State of Tasmania v O'Dwyer

[2009] TASSC 13

[2009] TASSC 13

CITATION:            State of Tasmania v O'Dwyer [2009] TASSC 13

PARTIES:  TASMANIA (STATE OF)
  v
  O'DWYER, Jacqueline Bree

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  783/2008
DELIVERED ON:  3 March 2009
DELIVERED AT:  Hobart
HEARING DATE:  3 March 2009
JUDGMENT OF:  Crawford CJ, Evans and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Appeals by Crown – Principles applied by appellate court to Crown appeals.

Griffiths v R (1977) 137 CLR 293; R v Tait (1979) 46 FLR 386; R v Dowie [1989] Tas R 167; Malvaso v R (1989) 168 CLR 227 at 234; Everett v R (1994) 68 ALJR 875, referred to.
Aust Dig Criminal Law [3527]

REPRESENTATION:

Counsel:
           Appellant:  K Brown
           Respondent:  T Jago
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission of Tasmania

Judgment Number:  [2009] TASSC 13
Number of paragraphs:  7

Serial No 13/2009
File No 783/2008

STATE OF TASMANIA v JACQUELINE BREE O'DWYER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
PORTER J
3 March 2009

Order of the Court 

Appeal dismissed

Serial No 13/2009
File No 783/2008

STATE OF TASMANIA v JACQUELINE BREE O'DWYER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
PORTER J
3 March 2009

1. The respondent was found guilty by a jury of nine counts of dishonestly acquiring a financial advantage, nine counts of obtaining goods by a false pretence, and one count of conspiracy.  She was sentenced to imprisonment for 15 months, of which 11 months were suspended on condition that for a period of four years she commits no crime or offence involving dishonesty.  The Director of Public Prosecutions appealed upon the sole ground that the sentence was manifestly inadequate.

1. The respondent was employed by Fairbrother Pty Ltd.  Her partner's company, in which she had an interest, was subcontracted to do work for her employer from time to time.  She committed the crimes between July 2004 and June 2005.  There were three ways in which she did so.  The first was by preparing invoices for her partner's company which inaccurately detailed the amount to which it was entitled for work and she then authorised the payment of those invoices by her employer.  Eight of the counts of dishonestly acquiring a financial advantage and one count of conspiracy related to her offending in that way.  The second method was by authorising payment of an invoice from her partner's company for work which had not commenced.  One count of dishonestly acquiring a financial advantage related to that conduct.  The third method was by dishonestly ordering goods and authorising her employer to pay for them.  Nine counts of obtaining goods by a false pretence were committed in that way.  The total of what was dishonestly acquired in money and goods was about $74,000.  Consequent upon her detection, she repaid $13,160.

1. Counsel for the Director submitted that aggravating factors included that the respondent's conduct was repeated and prolonged over the space of 12 months; that her conduct amounted to serious breaches of trust which demanded a sentence of general deterrence; that her offending was difficult to detect; and that there was a complete lack of remorse.  The point is made that remorse may be a mitigating factor, but absence of remorse is not an aggravating factor.

1. The respondent was aged 36 at the time of sentencing, had a long employment history, and had no record for offending.  The learned judge accepted that her partner's business in which she had an interest would suffer as a consequence of her imprisonment.  Nevertheless, his Honour considered that a term of actual imprisonment was required because of the breaches of trust, the amount involved, and her persistence with the criminal conduct.  However, his Honour decided to suspend the last 11 of the 15 months of the imprisonment for four years on a condition that she commit no crime or offence involving dishonesty in recognition "of the subjective characteristics of the offender, the prospect for reform, and a method of future subjective deterrence".

1. The Court is satisfied that a sentence of 15 months' imprisonment was not manifestly inadequate and that was not an argument advanced by counsel for the appellant.  What was advanced was that the suspension of 11 months of the imprisonment rendered the sentence manifestly inadequate.  The sentence was a lenient one and for that reason the respondent was fortunate.  However, the Court is not satisfied that the lenience rendered the sentence manifestly inadequate to the point that it should be set aside and replaced with a longer period of actual incarceration.  It is an accepted principle that Crown appeals should be brought only in rare and exceptional cases to establish a point of principle.  The authorities for that are Griffiths v R (1977) 137 CLR 293 at 310, R v Tait (1979) 46 FLR 386 at 388 – 389; R v Dowie [1989] Tas R 167 at 180; Malvaso v R (1989) 168 CLR 227 at 234; and Everett v R (1994) 68 ALJR 875 at 877. Although the Court should interfere where it is necessary to avoid such a manifest inadequacy in sentence or inconsistency in sentencing standards to the extent that the error is so grave that it is essential in the administration of justice that it be corrected, the Court does not consider that this sentence falls within that category.

1. Another factor that influences the Court is that by the time the appeal was ready for hearing on 20 November last, the respondent had completed serving the active part of the imprisonment and had been released back into the community eight days earlier.  An element of unfairness is raised if she is to be returned to prison, having completed serving the imprisonment required by the original sentence.

1. For these reasons the appeal is dismissed.