company.
Thereafter, the applicant commenced to repay the loan. In all, twelve payments, each of approximately $750, were made. Failure to make a payment in September 1998 eventually led to the exposure of this offence. Ultimately, following a petition in October 1998, the applicant was made bankrupt.
In a record of interview on 11 August 1999 the applicant frankly detailed his involvement in this offence. He expressed his intention at the time of the loan to repay the money. He also expressed remorse and the intention to repay the money in the future.
In the course of the plea made on his behalf emphasis was placed on his age (being almost 50), his exemplary record as a husband and father of three teenage children, his work record and his previous good character. His wife and two character witnesses attested to these matters and that this criminal activity was out of character. Attention was drawn to the financial stresses that had motivated the applicant's actions, and, in particular, his desire to protect his father. Additionally the applicant's endeavours to repay the money, his co-operation with police investigators, his expressions of remorse, his early plea of guilty and his consent to an order for compensation were all advanced as factors in mitigation.
It was submitted on the plea that, in all the circumstances, a suspended sentence was appropriate. The Crown conceded that such a sentencing option was open to the judge.
In the event the learned sentencing judge imposed the sentence to which I have referred. In doing so, his Honour expressed concern at a number of features of the offence; in particular what his Honour described as "the deliberate and calculating nature of the offence" and "the breach of professional duty" involved in the use by the applicant of his knowledge of the financial affairs of his existing client, Dalby Drive, and former client, Tiquyp. The learned sentencing judge concluded that the principle of general deterrence was of paramount importance, although he also regarded specific deterrence as being of significance in the sentence to be imposed.
Mr Swanwick singled out the treatment of remorse by the learned sentencing judge as an area of possible sentencing error. He drew attention to such matters as the early plea, the expression by the applicant of his determination to repay the amount of the defalcation, the consent to the restitution order, the record of interview redolent with expressions of remorse and the evidence of the applicant's wife about her husband's regret. It was submitted that the learned sentencing judge's reference to the record of interview providing "an indication of some remorse" did not give adequate weight to the evidence on this subject.
It is, however, to be noted that his Honour in the course of his sentencing remarks also said:
"Mr Sharkey submitted that I ought to take into account the following additional matters: namely, his plea of guilty; his full co-operation, particularly in his record of interview; his expression of remorse; his agreement to repay compensation to Suncorp and his expressed intention to repay the amount owing to Suncorp."
Later, his Honour commented:
"After giving anxious consideration to this crime, the plea made on behalf of the prisoner by Mr Sharkey, and being aware of the destructive impact that a term of imprisonment actually served will have upon his family and career as a finance consultant, and taking into account all the matters mentioned by Mr Sharkey to which I have already referred, I am nevertheless of the firm conviction that a term of imprisonment actually served is the only appropriate sentence for this deliberate and fraudulent crime."
In light of those comments, it cannot be said, in my view, that the learned sentencing judge did not advert to these mitigating factors raised on the applicant's behalf, and the question of remorse is really subsumed in the question of whether the sentence imposed is manifestly excessive.
The learned sentencing judge, following his assessment of the nature of the crime, introduced a description of the mechanics of its perpetration with the word "Further". Mr Swanwick submitted that this indicated that the learned sentencing judge was treating these activities as additional factors, effectively giving them double weight. This seems to me, if I might say so with respect, to be an exercise in semantics. In any event, his Honour was entitled to consider the modus operandi (for example the forging of signatures) in assessing the gravity of the offence.
Ultimately the issue is one of whether the sentence imposed was manifestly excessive. It has been said innumerable times that this ground is not capable of much argument.
The matters relied upon by Mr Swanwick may be summarised as follows:
(i)The motive was not greed, but need. In particular the need was not so much to protect the applicant from financial disaster, but to protect his father from losing his home.
(ii)There was no intention that the victim would ultimately suffer any loss. There was a misguided but genuine belief by the applicant that he would be able to repay the amount and that nobody would suffer. This is to be distinguished from more serious cases where the perpetrator knows and intends that there will be loss suffered by the victim.
(iii)The demonstrated remorse of the applicant.
(iv)The applicant's immediate admissions and plea of guilty at the earliest opportunity (to be assessed separately as a sentencing factor, independently of its effect as indicating remorse).
(v)The applicant's previous good character.
(vi)The applicant's desire to make restitution and his consent to such an order.
Mr Kayser on behalf of the Crown drew attention to the planning involved with the offence and the sophistication of its execution. These factors do cause some disquiet. However, they must be seen in the context of surrounding circumstances. Mr Kayser fairly pointed out that the learned sentencing judge did not consider in any depth the alternative of a wholly suspended sentence.
The approach of the court to the sentencing of mature-age first offenders necessarily varies according to the seriousness of the offence and the offender's antecedents. Some guidance is provided by such decisions as R. v. Smith[1] and R. v. Okutgen[2]. Whilst recognising the ultimate disposition will vary according to those factors, as well as the legitimate requirement of general deterrence, those cases exemplify the weight which ought to be given to an older first offender who has led an exemplary life.
[1](1982) 7 A.Crim.R. 437 at 442.
[2](1982) 8 A.Crim.R. 262 at 265 and 266.
It seems to me that in the present case the learned sentencing judge has failed to accord sufficient weight to the factors enunciated by Mr Swanwick, albeit he has referred to them in his reasons for sentence. It is also arguable that in the circumstances of this case the learned sentencing judge placed too much weight on the element of specific deterrence. In any event, I have concluded that this was not a case in which an actual custodial sentence was appropriate and, whether or not any specific error can be identified, the sentence imposed was manifestly excessive.
Accordingly I would allow the application for leave to appeal against sentence.
In relation to re-sentencing the applicant it is my view that the factors relating to the seriousness of the offence and the need for general deterrence may be adequately reflected by sentencing the applicant to a term of imprisonment of twelve months. Given the somewhat unique circumstances of this case (which I will not repeat), it is, I am satisfied, desirable, and I would propose, that the period of imprisonment not already served be suspended pursuant to s.27(1) of the Sentencing Act 1991. I would further propose that the period of suspension be for two years.
CHARLES, J.A.:
I agree.
CALLAWAY, J.A.:
I am reluctant to interfere with a sentencing disposition on which the learned judge bestowed obvious care. His Honour's main conclusion was that the offence warranted an immediate custodial sentence. I agree with that conclusion for the reasons his Honour gave, namely, the deliberate character of the deception, the degree of planning and the misuse of the applicant's professional position.
The only question, in my view, is whether the term of imprisonment of 18 months is manifestly excessive, bearing in mind that that must be considered on the footing, as has often been said, that the applicant may have to serve every day of the head sentence.
I do not accept that the learned judge double-counted the circumstances of aggravation, but I do agree that his Honour undervalued the applicant's blameless life to age 49, the motivation for the offence to protect his elderly father from losing his home and the remorse that is evinced, inter alia, by the applicant's willingness to make restitution, the restitution order in this case not being an empty gesture but being likely to be made good.
The sentencing discretion being re-opened, I agree in the sentence of 12 months' imprisonment that Coldrey, A.J.A. has proposed. Effectively to suspend 10 months of that sentence is somewhat lenient, but I do not dissent from it, taking into account the views of the other members of the Court and the position adopted by the Crown.
CHARLES, J.A.:
Mr Gregor, you have heard what has been said in the judgments of the Court. The Court is proposing to allow your appeal and is proposing to substitute a sentence of 12 months' imprisonment and will suspend for a period of two years, speaking from the date of the original sentence, the balance of your sentence, so that all but 61 days of that sentence of 12 months' imprisonment will be suspended.
I am required by s.27(4) of the Sentencing Act to explain to you what that order means. The consequence of a period of your sentence being suspended is to give you a last opportunity to avoid serving the balance of that period of imprisonment. If you should commit an offence, whether within or outside Victoria, punishable by a period of imprisonment within the period of suspension, you will be committing another offence and you will be liable to be brought back before a court and you may be made to serve the balance of that period of imprisonment. Do you understand that?
APPLICANT: I understand that, yes, sir.
CHARLES, J.A.:
And indeed it is likely that you will be made to serve the balance of that period of imprisonment.
The order of the Court is in the following form:
The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is allowed.
The sentence imposed is set aside and in lieu thereof a sentence of 12 months' imprisonment is imposed. Pursuant to s.27 of the Sentencing Act 1991 the Court suspends all but 61 days of such period of imprisonment for the period of two years commencing on 28 January 2000.
It is declared that the period of 61 days be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.
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