Taylor v The Queen
[2019] VSCA 162
•5 July 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0099
| JULIAN RICHARD TAYLOR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 July 2019 |
| DATE OF JUDGMENT: | 5 July 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 162 |
| JUDGMENT APPEALED FROM: | DPP v Taylor (Unreported, County Court of Victoria, 14 August 2018 (Conviction); [2018] VCC 2271 (Sentence)) (Judge Brookes) |
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CRIMINAL LAW – Appeal – Conviction – Obtaining financial advantage by deception and associated charges – Applicant obtained registration as a teacher from Victorian Institute of Teaching falsely declaring that he had no prior convictions – Applicant obtained employment as a teacher based on registration falsely declaring that he had no prior convictions – Whether disclosure of prior convictions improperly prejudicial – Whether obtaining registration is a financial advantage – Whether obtaining employment is a financial advantage – Whether judge misdirected the jury on meaning of financial advantage – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception and associated charges – Total effective sentence of 2 years and 11 months with non-parole period of 2 years and 2 months – Applicant obtained registration as a teacher from Victorian Institute of Teaching falsely declaring that he had no prior convictions – Applicant obtained employment as a teacher based on registration falsely declaring that he had no prior convictions – Whether judge erred in assessing prospects of rehabilitation – Whether totality principle infringed – Whether sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Crown | [Madame Prosecutor] | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
Over the years, the applicant, who was born Steven Robert Barr on 16 January 1965, has gone by number of different names, including Julian Richard Taylor.
On 14 August 2018, a jury empanelled in the County Court found the applicant — charged under the name Julian Richard Taylor (formerly known as Steven Mark Bahntoff; Steven Robert Barr; Steven Robert Parker; Julian Mark Bahntoff; and Steven Robert Bahntoff) — guilty of four charges of using a false document[1] (charges 1, 3, 7 and 10); one charge of perjury[2] (charge 2); seven charges of obtaining a financial advantage by deception[3] (charges 4, 5, 6, 8, 11, 12 and 13); and one charge of making, using or supplying identification information[4] (charge 9).
[1]Crimes Act 1958, s 83A(4). The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 314(1). The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 82(1). The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 192B(1). The maximum penalty is five years’ imprisonment.
Following a plea on 18 September 2018 conducted by counsel on the applicant’s behalf, on 20 November 2018 the trial judge sentenced the applicant to a total effective sentence of two years and 11 months’ imprisonment, with a non-parole period of two years and two months, in the manner we will later set out.
The applicant now seeks leave to appeal against both conviction and sentence.[5]
[5]The applicant also sought an extension of time within which to bring both applications. Although initially the respondent had in writing opposed the grant of any extension of time, upon the hearing in this Court that opposition was withdrawn. Given that we thought that the delay in filing the relevant notices (and other necessary documents) was adequately explained, we granted an extension in the case of each application.
In our opinion, however, neither application has any substance. Both must be refused. Our reasons follow.
The prosecution case at trial
So as to understand the issues raised by these applications, it is necessary to set out the main facts.
The applicant was born Steven Robert Barr in England on 16 January 1965. He moved to Australia prior to 1990 and obtained an Australian passport in that name on 22 May 1990. Thereafter, between 27 November 1990 and 18 April 1991, he registered multiple changes of name in Victoria.
It seems that the applicant has over the years been convicted (in Victoria and elsewhere) of a significant number of crimes under various names, including Steven Mark Bahntoff and Julian Mark Bahntoff.
In his reasons for sentence, the judge provided a summary of the applicant’s present offending:
The facts and circumstances of [the applicant’s] offending were the subject of the trial and it is agreed between the parties that they did not depart in any matter of significance from the Amended Summary of Prosecution Opening dated 1 August 2018; however, in broad summary, over a period of almost ten years, from 1 November 2005 to 21 April 2015, [he] repeatedly misrepresented [himself] to the Victorian Institute of Teaching and to each successive school to which [he] applied to teach, being Ilim College, St Paul’s Anglican Grammar School, Alexandra [and] Hamilton College and Traralgon College. Despite knowing well the obligations to disclose [his] true identity and [his] criminal record, [he] chose time and time again to misrepresent [his] identity and to omit, or blatantly deny, [his] criminal past of serious dishonesty offences in numerous official forms and statutory declarations. [He] then used the registration obtained by deception to mislead the schools who were [his] trusting employers.
As a part of this scheme, [he] also chose to falsify official identity documents such as Birth Certificates and Change of Name forms, utilising the names of innocent parties as having certified the veracity of these forgeries. Throughout the course of this endeavour [he] also committed perjury.
In 1998 the applicant enrolled in a Bachelor of Arts and Bachelor of Commerce double degree at Deakin University (‘Deakin’) under the name Julian Mark Bahntoff. He was given a unique university ID number. Such numbers are used to identify students and maintain the student’s record, irrespective of whether the student changes their course or their name. On 28 October 2003, the applicant graduated under the name Julian Mark Bahntoff.
In 2003, using the name Julian Mark Bahntoff, the applicant enrolled with Monash University (‘Monash’), although he later withdrew from the course. The following year, on 19 January 2004, the name under which he was enrolled at Monash was changed at his request to Julian Richard Taylor. From 2004 to 2005, he studied for a Graduate Diploma in Education (Secondary), graduating under that name in October 2007.
Between 2006 and 2008, the applicant studied for a Master of Education degree at Monash, but did not complete the degree. Some years later, on 6 January 2014, the name under which he was enrolled was changed at his request to Julian Steven Taylor.
Teacher registration
Teacher registration in Victoria is the province of the Victorian Institute of Teaching (‘VIT’). VIT may grant registration to an applicant if the applicant is qualified, including being fit to teach.
Until June 2007, the registration of teachers in Victoria was governed by the Victorian Institute of Teaching Act 2001 (now repealed); and from 1 July 2007, was governed by the Education and Training Reform Act 2006.
Under both Acts, an applicant for teacher registration:
· is required to undergo a National Criminal History Record Check (‘NCHRC’) as a part of the qualification criteria, or provide evidence required to prove fitness (or suitability) to be a teacher;
· may be required to undergo a criminal records check or provide information of a criminal record, or be required to provide authorisation for VIT to carry out such a check; and
· must in their application provide details of any convictions or finding of guilt in respect of indictable offences.
VIT may refuse registration on grounds which include that:
· the character of the applicant is such that it would not be in the public interest to allow the applicant to teach in school;
· the applicant has been convicted or found guilty of an indictable offence in Victoria or an equivalent offence in another jurisdiction;
· the applicant has been found guilty or convicted of an offence where the ability of the applicant to teach in a school is likely to be affected because of the conviction or finding of guilt, or where it is not in the public interest to allow the applicant to teach in a school because of the conviction or finding of guilt;
· the applicant has not provided evidence of his suitability to teach.
In the case of provisional registration, an applicant who is qualified because they satisfy the criteria for fitness to teach, but who has not yet achieved the required standard of professional practice, may still be provisionally registered.
So far as teacher registration pursuant to mutual recognition (of interstate registration) is concerned, VIT has the power (at least since 2011) to request information concerning the criminal record of a registered teacher from police and from employers, and ensure that criminal checks are carried out at least every five years.
Importantly, perhaps, given the way the applicant has sought to advance his case in this Court, convictions or findings of guilt for indictable offences do not automatically preclude a person from being eligible to be registered as a teacher or to remain registered as a teacher. Where an applicant for registration discloses such prior criminal history, however, VIT routinely conducts an enquiry to assess the applicant’s fitness and or suitability to practise as a teacher.
Charges 1 to 4 — Obtaining registration as a teacher
On 1 November 2005, the applicant provided Deakin with a copy of a document purporting to be a Victorian Change of Name Registration dated 29 July 2003 — ostensibly showing a change of name from Julian Mark Bahntoff to Julian Richard Taylor — and requested that Deakin record that change of name. The Change of Registration document he provided was false. Its details do not match those recorded in the Victorian Birth, Deaths and Marriages register under the registration number that the applicant provided. The prosecution case was that the applicant used a copy of this false document in order to induce Deakin to change the name on his academic records (charge 1 – Using a copy of a false document).
Deakin changed the name on the applicant’s academic records pursuant to his request. The prosecution alleged that the applicant changed the name on his academic records to Julian Richard Taylor in order to hide his previous names — and thereby conceal his criminal history — so as to achieve registration with VIT, thereby enabling him to secure teaching positions in the years following.
Around 8 November 2005, the applicant asked Deakin to provide him with a copy of his academic transcript under the (now recorded) name Julian Richard Taylor. Deakin did so. A copy of the transcript so provided was certified at Burwood police station on 8 November 2005. It was provided in support of the applicant’s application to VIT for provisional registration as a teacher, that application being received by VIT on 10 November 2005. The application included the following false information:
· the applicant’s place of birth was Hobart, Tasmania;
· the request to list all previous names of the applicant was left blank; and
· in response to the question, ‘Have you ever been convicted or found guilty of any offences in any Australian State or Territory or in any other country, whether that conviction was recorded or not?’, the applicant answered, ‘No’.
The VIT application was accompanied by a statutory declaration made and signed by the applicant on 4 November 2005, acknowledging that the information in the relevant Application for Registration form was true and correct, and that the information was provided in the belief that a person making a false statement is liable to the penalties of perjury (charge 2 – Perjury).
On or around 9 November 2005, a Criminal Record Check — which, as we have mentioned, is a requirement for VIT registration — was carried out in the name of Julian Richard Taylor.
VIT, as indicated, received the application for provisional teaching registration from the applicant on 10 November 2005. In support of the application, the applicant provided what purported to be a certified copy of a Tasmanian Record of Birth issued on 20 December 1993, recording the birth of Julian Richard Taylor in Hobart, Tasmania, on 16 January 1965. The Tasmanian Register of Births contains no record, however, of any Julian Richard Taylor, the registration number on the copy document provided instead corresponding to a female born 7 May 1965. The prosecution alleged that the applicant knowingly provided a copy of this false document so as to conceal his criminal history from VIT, and thereby induce VIT to grant him provisional teaching registration (charge 3 – Using a copy of a false document).
The prosecution contended that the 2005 VIT application for provisional registration and the accompanying documents included the following deceptions, in that the applicant:
· falsely represented that he had never been convicted or found guilty of any offences in any Australian State or Territory, notwithstanding that he knew that he had previously been convicted in Victoria and interstate of serious indictable criminal offences;
· falsely represented his identity — thereby concealing his criminal history — by failing to disclose other names under which he had been convicted previously (in particular Steven Mark Bahntoff, Steven Robert Barr, Steven Robert Parker, Julian Mark Bahntoff and Steven Robert Bahntoff);
· used the name Julian Richard Taylor and Julian Taylor in order to conceal his criminal history — criminal history checks being carried out in those names — thereby frustrating proper assessment by VIT of the applicant’s suitability to teach; and
· falsely represented his identity by providing false identification information and documentation so as to conceal his criminal history.
It was the prosecution case that, as a result of the false information given by the applicant as to his identity and criminal history, VIT was prevented from adequately conducting necessary inquiries in order to assess the applicant’s fitness and suitability for registration as a teacher (in circumstances in which VIT may refuse registration if an applicant has been convicted of an offence such that his ability to teach is likely to be affected because of the conviction, or where it is not in the public interest for him to teach given that conviction). The prosecution contended that, given the nature of the information that VIT required the applicant to provide, the applicant must have known that he was deceiving VIT dishonestly.
VIT wrote to the applicant on 19 December 2005, advising him an Australian criminal history check had been conducted and the results were satisfactory. Shortly thereafter, on 25 January 2006, VIT granted the applicant provisional teaching registration, rendering the applicant eligible to teach in Victoria (charge 4 – Obtaining financial advantage by deception).
Charge 5 — Employment at Ilim College
Ilim College (‘Ilim’), located in Dallas, Victoria, received an application for a Mathematics teaching position from the applicant under the name Julian Taylor on 10 October 2005. He attached a curriculum vitae in the name Julian Richard Taylor, including his Deakin qualifications. (At that time, and until 1 November 2005, the Deakin qualifications were in the name Julian Mark Bahntoff.)
On 21 October 2005, Ilim offered the applicant employment, to commence on 30 January 2006. The contract of employment was conditional upon the applicant obtaining registration with VIT and on his having no relevant criminal history. Ilim would not have employed the applicant unless he had VIT registration. Further, Ilim would automatically have terminated the applicant’s employment if any relevant criminal history was disclosed by the compulsory Criminal Record Check (‘CRC’). The letter of offer stated that:
· the offer of employment was conditional upon the applicant supplying a document verifying his registration with VIT;
· the school was not bound by acceptance of the offer until the applicant provided evidence of current registration with VIT to their satisfaction (and if it was not received by commencement date the school reserved the right to withdraw the offer);
· after commencement, if the applicant failed to provide proof of VIT registration, the school reserved the right to terminate employment without notice;
· the offer of employment was also conditional upon the applicant submitting to a CRC, and to the CRC confirming no record of relevant criminal activity as determined by the school;
· the school was not bound by acceptance of the offer until the applicant provided a CRC confirming no record of criminal activity (and if it was not received by commencement date, the school reserved the right to withdraw the offer); and
· after commencement, if the applicant failed to provide a valid CRC, or the CRC provided contained a record of relevant criminal activity, the school reserved the right to terminate the applicant’s employment without notice.
The applicant signed the letter, thereby accepting Ilim’s offer of employment (and its relevant terms), on 26 October 2005.
On 25 January 2006 — pursuant to the November 20005 application containing false information — VIT granted the applicant provisional registration as a teacher.
A few days later, on 30 January 2006, the applicant commenced full-time employment as a teacher at Ilim, where he remained until 18 December 2007. Over that time, the applicant received payment of $99,695.09 in addition to superannuation. During his tenure, the applicant provided Ilim with proof of his VIT registration, and indicated that a valid CRC was performed on 9 November 2005. By so doing, he falsely represented that he had valid registration from VIT, and that he had no relevant criminal history. On the basis of these deceptive representations, the applicant secured employment with Ilim (charge 5 – Obtaining financial advantage by deception).
Charge 6 — Employment at St Paul’s Anglican Grammar School
In September 2007, St Paul’s Anglican Grammar School, Warragul, received an application for employment from the applicant under the name Julian Taylor. It was a requirement for employment that the applicant be registered as a teacher. He provided his VIT registration number accordingly.
When he made the application, the applicant was within his extended provisional registration period with VIT, which was due to expire 19 December 2007. On 20 December 2007, the applicant applied for full VIT registration in the name of Julian Richard Taylor.
A few weeks later, on 1 January 2008, the applicant commenced employment as a teacher at St Paul’s Grammar School, where he remained employed until about 31 December 2008. Over this period, the applicant received a salary of $64,331 and superannuation.
During his time at the school, the staff record created for Julian Taylor included a photograph and personal details, together with his VIT registration details. The applicant thereby falsely represented to St Paul’s Grammar School that he was validly registered with VIT; and, on that basis, the applicant secured employment (charge 6 – Obtaining financial advantage by deception).
Charges 7 and 8 — Attaining full teaching registration
VIT received an application from the applicant for full teacher registration on 20 December 2007. The application, dated 17 December 2007, was in the name Julian Richard Taylor.
In support of the application, a Consent to Obtain a National Criminal History Record Check (‘NCHRC') on behalf of a Registered Teacher form was received by VIT from the applicant on 3 January 2008. Attached to this consent form was a document purporting to be a certified copy of a Tasmanian Record of Birth recording that Julian Richard Taylor was born in Hobart, Tasmania, on 16 January 1965. The applicant provided this false document for the purpose of concealing his criminal history from VIT and to thereby induce VIT to grant him full registration as a teacher (charge 7 – Using a copy of a false document).
The application and the documents provided in support, received by VIT on 3 January 2008, included a number of deceptions, including falsely representing the identity of the applicant — thereby concealing his criminal history — and failing to disclose those names associated with his past convictions (Steven Mark Bahntoff, Steven Robert Barr, Steven Robert Parker, Julian Mark Bahntoff and Steven Robert Bahntoff).
On 21 January 2008, based on the bogus material provided by the applicant, VIT granted him full registration (charge 8 – Obtaining financial advantage by deception).
The prosecution contended that it must have been evident to the applicant on the face of the VIT application documents that VIT required an accurate criminal history check, and to be informed if an applicant for registration had a criminal history, in order for VIT teacher registration to be properly assessed and granted. As this was the second application by the applicant for VIT registration relying on false documentation and information, the applicant must have known he was deceiving VIT and was doing so dishonestly.
On 6 August 2010, VIT received notification from the applicant that he had left the teaching profession. His Victorian teacher registration ceased accordingly that day (although the applicant continued teaching interstate).
Charges 9 to 11 — Attaining mutual teacher registration
On 29 November 2011, VIT received an Application for Registration – Mutual Recognition from the applicant, in which the applicant once more asserted that he had no criminal history to disclose, nominating his date of birth as 16 January 1965 and his place of birth as Hobart, Tasmania.
Enclosed with the application was a document purporting to be a certified copy of a Tasmanian Record of Birth. It purported to record that Julian Richard Taylor was born on 16 January 1965 in Hobart, Tasmania. By providing this false document in support of the application for mutual recognition registration, the applicant:
· used identification information that he knew did not relate to him — but which he knew to be identification information — in order to conceal his criminal history and thereby commit an indictable offence, that is, to obtain mutual recognition registration from VIT by deception (charge 9 – Making, using or supplying identification information); and
· used a copy of a document that he knew to be false to conceal his criminal history and thereby to induce VIT to grant him mutual teacher registration (charge 10 – Using a copy of a false document).
The application for mutual recognition registration was received by VIT on 29 November 2011. Enclosed with it were a Proof of Identity and a NCHRC consent form dated and signed by the applicant on 24 October 2011. Documents provided in support included the following deceptions. They:
· falsely represented that the applicant had never been convicted or found guilty of any offences in any Australian State or Territory by answering ‘no’ to that direct question;
· falsely represented the applicant’s identity — thereby concealing his criminal history — and failed to disclose the following names by which he was known at the time of his previous convictions: Steven Mark Bahntoff; Steven Robert Barr; Steven Robert Parker; Julian Mark Bahntoff and Steven Robert Bahntoff;
· used the name Julian Richard Taylor and Julian Taylor in order to conceal the applicant’s criminal history and frustrate the NCHRC, thereby preventing VIT from properly assessing his suitability to teach;
· falsely represented the applicant’s identity, by providing false identification information and documentation in order to conceal his criminal history; and
· falsely represented that he had previously been validly registered with VIT, by providing certified copies of previous VIT registration cards.
The prosecution contended that it must have been evident to the applicant that VIT required an accurate criminal history check so as to be informed if any applicant for registration had a criminal history and thereby assess whether teacher registration should be granted. It was contended that, this being the third application by the applicant relying on false documents and information, the applicant must have known that he was deceiving VIT and was doing so dishonestly.
On 12 January 2008, based on the material provided by the applicant, VIT granted him full teacher registration under his previous registration number (charge 11 – Obtaining financial advantage by deception).
Charge 12 — Employment at Hamilton and Alexandra College
On 10 October 2011, the Hamilton and Alexandra College, Hamilton, received an application for a teaching position from the applicant under the name Richard Taylor. He was interviewed for the position on 13 October 2011; and, on 19 October 2011, the College sent a letter of offer to the applicant, formally offering him the position of mathematics teacher at the school.
The offer was subject to one year’s probation and the applicant having registration with VIT. It also required an acceptable criminal record check. On 24 October 2011, the applicant signed the letter of offer accepting these terms.
As a result, the applicant was employed by the Hamilton and Alexandra College from 1 February 2012 until he resigned towards the end of the teaching year in 2012 (ceasing employment by 31 January 2013). During this time, the applicant received a salary of $75,132.00 and superannuation, and obtained a staff discount of $1,251.00 for the enrolment of his daughter.
On two occasions, the applicant provided the College with copies of VIT registration cards, in proof of his valid registration, thereby falsely representing that he was validly registered. Since all teachers at the College were required to undergo criminal record checks, by providing his name as Julian Richard Taylor and Julian Taylor, the applicant also concealed his criminal history. On the basis of these misrepresentations, the applicant secured employment with the Hamilton and Alexandra College (charge 12 – Obtaining financial advantage by deception).
Charge 13 — Employment at Traralgon College
By an application dated 6 March 2015, the applicant applied for a physics and mathematics teaching position at Traralgon College, Traralgon (the application being received on 17 March 2015), under the name Julian Taylor. At that time, the applicant was working as a teacher in China.
On 14 April 2015, Traralgon College made an offer of employment to the applicant, the offer being subject to the applicant having current provisional or full registration or permission to teach. The applicant accepted the offer on 21 April 2015, presenting the College with a signed acceptance form which included his name as Julian Taylor, his teacher registration number and date of birth of 16 January 1965.
On the basis of his confirming his VIT registration number with Traralgon College, the applicant obtained a financial advantage, being a full-time teaching position at Traralgon College (with a salary of $71,589.00 per annum plus superannuation), in that he falsely represented that he was validly registered with VIT (charge 13 – Obtaining financial advantage by deception).
Evidence as to the applicant’s identity
As we have said, the applicant was born Steven Robert Barr on 16 January 1965. The prosecution sought to establish the applicant’s identity as the offender through various steps:
· on 22 May 1990, the applicant was issued with an Australian passport J18262849, in the name Steven Robert Barr, date of birth 16 January 1965;
· on 27 November 2011, the applicant registered a change of name with Births, Deaths and Marriages (Victoria) from Steven Robert Barr to Steven Robert Parker;
· around 27 December 1990, the applicant applied for a new Australian passport K0471277 in the name of Steven Robert Parker, with the same date of birth;
· on 18 December 1990, Steven Robert Parker (with the same date of birth) was issued a car licence number 48861647;
· the day previously, however, 17 December 1990, the applicant married Keng Ng, using his birth name, Steven Robert Barr, and he used that name when his son’s birth was registered on 16 March 1991;
· on 29 January 1991, Steven Robert Parker was issued with his new Australian passport in that name, and Steven Robert Barr changed his name with Births, Deaths and Marriages (Victoria) to Steven Mark Bahntoff;
· on 8 February 1991, a fingerprint was taken from Steven Robert Parker, that fingerprint being forensically matched to one taken from the applicant Julian Taylor upon his arrest on 25 November 2015;
· on 13 February 1991, Steven Mark Bahntoff (having the same date of birth) was issued with a Victorian car licence 49088517;
· on 15 February 1991, the applicant was issued a Victorian car licence number 49094417 in the name Steven Robert Anderson;
· on 18 April 1991, Steven Robert Barr changed his name to David Stephen Sheehy;
· in 1994 and 1998, the applicant was convicted of indictable offences under the names Steven Robert Barr, Steven Robert Parker, Steven Robert Bahntoff, Steven Mark Bahntoff and Julian Mark Bahntoff;
· in 1998, the applicant enrolled at Deakin University and undertook studies between 1999 and 2002 in the name Julian Mark Bahntoff, that name being changed in the academic records to Julian Richard Taylor on 4 November 2005; and
· in 2004, the applicant, using the name Julian Mark Bahntoff, was introduced to Kahleda Barr, whom he married on 15 October 2004 — the marriage certificate bearing the name Steven Robert Barr — and, on 22 June 2005, under the name Julian Mark Bahntoff, was registered as the father of his daughter.
Further, by use of police photoboards, the applicant was identified as a teacher at relevant schools between 2005 and 2015; and a large number of VIT registration and application documents, and staff photographs taken while the applicant was employed at a number of schools, identified the applicant.
Arrest
In July 2015, VIT commenced an investigation into the applicant following a notification from a school overseas at which he had taught. That investigation revealed the applicant’s aliases and previously unknown criminal history. VIT cancelled the applicant’s teacher registration on 31 August 2015.
Police arrested the applicant almost two months later, on 25 November 2015. He gave his date of birth as 16 January 1965, but answered ‘no comment’ to questions investigating police put to him concerning the alleged offending.
The issues raised by the conviction application
The applicant’s grounds touching conviction were not drawn by a legal practitioner. As set out in the relevant Notice, they are as follows:[6]
[6]Spelling, grammar, syntax and punctuation as in original.
Statements made by the sentencing Judge … in the Sentencing Remarks discloses specific errors in describing the facts and the following conviction, resulting in a miscarriage of justice and wrongful conviction:
1. Ref: Charge 1
The Judge … failed to indicate to the jury that, for a conviction, the prosecution must show that the accused had a guilty mind at the time of the offending. That is, the prosecution must define and show that the mens rea of the case exists. As the prosecution failed to do so then the charge fails and His Honour’s error resulted in a wrongful conviction.
2. Ref: Charge 2
The Judge … failed to indicate to the jury that, for a conviction, the prosecution must show that the accused had a guilty mind at the time of the offending. That is, the prosecution must define and show that the mens rea of the case exists. As the prosecution failed to do so then the charge fails and His Honour’s error resulted in a wrongful conviction
3. Ref: Charge 3
The Judge … failed to indicate to the jury that, for a conviction, the prosecution must show that the accused had a guilty mind at the time of the offending. That is, the prosecution must define and show that the mens rea of the case exists. As the prosecution failed to do so then the charge fails and His Honour's error resulted in a wrongful conviction
4. Ref: Charge 7
The Judge … failed to indicate to the jury that, for a conviction, the prosecution must show that the accused had a guilty mind at the time of the offending. That is, the prosecution must define and show that the mens rea of the case exists. As the prosecution failed to do so then the charge fails and His Honour’s error resulted in a wrongful conviction
5. Ref: Charge 9
The Judge … failed to indicate to the jury that, for a conviction, the prosecution must show that the accused had a guilty mind at the time of the offending. That is, the prosecution must define and show that the mens rea of the case exists. As the prosecution failed to do so then the charge fails and His Honour's error resulted in a wrongful conviction
6. Ref: Charge 10
The Judge … failed to indicate to the jury that, for a conviction, the prosecution must show that the accused had a guilty mind at the time of the offending. That is, the prosecution must define and show that the mens rea of the case exists. As the prosecution failed to do so then the charge fails and His Honour's error resulted in a wrongful conviction
7. Ref: Charge 4
The Judge has stated in the Sentencing Remarks that membership of the Victorian Institute of Teaching does not confer a financial benefit and therefore charge four (4) is in error as the charge states that the accused obtained a financial benefit. Thus the charge fails and His Honour’s error resulted in a wrongful conviction.
8. Ref: Charge 8
The Judge has stated in the Sentencing remarks that membership of the Victorian Institute of Teaching does not confer a financial benefit and therefore charge eight (8) is in error as the charge states that the accused obtained a financial benefit. Thus the charge fails and His Honour’s error resulted in a wrongful conviction.
9. Ref: Charge 11
The Judge has stated in the Sentencing remarks that membership of the Victorian Institute of Teaching does not confer a financial benefit and therefore charge four (4) is in error as the charge states that the accused obtained a financial benefit. Thus the charge fails and His Honour’s error resulted in a wrongful conviction.
10. Ref: Charge 5
The Judge has stated in the Sentencing Remarks that employment does not bring any direct financial benefit and did not disclose any indirect financial benefit. The employment thus being of zero financial benefit. Therefore charge five (5) is in error as the charge states that the financial benefit obtained was a salary of $44,085.00. As a result charge five (5) fails and the charge cannot stand. His Honour's error resulted in a wrongful conviction.
11. Ref: Charge 6
The Judge has stated in the Sentencing Remarks that employment does not bring any direct financial benefit and did not disclose any indirect financial benefit. The employment thus being of zero financial benefit. Therefore charge six (6) is in error as the charge states that the financial benefit obtained was a salary of $64,441.00. As a result charge six (6) fails and the charge cannot stand. His Honour’s error resulted in a wrongful conviction.
12. Ref: Charge 12
The Judge has stated in the Sentencing Remarks that employment does not bring any direct financial benefit and did not disclose any indirect financial benefit. The employment thus being of zero financial benefit. Therefore charge twelve (12) is in error as the charge states that the financial benefit obtained was a salary of $75,132.00. As a result charge twelve (12) fails and the charge cannot stand. His Honour’s error resulted in a wrongful conviction.
13. Ref: Charge 13
The Judge has stated in the Sentencing Remarks that employment does not bring any direct financial benefit and did not disclose any indirect financial benefit. The employment thus being of zero financial benefit. Therefore charge thirteen (13) is in error as the charge states that the financial benefit obtained was a salary of $71,589.00. As a result charge thirteen (13) fails and the charge cannot stand. His Honour’s error resulted in a wrongful conviction.
Doing the best we can to capture the applicant’s complaints, we think that the following may be distilled from the grounds as formulated:
· First, grounds 1 to 6 — which relate to the charges of using a copy of a false document (charges 1, 3, 7 and 10); perjury (charge 2); and making, using or supplying identification information (charge 9) — claim that a miscarriage of justice was occasioned by the judge’s failure to direct the jury that the necessary intention (‘guilty mind’) and the alleged wrongful conduct must coincide.
· Secondly, grounds 7, 8 and 9 — which relate to three of the charges of obtaining a financial advantage by deception (charges 4, 8 and 11) — claim that there was no evidence to establish that the applicant obtained a financial advantage, since ‘membership of the Victorian Institute of Teaching does not confer a financial benefit’.
· Thirdly, grounds 10, 11, 12 and 13 — which relate to the other four charges of obtaining a financial advantage by deception (charges 5, 6, 12 and 13) — claim that there was no evidence to establish that the applicant obtained a financial advantage since ‘employment does not bring any direct financial benefit’, and no ‘indirect financial benefit’ was disclosed.
Additionally, in another document entitled ‘Reason for Appeal Against Conviction’, further possible grounds are to be found. Those ‘grounds’ allege that the trial judge has made a specific error:
1. … in presenting to the jury details of the [applicant’s] previous offending.
2. … in failing to direct the jury to consider the men rea [sic] of the case.
3. … in failing to adequately relaying [sic] the definition of financial advantage by deception to the jury and to correctly relate the definition to the facts of the case.
4. … in failing to send the matter to the Magistrate [sic] Court once it was established by [the trial judge] that there was no financial benefit (day 2 of the trial).
Consistently with the immediately preceding paragraph, counsel for the respondent very helpfully managed to identify three complaints as having been raised by the applicant’s documents:
· first, details of the applicant’s previous offending being heard by the jury — the previous offending complaint;
· secondly, error in the judge’s directions to the jury as to the relevant mens rea — the mens rea complaint; and
· thirdly, error by the judge in ‘relaying’ the definition of ‘financial advantage by deception’ and failing adequately to relate the definition to the facts — the definition of financial advantage complaint.
Given that the applicant is unrepresented by a legal practitioner, we think it to be convenient to consider the application for leave to appeal against conviction under the umbrella of the three complaints identified by the respondent’s counsel.
Conviction: The previous offending complaint
Although unrepresented in this Court, the applicant was represented by counsel at trial. His present complaint must be viewed in that light.
In the morning of the first day of the trial, counsel for the applicant opposed the prosecution’s ‘use of [the applicant’s] criminal record’. Counsel invoked s 137 of the Evidence Act 2008. Realistically, however, counsel conceded that the evidence was relevant and admissible, and that ‘the probative value is both present and is significant’. Counsel made it clear that his ‘submission really is simply one that there is an unfair prejudice [that] results from the use of the criminal record’. Discussion between the judge and counsel as to the admissibility of the applicant’s criminal record occupied the morning.
Commendably, defence counsel and the prosecutor strove during the luncheon adjournment to find a sensible compromise. They were successful in doing so. Thus, immediately upon the court resuming after lunch, the applicant’s counsel announced that he was not ‘continuing to oppose’ the prosecution’s use of the applicant’s criminal record, and will ‘concede or agree with the proposed manner in which [it] ought to be led’.
Ultimately, the prosecutor adduced evidence concerning the applicant’s criminal record from the informant, Detective Senior Constable Matthew Lindsay. He gave evidence that he received an investigation file in the applicant’s matter on 22 October 2015, and later spoke to Julian Taylor — who gave his date of birth as 16 January 1965 — on 25 November 2015. Detective Lindsay described checks that he made with the Law Enforcement Assistance Program (‘LEAP’) database — which is ‘the database on which police information is held, including criminal histories’ — and the police Master Name Index (which records known aliases). Julian Taylor had aliases Steven Robert Barr, Steven Robert Bahntoff, Steven Mark Bahntoff, Julian Mark Bahntoff and Steven Robert Parker, all with the same date of birth. He then gave the following uncontradicted evidence:
In relation to the specific criminal history, did you discover on LEAP that these aliases and names were associated with convictions for serious indictable offences?---Yes. Yes, they were.
But not of a sexual or violent nature?---That’s correct.
And both in 1994 and in 1998?---Yes, that’s right.
And those convictions were officially recorded against the name Steven Mark Bahntoff in 1994?---Yes.
And Julian Mark Bahntoff in 1998?---Yes, that’s correct.
As can be seen, the evidence concerning the applicant’s criminal record was led from the informant in a somewhat anodyne fashion, in conformity with the agreement reached between the prosecutor and defence counsel. The evidence established that the applicant — who used the names Steven Robert Barr, Steven Robert Bahntoff, Steven Mark Bahntoff, Julian Mark Bahntoff and Steven Robert Parker — had been convicted of serious indictable offences (of a non-sexual and non-violent nature); and specifically that, under the name Steven Mark Bahntoff and Julian Mark Bahntoff, he had been convicted in 1994 and 1998.
Notwithstanding the rather bland way in which the evidence of his criminal record was adduced, in his written case the applicant submitted that the trial judge
presented to the jury details of criminal offending from a matter twenty years earlier. This material was extremely prejudicial to the accused’s case and severely impacted on the jury’s ability to view the facts before the court in an impartial way.
His Honour erred in presenting these matters before the jury.
Thus the following conviction is unsafe and unsatisfactory, resulting in a miscarriage of justice and wrongful conviction.
In his oral submissions in this Court, the applicant largely recapitulated what he had submitted in writing, but made the additional submission that it had been revealed to the jury that he had been ‘incarcerated’ for the previous offending. When the members of the Court pointed out to him that nowhere did the transcript reveal that the prosecutor, defence counsel or judge had suggested that he had been incarcerated, the applicant submitted that the jury would have deduced as much from the use of the expression ‘serious indictable offences’.
Counsel for the respondent submitted in response that evidence of the applicant’s criminal history was properly admitted — it was an element of charge 2 (perjury); a particular of charges 4, 5, 8, 11 and 12 (obtaining a financial advantage by deception); and was the motive for charges 1, 3, 7, 9 and 10 (using a copy false document and making, using or supplying identification information). The criminal history also confirmed the different names the applicant had used over the years which were not disclosed to VIT.
As has been seen, the prosecution adduced evidence that the applicant had been convicted of ‘serious indictable offences’. Other than to say that the convictions were not for offences of a sexual or violent type, however, neither their precise nature, nor the penalties they attracted, was disclosed. Quite obviously, their nature — there were many dishonesty offences — was not disclosed in an endeavour to minimise the prejudicial effect of what was otherwise highly probative evidence.
Naturally, some curiosity as to the kind of offences of which the applicant had been convicted was provoked in the collective mind of the jury. Hence, in the course of the trial the jury asked a question about the applicant’s prior convictions, giving rise to the following directions by the trial judge:
I’ve got the question from the jury in these terms. ‘We are unsure if we’re allowed to have access to this information so seek clarification. What past crimes were committed by Mr Taylor and in which name? If we are not allowed this information, thank you, we understand and respect your decision.’
So you’ll be given documents at the end of the trial, which the prosecution hopes to prove connects various names to various convictions, but what the prosecution alleges in this case is that the accused Julian Taylor, has been convicted and sentenced in Victoria and interstate in respect of serious indictable criminal offences, not sexual or violent in nature and that predate the alleged commission of these present offences.
What they will hope to prove to you is that the accused man with the same birth date of 16 January 1965, was convicted of these serious indictable offences prior to these matters under the following names. In 1994, under the name of Steven Robert Parker. You'll be reminded of this later, but by all means make a note now. In 1998, under the name of Julian Mark Bahntoff and that the records, the criminal records, also show aliases of those two names with the same birthday of, first, Steven Mark Bahntoff, Steven Robert Barr and Steven Robert Bahntoff. They do not have a record of the aliases including Julian Taylor or a variation of Julian Taylor.
They will hope to prove to you that they’re the same people, that’s a matter of whether they do or not beyond reasonable doubt in due course. You’ll be reminded of these names and the evidence that is said to be relevant to it, is that clear enough for the moment?
Importantly, in his charge, the judge warned the jury not to misuse the evidence of the applicant’s prior convictions. He said:
… when I just take you to the charges, it is uncontradicted evidence in this case that the accused, prior to the allegations that make up these cases, has convictions for serious indictable offences, not including sexual matters and not including anything to do with violence. So we know that.
So once you are seized of that fact, you might think that this makes it look like the accused committed the offences charged. But I must direct you as a matter of law that there are all sorts of reasons why a person might behave in a way that looks like he has committed an offence. Even if you think that the fact of the convictions means that he is likely to be dishonest, you must not use that to conclude that he is guilty of any of the offences charged.
No exception was taken to these directions.
There can be no doubt that the fact that the applicant had previous convictions was highly relevant, and therefore admissible (subject to recognised exclusions).[7] As the respondent’s counsel pointed out, charge 2, perjury, alleged that the applicant
at Camberwell in Victoria on the 4th day of November 2005 made a statutory declaration which he knew to be false in that he declared that he had never been convicted or found guilty of any offences in any Australian State or Territory or in any other country whether the conviction had been recorded or not.
And a number of the charges of dishonestly obtaining a financial advantage by deception — charges 4, 5, 8, 11 and 12 — alleged as part of the relevant deception that the applicant had falsely represented either ’that he had never been convicted or found guilty of an indictable offence in any Australian State or Territory’ or ‘that he did not have a criminal history’.
[7]Evidence Act 2008, ss 55 and 56.
Further, as has been observed, counsel for the prosecution and defence at trial arrived at a sensible and pragmatic solution, which resulted in highly probative evidence being put before the jury in a way that minimised the prejudice flowing from the introduction of evidence disclosing the applicant’s criminal record. Their conduct — the applicant, of course, generally being bound by his counsel’s conduct of the trial — is beyond criticism.[8] In these circumstances, it cannot realistically be contended that the evidence should have been excluded on the basis that its probative value was outweighed by the risk of unfair prejudice.
[8]See, for example, R v Birks (1990) 19 NSWLR 677, 683, 684, 685 (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124, 134 [31] (Gaudron J), 147–8 [74], 148 [76]–[77], 149–50 [79]–[81] (McHugh J); Ali v The Queen (2005) 79 ALJR 662, 677 [99]–[100] (Callinan and Heydon JJ), 666 [23], 666–7 [25]–[26] (Hayne J); Nudd v The Queen (2006) 80 ALJR 614, 618–9 [7]–[9], 622 [20] (Gleeson CJ), 622 [24] (Gummow and Hayne JJ), 635 [100] (Kirby J), 645 [162] (Callinan and Heydon JJ).
Given that the impugned evidence was properly admitted, there can have been no miscarriage of justice occasioned by its introduction. The ‘previous offending complaint’ is thus without substance.
Conviction: The mens rea complaint
The applicant’s written case contained the following submissions, directed to the four charges of using a copy of a false document (charges 1, 3, 7 and 10), the charge of perjury (charge 2) and the charge of making, using or supplying identification information (charge 9):
Charges 1, 2, 3, 7, 9, 10 must fail since the prosecution failed to show that I exhibited a guilty mind at the time of offending. Therefore the resultant conviction is unsafe and unsatisfactory, resulting in a miscarriage of justice and wrongful conviction.
[The trial judge] failed to inform or direct the jury that an accused must have a guilty mind to be guilty of an offending.
These submissions must be rejected. In our view, scrutiny of the trial record amply demonstrates that the trial judge properly directed the jury on the necessary mental elements of the offences.
Charges 1, 3, 7 and 10, were laid under s 83A(4) of the Crimes Act 1958, which provides (so far as relevant):
(4) A person must not use a copy of a document which is, and which he or she knows to be, a false document, with the intention of inducing another person to accept it as a copy of a genuine document and by reason of so accepting it to do or not to do some act to that other person’s, or to another person’s prejudice.
When directing the jury on the elements of the charges on the indictment, the judge gave the jury a document entitled ‘Jury Checklist’. So far as charges 1, 3, 7 and 10 were concerned — ‘Use a Copy of a False Document’ — the checklist contained similar directions, moulded to suit each particular charge, formulated as a series of questions.[9] Taking charge 1 as an example, the checklist was in the following terms:
[9]See Criminal Procedure Act 2009, ss 223(1)(k) and (1A)(a); Jury Directions Act 2015, s 67(2).
Five elements the prosecution must prove beyond reasonable doubt:
1. The accused used a copy of a document; and
2. The document the accused used was false; and
3. The accused knew that he was using a false document; and
4. The accused used the document intending to deceive Deakin University into accepting the document as genuine; and
5. The accused intended that as a result of accepting the document as genuine, Deakin University would act in a way that prejudices it.
_____________________________________________________________________
Using a document
1. Did the accused use a copy of a document?
If yes, go to question 2
If no, then the accused is not guilty of using a false document
_____________________________________________________________________
False document
2. Was the document a false document?
Consider – A false document is one that purports to be a Victorian change of name registration dated 29 July 2003 and with registration number 70642/1965.
If yes, go to question 3
If no, then the accused is not guilty of using a false document
_____________________________________________________________________
Knew the document was false
3. Did the accused know that he was using a copy of a false document?
If yes, go to question 4
If no, then the accused is not guilty of using a false document
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Intention that document be accepted as genuine
4. Did the accused use the copy document intending to deceive Deakin University to accept it as a copy of a genuine document?
Consider – The accused may intend to use the copy document himself.
If yes, go to question 4
If no, then the accused is not guilty of using a false document
_____________________________________________________________________
Intention that to cause prejudice
5. Did the accused intend that Deakin University would, due to accepting the document as a copy of a genuine document, act to it’s [sic] prejudice?
Consider – Deakin University acts to it’s [sic] prejudice if it changed Julian Richard Taylor’s name on his university record.
Consider – The person the accused intended to be prejudiced may be the person deceived by the document or may be somebody else.
If yes, then the accused is guilty of using a false document
(as long as you answered yes to questions 1 to 4)
If no, then the accused is not guilty of using a false document
The judge also gave what we consider to be adequate oral directions as to the elements of the offence in charges 1, 3, 7 and 10 (including the mental element):[10]
[10]Emphasis added to this and following passages.
To prove this crime, the prosecution must prove the following five elements beyond reasonable doubt: (1) the accused used a copy of a document; ... It is said he has used it because it is in the business records, and the inference is he has given it to them, no one else. (2) That the document that the accused used was false, and I have taken you to those documents and showed you where the prosecution say that the evidence is in each instance that the document was false. (3) That the accused knew that he was using a false document; (4) that the accused used the document with the intention of deceiving a person to accept that it was genuine; and (5) that the accused intended that as a result of accepting the document as genuine, that person would act in a way that prejudices somebody, and the prejudice, as I have explained to you earlier, is the performance of a public duty in keeping a record of the registrations, that it is a prejudice to them to create a false record, if you like, or a record that was not deserved, and in that way it is said that they have acted to their prejudice by, in the case of the Victorian Institute of Teaching, the prejudice was the three, the granting of the three registrations, and in the case of Deakin University with Charge 1, changing the name from Julian Mark Bahntoff to Julian Richard Taylor, and that had the effect of disguising that Julian Mark Bahntoff had criminal convictions.
So the first element, the prosecution must prove that the accused used a copy of the document. Once again, it is in the business records, and the inference is he must have supplied to them, that they would not go out looking for it independently.
The second element the prosecution must prove is that the document used was false. It is not false merely because it contains untrue or incorrect information; to be false for the purposes of this offence the document must purport to have been, for example, in the use of the Tasmanian record of birth, to give identification information that was misleading or false and did not relate back to a person with the criminal convictions. And it is the evidence about the certificates, for example, comes from the registrar or from the lady, Ms Owen from the Tasmanian Births, Deaths and Marriages.
And the falsity of the name change from Bahntoff to Taylor in the first charge comes from Elizabeth Branday from the Victorian Births, Deaths and Marriages. She has told you why that is a false document.
What the prosecution must prove is that the document pretends to be something that it is not. In this case the prosecution argues that, for example, the change of name record is false because it is not a valid record as shown from the Births, Deaths and Marriages, which it purports to be. And equally, the Tasmanian record of birth in Charges 3, 7 and 10, is false for the reasons given by Ms Owen, and it contains false records relating to the accused.
The third element that the prosecution must prove when the accused used the copy of the document, so that is the change of name or the birth certificate, he knew that he was using a copy of a false document, and the inference is, because it does not comply with the form and because it has not been registered in their business records, he must have known that he was using a false document.
... Yes, the fourth element is that he used the document with the intention of deceiving a person to accept that it was genuine, and the prosecution says that that inference is well and truly open, and that there is no other reasonable inference.
And the fifth element is that the accused intended that a result of accepting the document as genuine, he would act in a way that the institution, Deakin in Charge 1 and Victorian Institute of Teaching in Charges 3, 7 and 10, would act to its prejudice in that they would fail to accurately carry out a public duty.
Charge 9 was laid under s 192B(1) of the Crimes Act 1958, which provides (so far as relevant):
(1) A person, who makes, uses or supplies identification information (that is not identification information that relates to that person), and—
(a) who is aware that, or aware that there is a substantial risk that, the information is identification information; and
(b) who intends to use or supply the information to commit an indictable offence, or to facilitate the commission of an indictable offence—
is guilty of an offence …
With respect to charge 9 — Making, Using or Supplying Identification Information — the Jury Checklist contained the following:
Four elements the prosecution must prove beyond reasonable doubt:
1. The accused made, used or supplied identification information; and
2. The identification information made, used or supplied was not related to the accused; and
3. The accused was aware that, or was aware that there was a substantial risk, that the information was identification information; and
4. The accused intended to use or supply the information to commit an indictable offence, or to facilitate the commission of an indictable offence.
_____________________________________________________________________
Identification Information
1. Did the accused make, use or supply identification information?
Consider – Identification information is information relating to a person that is capable of being used to identify or purportedly identify, the person (eg. name, address, date of birth, place of birth, driver’s license, credit card etc).
If yes, then go to 2
If no, then the accused is not guilty of making, using or supplying
identification information.
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Identification Information not related to the accused
2. Was the identification information made, used or supplied by the accused not identification information that related to him?
If yes, then go to 3.1
If no, then the accused is not guilty of making, using or
supplying identification information.
_____________________________________________________________________
Accused’s awareness
3.1 Was the accused aware that the information was identification information?
If yes, then go to 4.1
If no, then go to 3.2
3.2 Was the accused aware that there was a substantial risk, that, the information was identification information?
If yes, then go to 4.1
If no, then the accused is not guilty of making, using or
supplying identification information.
_____________________________________________________________________
Intend to commit an indictable offence or facilitate the commission of an indictable offence
4.1 Did the accused intended to use or supply the information to commit an indictable offence?
If yes, then the accused is guilty of making, using or supplying identification information (as long as you also answered yes to questions 1, 2 and 3)
If no, then go to 4.2
4.2 Did the accused intend to use or supply the information to facilitate the commission of an indictable offence?
If yes, then the accused is guilty of making, using or supplying identification information (as long as you also answered yes to
questions 1, 2 and 3)
If no, then the accused is not guilty of making, using or
supplying identification information.
In the course of his oral directions, the judge initially had only briefly touched on the elements of the offence in charge 9, prompting a juror to ask:
Sorry, Your Honour, sorry just for Charge 9, could you do element No.4 there? … Could you go over that, so the indictable offence, does it specifically have to be to the mutual recognition at VIT, or it could be --- [?]
As a result of the juror’s question — and having been urged by the prosecutor to do so — the judge gave the following further directions on the elements of making, using or supplying identification information, which we regard as adequate:
All right, perhaps Charge 9 first of all is, Julian Richard Taylor at 29 November 2011 used identification information not [being] identification information that related to him. He was aware that the information was identification information, namely a false document purporting to be a copy of a Tasmanian record of birth for Julian Richard Taylor, and intended to use that information to commit an indictable offence, namely obtaining a financial advantage by deception.
I think your question … is that the financial advantage by deception, the financial advantage, this dovetails into Charge 11, which is the mutual recognition registration, and if you have found, for example, that he intended to use this information to procure the mutual recognition registration but you did not think it was a financial advantage in the way that I have been explaining to you, well then Charge 9 would fail.
And the identification information, if you go to your checklist that I gave you for [Charge] 9, the elements that the prosecution must prove beyond reasonable doubt: (1) the accused … used or supplied identification information, and that is the birth certificate from Tasmania, all right? That contains information about a place of birth, et cetera. And the second element, that was not identification information that related to him. In other words, it is a false document. That is not him. And (3) the accused was aware that the information was identification information, in other words details and place of birth; and (4) he intended to use it or to supply that information to commit an indictable offence or to facilitate the commission of an indictable offence where the allegation here is, the indictable offence is obtaining the mutual recognition registration by deception so that unless that was a financial advantage in the way that has been explained to you, there is no issue here that the employment of the schools, the four schools, is a financial advantage. That has not been raised. But the registration has been raised, and it is said that it is a step, whereas the prosecution say it is a step along the way to obtaining a financial advantage, and it is a necessary step. So it becomes a matter for you.
Then when you look at the checklist, did he use it or supply? Well, it is in the records, and the inference is he must have, the prosecution says, known what else, they would not go looking for it without him supplying it, not identification information related to him. Well, the evidence is that the Tasmanian certificate is false. It is not even a proper certificate. And the information is capable of being used to identify someone. That is what a birth certificate is used for, to identify you.
Was the accused aware that the information was identification information? Well, it is a birth certificate. The inference is, when you obtain a birth certificate you know that it is for the purposes of identifying you.
Was he aware that there was a substantial risk that it was identification? Well, it either is or it is not, and there is no issue that it is identification information.
And then 3.1, the inference is that he intended to use it to get the registration, but was that a financial advantage in the way that I have described?
So far as charge 2, perjury, is concerned, the Jury Checklist correctly summarised the elements of perjury. Moreover, the judge gave the following oral directions, which we consider adequately directed the jury on the elements of perjury (including the relevant mental element):[11]
[11]Emphasis added.
The charge is that [in] a declaration on 4 November 2005, he made a statutory declaration which he knew to be false when he declared that he had never been convicted or found guilty of any offences in an Australian state. And that statutory declaration, as I think I have already told you, is in Exhibit K, p.5. And I read parts of it to you before, but if you have another look at it.
So once you read that [checklist] again, there are three elements that must be proved beyond reasonable doubt. (1) the accused made a false statement; (2) he made the false statement either under oath or on affirmation or in declaration in an affidavit; and (3) he knew that the statement was false, or did not believe that it was true.
So the first element, he made a statement which was false, and the false statement alleged here is that he has no prior convictions, as I read out to you earlier.
The second element the prosecution must prove beyond reasonable doubt is, he made the false statement under oath or affirmation or declaration, and that is on the face of the document where it says, ‘I acknowledge I will be liable for perjury’.
The third element relates to the state of mind the accused had when he made the statement. The prosecution must prove that the accused either knew that it was false, or he did not believe that it was true. And the prosecution says to you, he must have remembered that he had convictions for serious indictable offences. The element will not be met if the accused honestly but mistakenly believed the statement was true. Well, that has not been put in issue, you may think, in this case.
A person cannot be convicted of perjury simply because they made a mistake. For this element to be satisfied, the accused must have actually known that it was untrue to state that he had not been convicted of any offences, or at least not believed that was true.
So to summarise, to find him guilty of perjury, must prove to you beyond reasonable doubt (1) he made a false statement; (2) it was made under oath or affirmation; and (3) he knew that it was false or did not believe that it was true.
None of the directions concerning the elements of charges 1, 2, 3, 7, 9 and 10 provoked any exception by the applicant’s counsel, whether as to the mental elements of the offences or otherwise. That is not surprising since, as we have said, the directions were in the circumstances adequate. The effect of the directions is that, contrary to the applicant’s submissions, the judge did ‘inform or direct the jury that an accused must have a guilty mind to be guilty of an offending’.
Moreover, having considered for ourselves all of the evidence bearing on charges 1, 2, 3, 7, 9 and 10, in our view it plainly was open to the jury to be satisfied that the applicant ‘exhibited a guilty mind at the time of offending’. Indeed, we consider that a different finding would not have been consistent with the objective evidence. In our opinion, the submission that ‘the resultant conviction is unsafe and unsatisfactory, resulting in a miscarriage of justice and wrongful conviction’, is without substance. The prosecution’s case on these charges was extremely strong, if not overwhelming.
Conviction: The definition of financial advantage complaint
The applicant appeared principally to advance three contentions concerning the charges of obtaining financial advantage by deception:
· first, on charges 4, 8 and 11 — which relate to his gaining registration from VIT — there was no evidence to establish that the applicant relevantly obtained a financial advantage, since membership of VIT ‘does not confer a financial benefit’;
· secondly, on charges 5, 6, 12 and 13 — which relate respectively to his gaining employment with Ilim College, St Paul’s Anglican Grammar School, Hamilton and Alexandra College, and Traralgon College — there was no evidence to establish that the applicant obtained a financial advantage since ‘employment does not bring any direct financial benefit’, and no ‘indirect financial benefit’ was disclosed; and
· thirdly, the judge failed adequately to direct the jury on ‘the definition of financial advantage by deception to the jury and to correctly relate the definition to the facts of the case’.
Indeed, in his oral submissions, the applicant repeatedly contended — even after being invited by the Court not to do so, since the point had been grasped the first few times it had been made — that membership of VIT, and employment at the four colleges, could not be seen as conferring any financial advantage upon him.
In response to those contentions, counsel for the respondent in essence submitted:
· First, as to charges 4, 8 and 11, membership with VIT was not merely membership of that institution. Without registration, the applicant was ineligible to teach. Registration thus enabled the applicant to apply for paid teaching positions. The judge made so much clear to the jury.
· Secondly, as to charges 5, 6, 12 and 13, the evidence of each school was that registration with VIT, and a criminal record check revealing no criminal history, was a precondition of employment. Without those, the applicant could not have been employed. The judge correctly directed the jury that the relevant financial advantage was the applicant’s employment, based on improper VIT registration and a bogus criminal history.
· Thirdly, the judge expressly dealt with the definition of financial advantage separately to each charge. After a juror asked for further clarification, upon the prosecutor’s request the judge gave additional directions on the subject.
Section 82 of the Crimes Act 1958 relevantly provides:
82 Obtaining financial advantage by deception
(1) A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable ...
(2) For purposes of this section deception has the same meaning as in section 81.
By virtue of s 81(4)(a), deception ‘means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person’.
The expression financial advantage, however, is not defined for the purposes of s 82(1). But as was observed by Gray J in Matthews v Fountain,[12] the concept of ‘financial advantage’ is a simple one, ‘expressed by the use of two common words, each of clear meaning’, so that his Honour resisted ‘any temptation to elaborate upon them’. And as was pointed out by Nettle JA in Vasic,[13] ‘financial advantage’ was thought to have a wider meaning than the expression ‘pecuniary advantage’ occurring in the Theft Act 1968 (UK), that Act having provided the model for a number of Victorian provisions.[14]
[12]Matthews v Fountain [1982] VR 1045, 1049. See also R v Walsh (1990) 52 A Crim R 80, 81 (O’Bryan J).
[13]R v Vasic (2005) 11 VR 380 (‘Vasic’).
[14]Ibid [15]–[16] 385–6.
We consider that some guidance as to the import of the term may be derived from the observations of Miles CJ in Fisher v Bennett,[15] when his Honour said:[16]
I do not think that it is necessary to resort to dictionary definitions of the word ‘financial’ or the word ‘advantage’. I think that it is inescapable that an advantage involves a particular situation which is more beneficial to the person concerned than another relevant situation with which it is compared. A financial advantage involves a situation which from the financial aspect is more beneficial than another situation. When one speaks of obtaining a financial advantage by deception, there is imported in my view the notion of improving a financial situation by means of that deception.
[15]Fisher v Bennett (1987) 85 FLR 469.
[16]Ibid 472. See also R v Oettinger [2014] ACTSC 47, [72] (Murrell CJ).
Noting, as we do, the reluctance of Gray J to succumb to the temptation to elaborate upon the meaning of ‘financial advantage’, and acknowledging the dangers inherent in any attempt to reformulate the statutory language, we consider that a financial advantage occurs where a person is put in a favourable or superior economic, monetary or commercial position — a situation where the financial aspect is more beneficial than another — and would include a situation where a person is given the opportunity to earn remuneration in employment.[17]
[17]Compare the former s16(2)(c) of the Theft Act 1968 (UK), since repealed by the Fraud Act 2006 (UK), Schedule 3. See also David Lanham, Obtaining a Financial Advantage by Deception in Victoria — The Meaning of Financial Advantage (1977) 1 Crim LJ 188.
In the present case, it is clear that the applicant wanted to (and did) teach. He certainly knew that he could not teach without VIT registration. And he must certainly have known that registration (in each relevant situation embraced by charges 4, 8 and 11) would not have been given to him without a satisfactory criminal record check. Furthermore, although theoretically his criminal history might not have led to him automatically being disqualified from obtaining registration — a point that the applicant advanced with some vigour in his oral submissions — in our view it may readily be inferred that the applicant must have known that disclosure of his criminal record would almost certainly have presented an insurmountable obstacle in the way of obtaining VIT registration. His deception of VIT afforded him the financial advantage of being able to obtain employment as a teacher. Hence, the applicant’s assertion that there was no evidence to establish that he relevantly obtained a financial advantage, since membership of VIT ‘does not confer a financial benefit’, cannot be accepted.
Moreover, in the case of his employment by each of the colleges embraced by charges 5, 6, 12 and 13, the applicant certainly knew that he would not have been employed unless he had VIT registration and a valid CRC. Quite plainly, by relying on his improperly obtained VIT registration, and by putting forward a criminal history that did not disclose the true position, the applicant sought to obtain employment — and thereby salary, superannuation and other financial benefits — which he knew he would not have been able to secure had he revealed the truth. He deceived the Colleges in each case to obtain a financial benefit. The applicant’s further contention that there was no evidence to establish that the applicant obtained a financial advantage since ‘employment does not bring any direct financial benefit’, and no ‘indirect financial benefit’ was disclosed, is therefore without merit.
We also consider that there is no substance in the applicant’s contention that, the judge failed adequately to direct the jury on ‘the definition of financial advantage by deception to the jury and to correctly relate the definition to the facts of the case’.
As we have mentioned, the judge provided the jury with a Jury Checklist, containing for each charge on the indictment a series of questions. With respect to each charge of obtaining a financial advantage by deception (charges 4, 5, 6, 8, 11, 12 and 13), the first question the jury were asked to consider was:
Obtaining a Financial Advantage
1. Did the accused obtain a financial advantage?
If Yes, then go to 2
If No, then the accused is not guilty of Obtaining a Financial Advantage
by Deception
The Jury Checklist contained no further explanation of financial advantage.
As a result of a juror’s question, however, the judge gave some further oral directions in the course of his charge which touched upon charge 11.[18] Shortly afterward, there was the following unusual exchange, in which a juror interrupted the delivery of the charge:
JUROR: Yeah, sorry. I’m still not 100 per cent clear on financial advantage (indistinct).
HIS HONOUR: Yes.
JUROR: And it’s something probably you’d be wanting me to know. Just trying to figure out what it means, that’s all. Do you have a (indistinct words) or a dictionary definition or something we can refer back to?
HIS HONOUR: Yes.
JUROR: ‘Cause I think it’s going to be a contentious (indistinct).
[18]See [88] above.
In response to the juror’s question, the judge provided the following further directions:
Well, in the context of this case, it is the opportunity for employment. So it is that simple, and there is no issue in this case that the definition is satisfied by the employment with the four schools. That is a financial advantage, even though you might say, ‘Oh, well, he was a good teacher and he got paid for it’, and you might think, ‘Well, that's not a financial advantage’. Right?
The relevance of the wage and getting paid for it would be the extent of the financial advantage. So there is the obtaining of the job in the first place is the financial advantage. And for the purposes of the charge, that is sufficient. But the registration is a bit hairier, if I can use that word. The argument about that is, it is certainly capable of being a financial advantage, because you need registration, you need registration to be a teacher, to get the job.
And the prosecution would say to you, well then that is a substantial cause of getting the jobs. It is a substantial step, and it has caused him to obtain a financial advantage by getting that step, that registration.
The defence say to you, well it does not guarantee him, and you should not find in the circumstances here that it does amount to a financial advantage beyond reasonable doubt, because he has not yet obtained the employment, and you might find he would not have got it anyway. Registration does not guarantee you employment.
The prosecution says it does not have to guarantee you employment. It is an advantage to have that registration, in in the circumstances of this case the fact that he got employment fairly close to getting – whenever he got his registration he got the employment, so in the facts of this case the prosecution say the inference is that it is a financial advantage.
During a break in the charge, the prosecutor asked the judge to give some further directions on financial advantage. The judge did so (in the course of which, somewhat unusually, he was once more interrupted by a juror):
One of the gentlemen, I think the gentleman at the back, asked me about the financial advantage, what is a financial advantage, and I will have another little go at that.
In determining whether the accused obtained a financial advantage, you should give the words ‘financial advantage’ their plain meaning. They cover any type of financial advantage, including the opportunity for employment. This means that the first element will be met if you are satisfied that – I will just talk about registration for a moment. Three registrations, four employments. Just talking about registration.
The first element will be met if you are satisfied that by obtaining registration, that in itself became a financial advantage in that it gave him the opportunity for employment. And it is no issue in this case that it is a necessary step in the obtaining of employment, that is you have got to obtain registration to teach in these schools, but what is said by the defence is, you cannot be satisfied beyond reasonable doubt that it is other than just a step on the facts in this case, along the way, and he was not guaranteed it.
The prosecution say it is a necessary step, and the facts show that fairly proximate to getting the registration in time, he got the relevant employments. So it will be a matter for the – it is a jury question whether in all the circumstances, there is no doubt that the registration has given you the opportunity for employment, and it is a matter whether you are satisfied beyond a reasonable doubt in this case that the obtaining of those registrations was a financial advantage on the facts. Yes?
JUROR: So is there not gonna be a clear yes or no, definitively what – if it is or not? It’s up for us to decide?
HIS HONOUR: Yes, I think that is the final answer. A financial advantage is to be given its plain meaning, and it is a very broad meaning. And it includes, as a matter of law, the obtaining of employment. So if I perhaps illustrate it this way, I said to you before, there was no issue that the obtaining of employment is a financial advantage. To say more correctly, there is no issue that the fact of obtaining employment can be a financial advantage, because you have got a job? But the defence say it is still an element in the charge, it has got its plain meaning, and it is a matter for you on all the evidence to be satisfied on the facts that he got a financial advantage.
So I think that answers that, and what I will do, and you can come back to it if you like, I will just summarise the addresses. …
After retirement, the jury asked to be provided with the text of s 81 of the Crimes Act 1958, and also asked to be provided with a transcript of the final addresses of counsel and the charge. In response, the judge read the relevant parts of s 81 to the jury — he did not provide it in written form — and told the jury that it was not the ‘practice’ to provide juries with final addresses ‘because it is not evidence’. The judge also took the jury once more through the elements of the offence, and reminded them of where the evidence concerning the elements was to be found (telling the jury that if they could not find the evidence they could ‘by all means come back’). He also gave the jury further directions on the element of ‘financial advantage’ as follows:
Now, in the checklist you’ll see there that the three elements the prosecution must prove beyond reasonable doubt (1) the accused obtained a financial advantage, and hopefully you’ll remember the arguments and directions about what a financial advantage is, but in the sense with respect to the Victorian Institute of Teaching, it’s alleged that the provisional registration, the full registration and/or the mutual recognition registration are all financial advantages, in that they are a step along the way for an opportunity of a job. You’ve got to get that registration to get a job as a teacher, and a job as a teacher can be a financial advantage.
The defence say look, you shouldn’t be satisfied beyond reasonable doubt with respect to those three registrations, because it doesn’t guarantee you a job, it's just a step. And so therefore, not satisfied beyond reasonable doubt with respect to those. The prosecution says, well you can look at the fact that he got a job soon after, so it is sufficiently linked to a financial advantage.
Then you’ve got the four jobs, Ilim College, St Paul’s, Hamilton College, and Traralgon College. He obtained all of those four jobs, and the obtaining of a job can be a financial advantage.
A financial advantage, in determining whether the accused obtained a financial advantage, you should give the words ‘financial advantage’ their plan meaning. They cover any type of financial advantage, including, relevantly here, the obtaining of a job or the obtaining of employment. Because if you obtain employment, it’s a financial advantage to obtain it.
So what you do then, if you're looking at the seven financial advantage charges, you go to your checklist for each one of them, and then you go to, I would suggest – when I say ‘you do’, how you do it is your business. I’m suggesting to you a way that you might go about it. You can go to your jury checklist, and then you can go to Charge 4 and all the other charges, and see what it is that’s alleged as to the false representation …
These further directions provoked no exception from the applicant’s counsel.
We have set out the directions given by the judge on ‘financial advantage’ in some detail. Reading the directions as a whole, it is plain that the judge instructed the jury, first, that in determining whether the applicant obtained a ‘financial advantage’, the words should be given their plain meaning; secondly, the expression embraces ‘any type of financial advantage, including the opportunity for employment’; thirdly, securing VIT registration might be considered to be a financial advantage, as might securing employment with the four relevant colleges; and, fourthly, ‘it is a jury question’ whether, in all the circumstances, the obtaining of the VIT registrations, and the gaining of employment at the four colleges, was a financial advantage.
In our opinion, the judge was correct to direct the jury that the words ‘financial advantage’ were to be given their plain meaning. Moreover, the judge was correct to direct the jury that obtaining VIT registration, and obtaining employment with the colleges, could amount to obtaining a financial advantage, but that it was a matter for the jury to determine beyond reasonable doubt whether they considered in each relevant instance that they did. It is elementary that it was for the judge to determine whether, as a matter of law, the evidence was capable of establishing the element of ‘financial advantage’ with respect to each relevant charge; but that it was a matter for the jury to decide whether, on the evidence, they were satisfied in each case — applying the plain meaning of the words — that the applicant had obtained a financial advantage. Furthermore, we consider that the jury can have been left in no doubt as to the evidence relied upon in each case to establish whether the applicant had obtained a financial advantage.
At the risk of repetition, counsel for the applicant took no exception to the way in which the judge left the matter to the jury. He did not complain that the judge had failed adequately to marry his directions of law to the evidence, or that the judge had misdirected the jury on what could amount to a financial advantage. Significantly, he did not submit that the applicant had no case to answer on any charge, on the basis that the evidence was as a matter of law incapable of establishing that charge.
Finally, we would add this. Even were we of the view that the judge had erred in his directions concerning financial advantage, we would nevertheless refuse leave to appeal. In our opinion, the prosecution’s case on each charge of obtaining a financial advantage was so strong that conviction was inevitable. In those circumstances, the errors contended for by the applicant under cover of the ‘definition of financial advantage complaint’ — even if made out — could not have established that there had been a substantial miscarriage of justice.[19]
[19]See Criminal Procedure Act 2009, s 276. See also Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659, 676–8 [82]–[86].
Conviction: Failing to remit the case to the Magistrates’ Court
For the sake of completeness, we note that in the written case the applicant asserted that the trial judge erred ‘in failing to send the matter to the Magistrate [sic] Court once it was established by [the trial judge] that there was no financial benefit (day 2 of the trial)’. He made the same assertion in oral submissions. The complaint embodied in this assertion is, however, wholly devoid of merit.
The applicant had properly been committed to the County Court for trial. An indictment properly was filed in that court, and he was subject to that court’s jurisdiction. The applicant was properly tried. His counsel did not suggest at any stage that the trial judge should — or properly could — send the matter to the Magistrates’ Court. When pressed by this Court, the applicant could identify no enabling source of power permitting such a course. Indeed, the case that he cited in his written case (and orally) did not support the proposition that a trial judge had any power to transfer a case being tried on indictment to the Magistrates’ Court.[20] Hence, even assuming that it had been ‘established by [the trial judge] that there was no financial benefit’ — an assertion that we do not accept — there simply was no power reposing in the trial judge to stop the trial and send the case to the Magistrates’ Court.
[20]Lewis v The Queen [2011] NSWCCA 206.
The sentence application
Before entertaining any oral submissions concerning sentence, the Court advised the applicant that, having regard to the material that we had read, a number of the individual sentences, orders for cumulation (and concurrency), total effective sentence and non-parole period, at face value appeared to be very lenient, if not inadequate. The Court warned the applicant that, should the Court conclude that there is an error in the sentence first imposed, and that a different sentence should be imposed, he faced the real possibility that a more severe sentence may be imposed than that first imposed.[21]
[21]See Criminal Procedure Act 2009, ss 281(1) and (3).
Despite the warning, however, the applicant stated in unequivocal terms that he wished to proceed with his application for leave to appeal against his sentence, and he proceeded to make oral submissions with respect to it. We turn therefore to a consideration of the sentence imposed.
It is convenient to set out the impugned sentence in tabular form:
Charge Offence Sentence Cumulation 1 Using a copy of a false document 1 month 1 month 2 Perjury 3 months 1 month 3 Using a copy of a false document 1 month — 4 Obtaining financial advantage by deception 18 months Base 5 Obtaining financial advantage by deception 6 months 1 month 6 Obtaining financial advantage by deception 6 months 1 month 7 Using a copy of a false document 1 month — 8 Obtaining financial advantage by deception 18 months 6 months 9 Making, using or supplying identification information 1 month — 10 Using a copy of a false document 1 month — 11 Obtaining financial advantage by deception 18 months 6 months 12 Obtaining financial advantage by deception 6 months 1 month 13 Obtaining financial advantage by deception 2 months[22] — Total effective sentence: 2 years and 11 months’ imprisonment Non-parole period: 26 months Pre-sentence detention: 752 days Other orders: Forensic sample order [22]In his reasons for sentence, the judge announced orally that the sentence on charge 13 was six months’ imprisonment. The Record of Orders signed by the judge, however, records the sentence to be two months’ imprisonment. Given that the judge imposed sentences of six months’ imprisonment on each of charges 4, 6 and 12, it may be that the judge’s intention was to impose a sentence of six months on charge 13, but that, as a result of clerical error, the Record of Orders does not reflect that intention.
In our view, the sentence imposed certainly invites scrutiny, but not for the reasons advanced by the applicant. Thus, it will be noticed that each charge of using a false document (charges 1, 3, 7 and 10) attracted individual sentences of one month’s imprisonment, in circumstances where the maximum available sentence of imprisonment is 10 years. Even making due allowance for the moderating influence of the principles of proportionality and totality, these individual sentences strike us as being wholly inadequate. The same is true of the sentence of one month’s imprisonment on charge 9, making, using or supplying identification information, albeit that the available maximum penalty is five years’ imprisonment.
Similarly, we consider that the sentence of three months’ imprisonment for perjury, charge 2, is far too low. Not only is the seriousness of the offence to be gauged by its maximum penalty — 15 years’ imprisonment — but the applicant’s was a serious example of a serious offence, in that he falsely declared that information pivotal to securing VIT registration were true and correct.
We also consider that the sentences of six months’ imprisonment on each of charges 5, 6 and 12 (and two months’ imprisonment on charge 13, if that was the judge’s intention)[23] — which relate to the applicant’s employment at each of the four colleges — are wholly inadequate. They were sentences imposed after a trial, in circumstances where the maximum available penalty was 10 years’ imprisonment and the applicant has a substantial and relevant record of dishonesty offences.
[23]See n 21 above.
Furthermore, we consider that cumulation of a mere month of the sentences of imprisonment on charges 1, 2, 5, 6 and 12, and total concurrency of the sentences on charges 3, 7, 9 and 13, upon the base sentence (charge 4), cannot be justified.
In our opinion, proper exercise of the sentencing discretion should have led to significantly greater individual sentences being imposed on a number of charges, accompanied by significantly greater cumulation between sentences, thereby leading to a much longer total effective sentence and non-parole period.
Having made those observations, we turn to an examination of the applicant’s case in this Court.
The applicant’s ground of appeal asserts that statements made by the sentencing judge ‘discloses [sic] specific errors in describing the facts and evaluation of particular sentencing factors, leading to improper weight to be attributed to those sentencing factors, resulting in an excessive sentence’. Subjoined to the ground are 22 particulars, numbered i to xxii, which it is unnecessary to reproduce.
In the applicant’s written case, under the heading ‘Grounds’, the ground of appeal appears to have been further refined into three ‘items’ as follows:[24]
Item 1 of “Reasons for Sentence”
The sentence imposed was manifestly excessive in light of the sentencing Judge’s failure to have appropriate regard to evidence given to the court regarding the appellant’s personal mitigating factors.
Item 2 of “Reasons for Sentence”
The sentence imposed was manifestly excessive in light of the sentencing Judge’s failure to have appropriate regard to evidence given to the court regarding the juridical mitigating factors.
Item 3 of “Reasons for Sentence”
The sentence imposed was manifestly excessive in light of the sentencing Judge’s failure to have appropriate regard to the effect of the sentence on family, friends and the offender’s employer.
[24]Spelling, grammar, syntax and punctuation as in original.
In the applicant’s written case it was contended (among other things) that the sentencing judge gave insufficient weight as mitigating factors to:
· the applicant’s age;
· his prospects of rehabilitation;
· the adverse publicity, opprobrium and public humiliation, and the personal, social and family stress, suffered by the applicant;
· the additional burden that the threat of deportation posed for the applicant;
· the applicant’s reduced prospects of employment; and
· his poor health (including that he is asthmatic and had suffered a hip injury).
Further, the applicant contended that the sentencing judge had erred in that he:
· overstated the financial advantage gained by the applicant (thus giving that feature too much weight);
· gave too little weight to delay;
· gave insufficient weight to the applicant’s pre-trial bail conditions;
· gave too little weight to the fact that ‘there was no loss or damage’, and ignored the fact that there was no restitution necessary;
· ignored the onerous conditions of the applicant’s custody on remand;
· ignored the fact that the applicant’s charges could have been dealt with summarily;
· misapplied the principle of totality;
· ignored the collusion of the applicant’s wife in his offending; and
· gave insufficient weight to family hardship.
In his oral submissions, the applicant submitted that the sentencing judge had erred in his assessment of his prospects of rehabilitation. The applicant then made an impassioned plea — the Court extended great latitude to him given that he was unrepresented — in which he argued that he was ‘community minded’. He went on to describe in great detail the extraordinary work that he said that he had done with disadvantaged youth in Dallas and Broadmeadows, and with aboriginal youth in the Northern Territory. The applicant also submitted orally that the circumstances of his remand had been harsh (once more going into detail), and he argued that the judge had infringed the principle of totality.
The respondent’s counsel had submitted in writing that the individual sentences, orders for cumulation and total effective sentence imposed are all within the bounds of ‘sound discretionary judgement’. In the course of her oral submissions, the Court asked whether she maintained that submission. With perspicuous fairness — and notwithstanding the warning that we had given to the applicant — she said that she did.
Counsel for the respondent also submitted in writing that the applicant engaged in a prolonged and sustained course of criminal conduct over a period of almost 10 years. He falsified documents and repeatedly misrepresented himself to VIT and the four schools that ultimately employed him, the purpose of the misrepresentation being to conceal a criminal history which would have been an obstacle to registration and employment. The offending was sophisticated, planned and difficult to detect.
Although the applicant fulfilled his teaching obligations to a fair standard, so the respondent’s counsel submitted, the offending involved a breach of trust, and the applicant’s moral culpability was high. Thus, the applicant was entrusted with the care of students on the basis of false information that suggested he was a fit and proper person. He perjured himself so as to draw a salary as a teacher.
Each of the 13 charges, the respondent’s counsel submitted, involved separate criminality. Charges 1, 3, 7 and 10 were all separated in time, and, but for charges 3 and 7, related to different documents; charges 9 and 10 were closely related; charges 4, 8 and 11 related to different types of registration with VIT and were separated in time by years; and charges 5, 6, 12 and 13 related to employment at four different schools at different times.
Moreover, counsel submitted, the applicant has substantial and significant prior convictions, and has no remorse. His prospects of rehabilitation must be guarded given his prior history and the continuing failure to accept the wrongfulness of his actions. Specific deterrence was important, counsel submitted, given the applicant’s prior convictions and lack of remorse, and the judge gave appropriate weight to this, and to general deterrence, denunciation, just punishment and community protection. The principle of totality was not infringed.
Although the charges were capable of being determined in the Magistrates’ Court, counsel for the respondent pointed out that the applicant had not made an application for summary jurisdiction. The judge was not required to mitigate the sentence because the matter proceeded in the County Court. In any event, it cannot be assumed a Magistrate would have imposed a lesser sentence.
Counsel for the respondent submitted that the judge had given appropriate weight to delay. The applicant was arrested on 25 November 2015 and was sentenced on 18 September 2018. A trial had been listed for 13 February 2017, but was unable to proceed because the applicant was in the process of engaging new lawyers. The matter was again listed for trial on 23 October 2017, but was adjourned to the following day because a judge had not been allocated. The next day, 24 October 2017, the applicant’s counsel filed an amended defence response, causing the prosecution to seek further time. The trial was adjourned to 30 July 2018, and commenced on 31 July 2018.
The respondent’s counsel also submitted that:
· the applicant did not suggest that his age was a matter of significance in sentencing;
· there was no evidence that the applicant suffered any hardship, harm or injury in custody, or that he face onerous conditions;
· there was no evidence that the applicant wanted to return to teaching (as opposed to engineering);
· there was nothing to show that the applicant suffered any embarrassment as a result of the proceeding;
· there was no evidence that the applicant faced the threat of deportation.
In our view there is no substance in any of the submissions advanced by the applicant in support of his central contention that the sentence imposed upon him is manifestly excessive. If anything, as we have indicated, the sentence might be said to be excessively lenient, given the applicant’s planned and protracted offending, and his substantial prior convictions.
The applicant is aged 54 years. He commenced to amass his very significant prior convictions in 1991, when aged 26. They are set out in the following table:
Date and Court
Offence
Penalty
7 May 1991:
Melbourne Magistrates’
Obtaining property by deception (15 charges) Convicted and fined $150 on each charge 22 Feb 1994:
Brisbane District
False pretences, forgery (5 charges), uttering (5 charges), misappropriation of property (2 charges) and attempted false pretences On each charge 3 years and 6 months imprisonment wholly suspended for 3 years and 6 months. Compensation of $5,500 10 June 1992:
Melbourne County
Obtain financial advantage by deception
Obtain financial advantage by deception (4 charges)
Theft
Total effective sentence 8 months’ imprisonment; 4 months suspended for 4 months 24 June 1994:
Melbourne Magistrates’
Theft 3 months’ imprisonment, suspended for 12 months 6 Feb 1998:
Melbourne County
Defrauding the Commonwealth (27 charges) and attempting to defraud the commonwealth
Breaching a restraining order (2 charges)
Operate bank account in false name
Convicted and sentenced on each charge to 6 years’ imprisonment
Convicted and sentenced on each charge to 18 months’ imprisonment
Convicted and sentenced to 6 months’ imprisonment
Total effective sentence: 8 years
Non-parole period: 6 years
The applicant made an unsuccessful application to this Court for leave to appeal against the sentence imposed on him on 6 February 1998 under the name Julian Mark Bahntoff,[25] for what was essentially tax fraud. In a concurring judgment, Brooking JA remarked that
these offences were large-scale, highly planned and most ingenious. The applicant has shown the necessary formidable combination of intellectual power, criminal skills, diligent application and amorality to fit him to become the Professor Moriarty of Victorian crime.
[25]R v Bahntoff (Unreported, Court of Appeal, 14 May 1998, Brooking, Tadgell and Phillips JJA).
His history reveals that, whether he can fairly be said to possess the characteristics of Sherlock Holmes’ archenemy,[26] the applicant has been an enthusiastic — although not entirely successful — fraudster. He has displayed no remorse for the instant offending. And although the sentencing judge (somewhat generously) described his prospects of rehabilitation as ‘guarded’, we would assess them as being very poor. The applicant, it seems, has learned little from the sentences imposed upon him for past transgressions. Of course, he is not to be punished again for his past crimes, but the fact that he has not responded to previous sanctions bears directly on his moral culpability for the instant offending, his prospects of rehabilitation and the danger his recidivist tendencies present to the community, all of which emphasise the need for a sentence influenced by a significant measure of specific deterrence. The applicant needed to be punished and the community protected.
[26]See Sir Arthur Conan Doyle, The Adventure of the Final Problem (1893) and The Valley of Fear (1914).
It must be borne in mind that VIT exercises the essential statutory function of assessing the fitness of individuals to teach, so as to ensure that only those who are appropriately qualified — having suitable education and character — may teach children. The applicant’s conduct frustrated the exercise of VIT’s statutory function, and had the capacity to diminish the community’s confidence in the system of teacher regulation and the quality of the teaching profession. Further, the applicant presented himself to the four colleges at which he gained employment in effect as a person of good character. As a result of actively concealing his true character, the applicant breached their trust in a calculated and cynical fashion. It matters little, in our view, that the applicant’s teaching drew no criticism. Children simply would not have been given over to his care if he had revealed his true colours. In these circumstances, general deterrence and denunciation of the applicant’s conduct should also have been given primacy in the exercise of the sentencing discretion.
None of the applicant’s submissions in support of his claim that the sentence is manifestly excessive — whether they concern age, delay, humiliation, prospects of deportation, reduced prospects of future employment or other matter — has any substance. Indeed, had the respondent not accepted that the individual sentences, orders for cumulation and total effective sentence imposed are all within the bounds of sound discretionary judgement, we would have considered that a more severe sentence was warranted.[27]
[27]See Criminal Procedure Act 2009, ss 281 and 282(1)(a).
The application for leave to appeal against sentence must be refused.
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