R v Stockton

[2000] VSCA 192

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 6 of 2000

THE QUEEN

v.

KENNETH JAMES STOCKTON

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2000
DATE OF JUDGMENT:	10 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 192

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Criminal law – Sentence – Theft from non-profit organisation – Most of moneys repaid – Sentence of 15 months’ imprisonment of which nine months suspended not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. S. Collins (pro bono)

WINNEKE, P.: 

1. I will invite Buchanan, J.A. to give the first judgment in this application.

BUCHANAN, J.A.: 

1. On 6 December 1989 the applicant was presented for trial in the County Court and pleaded not guilty to five counts of theft contrary to the provisions of s.74 of the Crimes Act 1958. After three days of trial the applicant pleaded guilty to one count of theft encompassing three counts in the presentment and was acquitted of the other counts by direction. After hearing a plea in mitigation, the trial judge sentenced the applicant to be imprisoned for a term of 15 months, nine months of which was suspended for a period of two years.

1. The applicant now seeks leave to appeal against the sentence.  The grounds of appeal are:

"1.The sentence was manifestly excessive in the light of the previous good character and history of the applicant.

2.The learned sentencing judge erred in that the sentence was disproportionate to the seriousness of the offence.

3.The learned sentencing judge erred in concluding that the only appropriate sentence was immediate imprisonment or alternatively erred in failing to consider whether imprisonment was the only appropriate sentence."

1. The applicant is now 52 years of age.  The thefts were committed by the applicant while he held the office of treasurer of the Hobsons Bay Childcare Centre, a non-profit organisation.  On two occasions the applicant signed cheques in the sum of $1,500 each, which the applicant paid into his own bank account and the bank account of a company controlled by his wife.  The applicant prepared cheque requisition forms which falsely stated that the cheques were payable to the accountants who acted for the Centre.  In order to further conceal the true position the applicant made out a false invoice for $6,000 for work the applicant said he had performed.  On another occasion, the applicant signed a cheque for $10,000 payable to his wife's company and paid that amount into the company's overdraft account.  The applicant wrote on the cheque butt that the cheque was paid to the Commonwealth Bank as a 90-day term deposit in order to earn interest for the Centre.  When the applicant was interviewed by the police, he made false denials in respect of each offence.  The applicant has subsequently repaid the sum of $10,000 to the Centre, leaving $3,000 unpaid.

1. The applicant gained the degree of Bachelor of Commerce from Melbourne University.  He subsequently held responsible positions with banks and other financial institutions.  He also wrote articles and a textbook on commercial matters.  In the mid-1980s the applicant started his own business concerned with international and foreign exchange markets.  That business eventually failed and the applicant was charged with a number of offences arising from an Australian Securities Commission investigation into the business.  The applicant was acquitted of all the charges.  As a result of the failure of the business the applicant became destitute.  At about the same time the applicant's second marriage failed.

1. The sentencing judge noted that the applicant had performed work for a number of charitable bodies and but for these offences had been of exemplary character, enjoying a high reputation in banking and financial circles.

1. Under the first ground of the application counsel for the applicant submitted that because the sentencing judge did not mention the delay between the commission of the crimes, which occurred in 1994 and 1995, and the date of sentence, his Honour did not accord any weight to that factor.  The sentencing judge did, however, refer to the dates upon which the offences were committed and I would not infer that he was not conscious of and failed to take into account the delay.  Error is not to be revealed by drawing up a comprehensive list of all relevant considerations and then comparing the list to reasons for sentence.  The delay was not out of the ordinary for a crime of this type, although it may well have been a time of strain and was no doubt disturbing to the applicant.

1. Other matters to which the applicant's counsel has drawn our attention under ground 1 are the absence of prior convictions, that the applicant has not offended since the commission of the crimes, that he has repaid $10,000 of the sum stolen, that the offences were committed at a time when the applicant was suffering the failure of a business and a marriage, that the applicant served for two years in the Army, and that he had donated his time and expertise to the Centre.

1. Those matters are typical of those which persons charged with offences of this kind can invoke in their favour.  The crimes were made possible by the applicant's good character.  He occupied a position of trust and appears not to have been closely supervised.  Those who commit like crimes usually have no prior criminal history, and they are often persons of good repute.  Discovery and punishment make it unlikely that they will re-offend, and usually cause hardship and distress simply because of the previous esteem in which they have been held and the trust reposed in them by others.

1. The applicant committed three distinct offences, in October 1994, March 1995 and June 1995.  He created false records to conceal the crimes, and for years denied that he had committed them.  It is difficult not to feel sympathy for the applicant in the position to which he has been brought.  However, that should not distract our attention from the importance that general deterrence ought to carry in the imposition of sentences for crimes such as these, which are not difficult to perpetrate but are usually difficult to detect.  In my opinion the sentence of 15 months' imprisonment was not manifestly excessive.

1. Under ground 2, which is related to the first ground, it was submitted that theft from a victim such as the Hobsons Bay Childcare Centre was relatively rare, the sum stolen was small and as a result of the conviction the applicant will never be able to work in the banking or financial industries again.

1. In my opinion the presence of the foregoing circumstances does not lead to the result that the sentence was disproportionate to the seriousness of the offences.  The fact that the applicant will not be trusted with money is a natural result of his own conduct.  The seriousness of the offence is not just to be gauged by the small sum stolen and the dearth of thefts from non-profit associations.  The seriousness of the crimes is reflected in the position of trust which the applicant abused, the repetition of the crimes over a lengthy period, their deliberate nature and the steps taken by the applicant to conceal the thefts.

1. Under ground 3 it was submitted that the sentencing judge erred in concluding that the appropriate sentence was immediate imprisonment or alternatively in failing to consider whether imprisonment was the only appropriate sentence, and that his Honour failed to properly consider the provisions of ss.72 and 75 of the Sentencing Act.

1. The sentencing judge referred to the submission made to him that he should adjourn the proceedings and release the applicant upon his giving undertakings pursuant to s.75(2) of the Act, and said:

"Having given this matter anxious consideration I am of the view, however, that the gravity of the offence when viewed objectively is such that it outweighs the force of the matters raised in mitigation and precludes the exercise of the discretion referred to in s.8 as well as the proceeding pursuant to either s.75 or s.72 of the Sentencing Act."

1. In my opinion there was no appellable error demonstrated by this conclusion.  The question is not whether the Court would exercise the sentencing discretion in the same way as the sentencing judge:  rather, it is whether the sentence chosen by the sentencing judge was within the range of sentences that was reasonably open to him.  In my view the sentence was within this range.

1. I would dismiss the application.

WINNEKE, P.: 

1. I agree.  I am not satisfied that the sentence which the judge imposed was manifestly excessive, nor am I satisfied that he erred in passing it rather than wholly suspending it.  As these were the only bases upon which this application was fought, it necessarily follows that the application must fail.

CALLAWAY, J.A.: 

1. I also agree.

WINNEKE, P.: 

1. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.