R v Wright

[1999] QCA 507

99.507

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

PINCUS JA

CA No 309 of 1999
THE QUEEN
v.

MICHAEL JOHN WRIGHT

BRISBANE
..DATE 03/12/99
031299 T11/PMD18 M/T COA301/99
PINCUS JA: This is an application challenging sentences of
imprisonment imposed on the applicant in the District Court.

There were two sentences - one of 18 months and one of two months - the 18 month sentence being suspended after three months.

The applicant was initially indicted on six counts and convicted of two of them; the other four failed. The only count which went to trial was one on which there was a conviction of what I will describe as the major offence, one of dishonestly applying to the applicant's own use a sum of money belonging to Rothmans of Pall Mall Australia Limited.

The other five counts related to small sums of expenses alleged to have been fraudulently obtained, sums ranging from $85 to $95. The amount of money involved in the major offence is unclear, but appears to have been in the region of $3,000. Initially, a sum of $3,966 was mentioned in the indictment, but that was amended to mention simply a sum of money, amount unspecified.

I have referred to the fact that four of the lesser counts failed. Two of them did so because the Crown enter nolle prosequis during the trial and the other two because there were verdicts of not guilty. In summary, then, there were six counts. There was a conviction after a trial on the major count. There was a plea of guilty to one of the minor counts and the other four failed.

031299 T11/PMD18 M/T COA301/99
It is necessary to mention the course of events in relation
to sentencing, because a point taken against the sentences

is that the applicant was punished for pleading not guilty.

After the jury had retired to consider their verdicts, the

Judge remarked:
"I think I can say subject to anything new and surprising

which I am told by the Crown on any sentencing procedures I am not looking at imprisonment. I think it can be dealt with conveniently by a fine."

In the result, as I have mentioned, his Honour did impose terms of imprisonment. One of the terms was one of two months imprisonment in respect of a sum of only $95.

To return to the course of events in sentencing, the prosecutor, rightly as it seems to me, told the Judge that the criminal history was of no relevance. There was only a minor offence and that quite an old one. The prosecutor emphasised in submissions to the Judge the applicant's conduct at the trial, and what was done on his behalf before the trial by counsel. It appears that the latter references had to do with discussions between counsel who at various times acted for the applicant, and the Crown - discussions which, as it seems to me, might better have been left unmentioned.

It was submitted on sentence, on behalf of the Crown, that the applicant had tried to defraud the jury, that a previous counsel and the prosecutor had "the matter sorted out" and that the applicant had "changed his story a number of 031299 T11/PMD18 M/T COA301/99

times". That seems to have been a reference to what was communicated by former defence counsel to the prosecutor. It was also said below on behalf of the Crown that the applicant's conduct showed "the utter contempt with which he holds the criminal justice system" and that he had tried to thwart the system at every turn, by first intimating a plea of guilty, and by other means. These matters were urged upon the Judge as a ground for dissuading his Honour from his tentatively expressed intention not to send the applicant to gaol. The Crown also produced below a schedule of previous comparable sentences, a schedule which has not been produced to us.

After discussing in a general way the method whereby the applicant had committed the major offence, that for which he was sentenced to 18 months imprisonment, his Honour made these observations:

"What I find disturbing when it comes to determining an appropriate sentence is the fact that you have refused to admit that you were guilty of the offence. You maintained an absence of dishonest motive and that evidence satisfies me that you did have and from time to time altered your story or your explanations. I have not been able to do anything other than form the view that the appropriate punishment is one of imprisonment."

In the context of these remarks, it is difficult to avoid the conclusion that in determining to imprison the applicant the Judge was influenced largely by the submissions which were made as to the way in which the applicant had gone about resisting the charge against him.

031299 T11/PMD18 M/T COA301/99
His Honour went on to refer to the view that he had
previously expressed that a fine would be imposed and he
added that it was necessary to mark community disapproval
and to deter other similarly minded employees and therefore
a conviction must be recorded.

If ever there were a case in which the inference could be drawn that the difference between imprisonment and no imprisonment was the conduct of the defence, this is it. Counsel for the applicant submitted, and I agree, that a doctrine expressed by the members of the High Court in Siganto v. The Queen [1998] HCA 74, reported in 194 C.L.R. 656, may be difficult to apply. Nevertheless, one must do one's best to apply it. In that case, Angel J. is reported at page 663 of the C.L.Rs as having made somewhat similar remarks, criticising the conduct of the offender in relation to the mode of resisting the charge. At para 21 in the principal judgment this is said:

"It is argued on behalf of the appellant that the manner in which Angel J referred to the appellant's plea of not guilty indicates that his Honour treated this as an aggravating circumstance, and increased the punishment which would otherwise have been imposed by reason of the fact that the appellant defended himself against the charge. Without question, that would have constituted a serious error."

Those remarks, as it seems to me, apply here. Although I recognise the difficulty to which reference has been made, of reconciling the principle that one cannot punish more heavily for a plea of not guilty with the principle that one may make a favourable allowance for a plea of guilty, it 031299 T11/PMD18 M/T COA301/99

appears to me that if one is to apply the principle of
Siganto at all it must be applied here.

I am influenced also by the circumstance that the period of two months imprisonment in respect of the $95 offence, to which the applicant pleaded guilty, seems to have been plainly excessive. It is difficult to imagine why his Honour thought that any term of imprisonment in respect of such a small amount of money, for a mature person who had never previously come into significant collision with the law, was appropriate.

The conclusion to which I have come, which is that the sentences should be set aside, is reinforced by the schedule produced by the Crown in the case of Cox, which is recorded in (1995) 85 A.C.R. 1. That schedule, as Mr Clark has emphasised before us, related to cases in which there were pleas of guilty. But nevertheless, in quite a number of those cases the amounts were significantly more in than the present case, and it seems perfectly clear that at that stage the pattern of sentencing was such that there would have been no serious consideration of sending the present applicant to gaol for a sum of $3,000 dishonestly obtained, in view of his lack of previous record.

The conclusion to which I have come - largely because of the difficulty of reconciling the course of events below with Siganto - is that the appeal should be allowed and the sentences set aside.

031299 T11/PMD18 M/T COA301/99

The submission made by Mr Hamlyn-Harris on behalf of the applicant includes an attack upon the Judge's having recorded convictions. It does not seem to me that there is any sound basis for that attack. The amounts of money involved were not considerable, but there was as to the major offence a course of dishonesty over a substantial period of time by a person who should certainly have known better.

There is a problem as to what to do about the punishment. We are informed that the applicant has completed the three months imprisonment, leaving 15 months suspended. Had it not been for the fact that the applicant had done three months imprisonment I would have been in favour of imposing a substantial fine. But since he has served three months already, the orders which I would propose are as follows.

I would grant the application, allow the appeal against the sentences of imprisonment imposed on the applicant and set aside those sentences. I would confirm the recording of convictions.

THE CHIEF JUSTICE: I agree.

DAVIES JA: I agree.

THE CHIEF JUSTICE: Those are the orders of the Court.
031299 T11/PMD18 M/T COA301/99

-----