R v Perkins
[2000] VSCA 132
•18 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.210 of 1999
| THE QUEEN |
| v. |
| MARTIN JAMES PERKINS |
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JUDGES: | PHILLIPS, CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 July 2000 | |
DATE OF JUDGMENT: | 18 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 132 | |
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Criminal law - Sentencing - Defrauding the Commonwealth - Theft and obtaining financial advantage contrary to State law - Error in fixing State sentences to start on date of arrest - Failure to give due weight to factors of mitigation conceded - Appellant re-sentenced.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr W.E. Stuart | P.C. Wood, Solicitor for Public Prosecutions; Solicitor to Cth DPP |
| For the Appellant | Ms J.A. Dixon | Victoria Legal Aid |
PHILLIPS, J.A.:
The appellant, who is 33 years old, pleaded guilty in the County Court to three counts on two presentments. The first, a joint Commonwealth-State indictment/presentment, contained two counts, one of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (Commonwealth) and one count of theft contrary to s.74(1) of the Crimes Act 1958 (Victoria). The second, a State presentment, contained one count of obtaining a financial advantage by deception contrary to s.82 of the Victorian Act. The maximum penalty for defrauding the Commonwealth contrary to s.29D is 10 years' imprisonment or a fine of $110,000 or both. The maximum penalty for each of the two offences under State law is 10 years' imprisonment.
After a plea in mitigation by counsel on his behalf, the appellant was sentenced on 13 September 1999 to be imprisoned for a term of three-and-a-half years on the charge of defrauding the Commonwealth, and it was ordered that he be released after serving two years of that term on a recognisance to be of good behaviour for 18 months. On the charge of theft contrary to s.74 the appellant was sentenced (according to his Honour's sentencing remarks) to a term of six months' imprisonment and on the charge of obtaining a financial advantage by deception he was sentenced to a term of three months' imprisonment. These last two sentences were directed to be served concurrently with each other, but in substance, by virtue of the directions given by the sentencing judge, they were to form the base upon which the sentence imposed on the first count of defrauding the Commonwealth was to be served cumulatively.
It was no doubt in an effort to accommodate his sentencing intention in this regard that the judge declared that the State sentences should commence from the date of the prisoner's arrest, namely 29 March 1999, at the same time declaring that the sentence for the Commonwealth offence commence on the date of sentencing, 13 September. In addition, the judge declared that the prisoner had already served 169 days as at 13 September 1999 "of his State sentence" [sic] and that that period should be taken into account in calculating the date of the conclusion of the State sentence. The judge added that should these orders result in some concurrency between State and federal sentences then that was intended - a recognition, no doubt, of the fact that according to the calendar at least, the State sentence of six months ended on 29 September, which was after the commencement of the federal sentence imposed on 13 September.
Some criticisms have since been made of the form in which these sentencing orders were cast, but I need now mention only one of them. It does seem that his Honour fell into error in ordering that the State sentences should commence on the date of the appellant's arrest, 29 March, instead of on the date of sentencing, 13 September, as required by s.17(1) of the Sentencing Act 1991 in the circumstances of the case. But, given that the declaration of time already served (of 169 days to 13 September) acknowledged the period spent in custody between the date of arrest and the date of sentence, the result for the prisoner was not altered: the State sentences should have commenced on 13 September, but as the appellant immediately gained credit for the time spent in custody since arrest, the six-months sentence imposed on the second count must have ended by 29 September anyway. None the less formal correction of the sentencing orders made below would be required, if the sentences were otherwise to stand.
The appellant now appeals against the sentences imposed on 13 September by leave granted on 15 March last. He appeals on a number of grounds. Importantly, it is contended that the total sentence, and the sentence imposed in respect of the charge of defrauding the Commonwealth in particular, were manifestly excessive having regard to a number of circumstances, being these:
"(a) the full admissions and complete co-operation of the applicant;
(b) the applicant's plea of guilty at the earliest opportunity;
(c) the partial restitution;
(d)the personal circumstances and history of the applicant as they related to his offending;
(e)the applicant's co-operation with the authority as a witness in an unrelated matter;
(f)the applicant's previous Army record, his remorse and his good prospects of rehabilitation;
(g) the loss to the applicant of his Army career."
By recent amendment, the appellant added to this list the proper application of s.16G of the Commonwealth statute. The appellant also complains that each of the sentences was disproportionate, that the sentences for the State offences should not have been made substantially cumulative upon the sentence for the Commonwealth offence, that no weight at all was given to the co-operation he offered to the authorities, and that too much weight was given to general deterrence.
The appellant was brought up in Tasmania by a couple who adopted him. His childhood was unhappy. His adoptive father was a cruel disciplinarian who sexually abused the appellant. The appellant left school after Year 10 and, after working in a supermarket and as an assistant at a nursing home, enlisted in the Army at the age of 19 years. He completed a number of courses in the Army and demonstrated skill and application as a clerk engaged in administrative duties. He achieved the rank of corporal and appeared likely to advance further when he was overtaken by gambling, which became compulsive and led to the commission of the offences for which he was sentenced.
The appellant became depressed to the point of receiving psychiatric treatment. Part of the cause of his depression appears to have been the end of his marriage. The appellant married in 1993. A son was born of the marriage, which ended when his wife left him in July 1995. Eventually the appellant's loss of morale, direction and purpose in life, caused him to seek discharge from the service in November 1998, a service that had once supported him and from which he had derived considerable satisfaction and a sense of belonging.
The frauds perpetrated on the Commonwealth by the appellant were simple. As part of his duties the appellant operated a computer system which processed the payment of allowances to military personnel and civilians. The appellant made some 117 payments for false allowances to five bank accounts in his own name. He appropriated $104,223.44 in all, which he spent on gambling and the purchase of drugs for a table-top dancer whom he had befriended. The theft charge arose from the appellant misappropriating $750 of mess funds over which he had control as treasurer. As to the charge of obtaining property by deception, the appellant hired a motor car for the use of the Department of Defence but then used the car instead for his own purposes. The unpaid hire amounted to $1,853.36. A total sum of $21,218.77 was repaid to the Commonwealth by the diversion of superannuation or other entitlements due to the appellant, and when he was sentenced he was ordered to repay $83,004.67 to the Commonwealth by way of recompense.
It is plain from the material before us that the appellant co-operated with the police by freely admitting his crimes. He also co-operated by agreeing to give evidence against another soldier who had been charged with crimes similar to those committed by the appellant and who sought to blame the appellant. In the end, as it happened, the appellant's evidence was not required: the trial of the other soldier was conducted without it. The sentencing judge was somewhat dismissive of the appellant's promised assistance, describing it during the course of the plea as "a bit of self-preservation", and his Honour's sentencing remarks do not indicate that he gave it any further consideration. To my mind, the judge should have made some allowance for the assistance that was proffered. Moreover, as was submitted to us, the sentences imposed do seem somewhat out of kilter with other sentences imposed on like occasions.
In the end, however, I think it altogether unnecessary to explore the detail of the appellant's complaints. In substance, the appellant was sentenced to approximately four years in prison for the three offences in question and, although the amount of which the Commonwealth was defrauded was certainly substantial, the essence of the appellant's complaint is that the judge failed to give him credit, or sufficient credit, for the several mitigating factors upon which he was entitled to rely - and they were significant. For the respondents, counsel before us very fairly conceded at the outset that the judge did fall into error in that "the sentences imposed do not reflect in particular the appellant's early pleas of guilty, remorse, past co-operation and the operation of s.16G of the Commonwealth Crimes Act". For myself, I am not yet clear about this last, but I say no more about it: it is sufficient that there was error in those other respects identified by counsel for the Crown. To that extent the concession seems to me a proper one and so the exercise of the sentencing discretion is re-opened.
It remains then to re-sentence the appellant. In my view, the criminality of the offender was properly described below when the judge said:
“The defrauding of the Commonwealth was systematic and required a conscious and deliberate action by the prisoner; it occurred 117 times; it totalled $104,223.44 and occurred over an extended period of time and constituted a significant breach of trust of an employee upon his employer; that the use of the hire car constituting the charge of theft was a deliberate breach of trust upon his employer and was continuous over a period of approximately five weeks; and that the theft of his comrades' mess funds was a deliberate breach of trust he owed to his fellow army comrades.”
We are bound, when sentencing, to have regard to s.16G of the Crimes Act and I say, as did the judge below, that in sentencing I take into account the provisions of s.16A(2) and in particular sub-paragraphs (a), (c), (d), (e), (f), (g), (h), (j), (k), (m), (n) and (p). Particular mention may be made in this context of the appellant's early pleas of guilty, his offer of assistance on the trial of the other soldier, the remorse which was evident, the loss of his Army career which was significant, his determination to overcome his gambling addiction and make something of his life, his good prospects generally for rehabilitation and his willingness to make recompense as soon as he can. All of these are matters to be brought to account. Plainly, as the judge said below, general deterrence is of paramount significance for crimes such as these, and in all the circumstances I think that any sentence other than imprisonment would be quite inappropriate. But, bearing in mind the not insignificant matters in mitigation upon which the appellant was entitled to rely, I think that the justice of the case would be served by sentencing as follows.
On count 1, that of defrauding the Commonwealth, I would sentence the appellant to two years' imprisonment, ordering his release on recognisance after his having served 16 months (most of which has by now been served). On count 2, that of the theft of the mess funds, I would re-sentence the appellant to three months' imprisonment instead of six, but on the third count, that relating to the hire of the car, I would confirm the sentence of three months imposed below.
The latter two sentences, being imposed under State law, should be served concurrently and, in my view, so too should the sentence imposed on count 1. The two State sentences must commence from the date on which the appellant is sentenced because of s.17(1) of the Victorian Sentencing Act and the same should be so, I think, in relation to the Commonwealth sentence imposed on count 1. The days already spent in custody should be reckoned as having been served under all three sentences, it being common ground before us that s.16E(2) of the Commonwealth Crimes Act is applicable to make relevant to the imposition of the Commonwealth sentence the operation of s.18 of the State Sentencing Act.
CHARLES, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
PHILLIPS, J.A.:
I preface what I am about to say in relation to the orders of the Court by indicating that the quadruplicate as it stands (which I should say follows faithfully the Associate's indorsements on the two presentments) does not give effect to the judge's sentencing intention as announced orally on 13 September 1999, in that the sentence imposed according to the quadruplicate on count 2 on the first indictment/presentment was three months and not six months, and the reverse error was made in the quadruplicate when the sentence was described in relation to the only count on the second presentment. However, in order that there be no misunderstanding in the orders that this Court makes, I shall pronounce them by relating them to the contents of the quadruplicate. With that said, the following orders are proposed.
1.The appeal is allowed and the sentences below, as imposed according to the quadruplicate, are varied by –
(a)for the sentence imposed on count 1 on the Commonwealth indictment/presentment, substituting a sentence of two years' imprisonment and an order under s.20(1)(b) of the Crimes Act 1914 that after serving 16 months of that term of imprisonment the appellant be released upon giving security by recognisance of $500 with a condition that he be of good behaviour for eight months;
(b)for the sentence imposed on count 1 on presentment No.M00985595, substituting a sentence of three months' imprisonment;
(c)for the direction that the State sentences imposed in this case "are to commence 29.3.99", substituting a direction that those sentences "are to commence this day", that is, on 13 September 1999.
Otherwise the sentences imposed as set out in the quadruplicate are confirmed. In particular, the sentence imposed, according to the quadruplicate, on count 2 on the Commonwealth indictment/presentment of three months' imprisonment is confirmed, as also is the direction that the sentence imposed on count 1 on that indictment/presentment "commence this day", that is on 13 September 1999.
The result of the foregoing is that the total effective sentence for all three offences is two years' imprisonment, of which the appellant will be required to serve only 16 months before being released conditionally on recognisance.
The Court declares that as at the date of sentence on 13 September 1999, 169 days had been spent in custody and as at this day, 18 July 2000, 478 days have been spent in custody, and that such days be reckoned as time already served under the foregoing sentences. The Court directs that the making of this declaration and its details be noted in the records of the Court.
(Discussion ensued.)
PHILLIPS, J.A.:
I have to explain to the appellant himself under s.16F of the Crimes Act the effect of what we are doing. Mr Perkins, I do not know if you have followed what I have said, it is a rather tortuous exercise, but the effect of it is to quash the sentences that were imposed on you on 13 September in the County Court and to substitute sentences which in total are effectively, for all three offences, two years' imprisonment, and you will be qualified to be released after serving 16 months of those sentences upon giving security by way of recognisance bond as described to you on the last occasion, a bond of $500 to be of good behaviour, that is, not to commit any further offence for a period of eight months after your release. You will understand that the 16 months in prison plus the eight months in the community total the two years to which you have been sentenced. The sentences imposed for the State offences are now three months each and they are both to be served concurrently with the two years to which you are sentenced on the Commonwealth count of defrauding the Commonwealth. Do you follow?
APPELLANT: Yes, Your Honour.
PHILLIPS, J.A.:
You also have the benefit of all the days you have spent in custody since your arrest, which, we are told, now total 478. Do you understand that you are getting the benefit of the time already served?
APPELLANT: Yes.
PHILLIPS, J.A.:
The recognisance order has now been signed. The Court makes the orders I have indicated. The Court also declares under section 17A(2) of the Crimes Act 1914 that in respect of the offence charged in count 1 on the Commonwealth indictment/presentment the Court was satisfied that no sentence other than imprisonment was appropriate having regard to the nature of the offence, the appellant's role in its commission and the need to deter him and others from committing offences of the same or a similar character. It is directed that these reasons be entered in the records of the Court.
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