Tringrove v Tasmania (No 2)

[2015] TASCCA 17

[2015] TASCCA 17

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Tringrove v Tasmania (No 2) [2015] TASCCA 17

PARTIES:  TRINGROVE, Denis Ross
  v
  STATE OF TASMANIA

FILE NO:  1271/2013
DELIVERED ON:  19 August 2015
DELIVERED AT:  Hobart
HEARING DATE:  19 August 2015
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing procedure – Other matters – Re-sentencing by Court of Criminal Appeal – Sentence of imprisonment cumulative with sentence subject to second appeal.

Aust Dig Criminal Law [3340]

REPRESENTATION:

Counsel:
           Appellant:  K Baumeler
           Respondent:  P Sherriff
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  Acting Director of Public Prosecutions

Judgment Number:  [2015] TASCCA 17
Number of paragraphs:  8

Serial No 17/2015

File No 1271/2013

DENIS ROSS TRINGROVE v STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
19 August 2015

Order of the Court

1. Appellant sentenced to one year's imprisonment, cumulative with the sentence he is currently serving.

1. That in the event of the appellant's current sentence being quashed on appeal, the commencement date of this sentence is to be 14 July 2014.

1. That the appellant not be eligible for parole until he has served six months of this sentence.

1. That the appellant pay Huon Aquaculture Group Pty Ltd $216,000 as compensation for its losses.

1. That the appellant pay his victims of crimes compensation levies amounting to $600 within 28 days after his release from prison.

Serial No 17/2015

File No 1271/2013

DENIS ROSS TRINGROVE v STATE OF TASMANIA (NO 2 )

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
19 August 2015

1. The appellant has been brought before the Court for re-sentencing on 12 charges of dishonestly acquiring a financial advantage.  Between Easter 2008 and November 2008, he charged a company named Huon Aquaculture Group Pty Ltd a total of $237,600 inclusive of GST for the cleaning of pens at a fish farm, but he had not done any of the work that he charged for.  He submitted 12 fraudulent invoices during that period and received full payment from the company.

2. The history of the proceedings can be summarised as follows:

   ·    During 2013 the appellant and another man were tried together on 44 charges, including the 12 charges mentioned. Those charges related to 44 fraudulent invoices and a period from December 2006 to November 2008.  Each invoice was submitted by the appellant to the company.  He charged $844,800 for cleaning 512 pens.  The eleventh invoice, for $19,800, remained unpaid because something went wrong with an electronic transfer of funds.  The two accused were therefore charged with 43 counts of dishonestly acquiring a financial advantage, and one charge of attempting to commit that crime. A jury found both men guilty on every charge. On 20 December 2013, Tennent J sentenced the appellant to four years' imprisonment, with a non-parole period of two years.

   ·    Both men appealed.  This Court allowed both appeals:  Tringrove v Tasmania [2014] TASCCA 7. In relation to this appellant, we quashed the convictions on counts 1 to 32 inclusive, quashed his sentence, ordered a new trial on counts 1 to 32 inclusive, and decided that he was to be re-sentenced on counts 33 to 44 inclusive. The re-sentencing was deferred until after the second trial. The appellant, who had been in custody since being sentenced on 20 December 2013, was granted bail by this Court on 5 December 2014.

   ·    The two men were re-tried together on counts 1 to 32 inclusive before Estcourt J.  Both men were found guilty on all those charges.  On 20 July 2015 Estcourt J sentenced this appellant to three years' imprisonment, with a non-parole period of 18 months. To allow for the time that the appellant had spent in custody, that sentence was backdated to 14 July 2014.

   ·    This appeal has been relisted so that this Court can re-sentence the appellant on the 12 charges in respect of which his convictions were not quashed, namely counts 33 to 44 inclusive. 

3. At the first trial, there was evidence that during a meeting at the offices of Huon Aquaculture on 19 December 2008, the appellant told the company's chief executive officer and its general manager that he had not done any work since Easter 2008.  When we determined the appeal, we concluded that the jury must have accepted that that admission was made, and must have been satisfied beyond reasonable doubt that the appellant did none of the work shown on the invoices that covered the period from Easter 2008 to November 2008.  We will therefore re-sentence him on that basis. 

4. The company may already have recovered the GST component of the amounts paid in respect of that period.  That component amounts to $21,600.  If that sum has not already been recovered, the company should have no difficulty recovering it.  The loss to the company as a result of the crimes for which the appellant must now be re-sentenced is $216,000 excluding the GST.

5. The appellant is 56 years old. He has some old convictions for offences of dishonesty but no other significant convictions. He is separated from his wife.  He has two adult children. He was a victim of abuse in State care as a child and received compensation as a result.  He was employed as a bus driver for almost five years before he first went to prison in 2013.  His health is not good.  This case should have been brought to trial a few years earlier than it was.  That is relevant as a mitigating factor, but it is certainly not a powerful one.

6. Because of the scale and duration of the appellant's fraudulent activities, the only appropriate penalty for these 12 charges is a significant sentence of imprisonment and suspension would be inappropriate. In my view the sentence of four years' imprisonment, with a non-parole period of two years, originally imposed by Tennent J was appropriate for the whole of the appellant's offending. I therefore consider it appropriate to impose a sentence on counts 33 to 44 that would, in effect, restore the punishment that her Honour imposed. I see no reason to take a course that is either harsher or more lenient. Since the appellant has been sentenced on counts 1 to 32 to three years' imprisonment with a non-parole period of 18 months, and is now serving that sentence, I would impose a cumulative sentence of one year's imprisonment, with a non-parole period of six months with a proviso that, in the event of the appellant's current sentence being quashed on appeal, the commencement date of the sentence imposed today is to be 14 July 2014. I would order the appellant to pay Huon Aquaculture Group Pty Ltd the sum of $216,000 pursuant to s 68 of the Sentencing Act 1997, and would order him to pay his victims of crime compensation levies on counts 33 to 44, amounting to $600, within 28 days after his release from prison.

File No 1271/2013

DENIS ROSS TRINGROVE v STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
19 August 2015

1. I agree with the reasons of Blow CJ and the orders he proposes.

File No 1271/2013

DENIS ROSS TRINGROVE v STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
19 August 2015

1. I also agree with the Chief Justice.