Alan Paterson v Geoffrey Charles Arthur Fenwick [1994] ACTSC 25 (18 March 1994)

SUPREME COURT OF THE ACT

ALAN PATERSON v. GEOFFREY CHARLES ARTHUR FENWICK
No. SCA51 of 1993
Number of pages - 11
Criminal Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Appeal - Magistrates Court Act 1930 (ACT), s.219B(1)(g) - prosecution appeal against sentence - whether Crimes Act 1914 (Cth), s.19B properly applied - relevant test considered - whether in any case invocation of s.19B resulted in manifest inadequacy.

Sentence - Crimes Act 1914 (Cth), s.19B - discharge of offender without proceeding to conviction - considerations supporting invocation of s.19B - considerations supporting expediency of invoking s.19B.

Magistrates Court Act 1930 (ACT), s.219B(1)(g)

Crimes Act 1914 (Cth), ss.19B, 29D

Crimes Act 1900 (NSW), s.556A

Motor Traffic Act 1909 (NSW)

Knight v Birch [1992] ACTSC 21; (1992) 106 ACTR 27; 106 FLR 109

R v Tait and Bartley (1979) 24 ALR 473; 46 FLR 386

Re Stubbs (1947) 47 SR(NSW) 329

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Lanham v Brake (1983) 74 FLR 284

Hayes v Weller (No. 2) (1988) 50 SASR 182; 93 FLR 64

R v Bird [1988] NTSC 22; (1988) 56 NTR 17

HEARING

CANBERRA, 1 February 1994
18:3:1994

Counsel for the Appellant: Mr G Lalor

Instructing solicitors: Director of Public Prosecutions

Counsel for the Respondent: Mr J Brewster

Instructing solicitors: Phillips Fox

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed.

DECISION

HIGGINS J This is an appeal by way of order to review pursuant to s.219B(1)(g) of the Magistrates Court Act 1930 (ACT). It is, in effect, a prosecution appeal against the alleged inadequacy of the sentence imposed upon the respondent in the Magistrates Court. The appellant is the informant police officer.

2. Mr Lalor, for the appellant, agreed that the principles adopted by Miles CJ in Knight v Birch [1992] ACTSC 21; (1992) 106 ACTR 27 were apt for this appeal. His Honour there decided that a prosecution appeal, by way of order to review alleging inadequacy of sentence, should be regarded as if it was a Crown appeal against sentence (see R v Tait and Bartley (1979) 24 ALR 473). Accordingly, this Court must be satisfied that there was some relevant error of principle before interfering. The lower court's findings of fact and exercise of discretion are binding unless one, or other, or both, is or are plainly wrong. Even if error is made out, the court will exercise great caution before increasing the effective sentence appealed from. It will keep any increase to an absolute minimum, bearing in mind that any increase imposes a form of double jeopardy.

The facts:
3. The conduct for which the respondent was sentenced was not disputed. As at January 1990, the respondent was a level 8 public servant employed by the CSIRO. His place of employment was at Campbell, in the Australian Capital Territory. He was issued with a cabcharge facility by the CSIRO to use for taxi-cab travel for official purposes.

4. It was alleged that the respondent used cabcharge facilities on 515 occasions between 1 January 1990 and 23 May 1991 for travel that was not officially approved. The total cost of such travel was $8,135.84. The respondent pleaded guilty to a charge laid pursuant to s.29D of the Crimes Act 1914 (Cth), that by so using cabcharge facilities he had defrauded CSIRO, a public authority under the Commonwealth.

There were three categories of unauthorised travel:-
1. Travel to and from CSIRO to perform additional work for CSIRO outside
normal office hours both at night and at weekends.
5. It should be noted that at all relevant times, the respondent suffered from an eye condition which prevented him from driving. Bus travel from his home to his place of work was so indirect that three buses would have been required to enable him to travel between those locations.

6. However compelling those circumstances, the agreed facts disclose that CSIRO's Terms and Conditions of Employment did not automatically entitle an employee to use the cabcharge facility to enable him or her to perform out of hours duty.

7. Individual approval might, however, be given for the use of cabcharge for that purpose.

8. There seems little doubt that the respondent could have applied prospectively for approval of the use by him of cabcharge vouchers. He did not make such an application. An application for retrospective approval was refused. It was, however, accepted by the Prosecution that the respondent used the cabcharge vouchers in this category for the purpose of performing work for CSIRO which he was properly required to perform.

9. The learned Magistrate was not told why the approval in question was refused. There was no indication as to whether, had the respondent been able to use his own vehicle, he would have received a mileage allowance. His Worship would have been justified in concluding that CSIRO had gained the benefit of the respondent's additional labour but had been spared the cost of his travel to attend at his place of work.

10. Certainly, his Worship could not have concluded that the expenditure was incurred for any private purpose of the respondent. It was, however, unauthorised and the respondent conceded that he knew that.

2. Travel to and from places of treatment for a compensable medical

condition.
11. In December 1988 the respondent had submitted a claim to Comcare. It referred to a stress related disorder occurring at work. For Comcare to accept the claim it must have accepted that the disorder was work-related. The respondent lost considerable time from work and he was hospitalised. He returned to work part-time in mid-1989. Comcare ceased active involvement in relation to his claim on 20 December 1989.

12. His Worship was informed that Comcare had an agreement with client agencies, including CSIRO, that the cost of travel to and from medical practitioners for the purposes of a claim, would be split equally between Comcare and the employing agency. Thus for purposes related to a Comcare claim, the respondent could lawfully use cabcharge for necessary travel. Half the costs so identified would be reimbursed by Comcare to CSIRO. Between 21 July 1989 and 21 August 1989, approximately $500.00 had in fact been approved for this purpose.

13. The expenses in this category were, it was accepted, for travel to and from medical treatment. The respondent considered that these expenses were in connection with either the already accepted work related condition or some different, but still compensable condition.

14. However, the respondent made no claim for the expenses, including travel, for those conditions. He was aware that prior approval was required.

15. It is relevant to note that the respondent and his wife separated in January 1991. Subsequently the respondent formed a relationship with a woman who lived at Chapman in the Australian Capital Territory.

16. Some of the travel had, as a point of destination or pick-up, the residence at Chapman of the woman mentioned above. However, that fact would not have altered the respondent's entitlement to use the cabcharge facility. If he had obtained approval to use cabcharge for this purpose, a temporary change of address would not have changed the character of the expenditure.

17. It would have been open to his Worship to have concluded that this category of travel had the work-related purpose claimed for it by the respondent. It was also open to him to conclude, from the respondent's lack of action to press a claim against Comcare, that it was for private medical treatment purposes.

18. It is clear that his Worship, having heard and seen the respondent give evidence before him, adopted the more benign of those hypotheses.

19. It was open to him so to do.

3. Travel, which the respondent believed to have been work or medical

related, but where that purpose was not apparent on the face of the cabcharge vouchers.
20. On the face of it, this travel seemed to have been for private purposes. The trips in question were, in any event, unauthorised. The respondent conceded that he had failed properly to record the purpose of the travel in question, but he did not concede that it was for private purposes. It was not found by his Worship that the respondent's assertion had been untruthful.

21. On 11 October 1991, the respondent paid to CSIRO $9,103.35 in reimbursement of the cost of unauthorised travel as it was then claimed to be. Since then CSIRO has acknowledged the cost of apparently unauthorised travel to be less than that by $967.51. There is no information before me as to whether CSIRO has refunded, or proposes to refund, the overpayment of $967.51.

22. His Worship was entitled to conclude that the respondent had no consciousness of the true sum he owed CSIRO and was so concerned to make reparation for his unauthorised use of cabcharge vouchers that he would pay whatever CSIRO demanded even if he did not, in fact, owe it.

23. Following repayment of the sum then claimed by CSIRO, the police became involved. The respondent was interviewed on 13 March 1992. The record of that interview was not before his Worship but some parts of it were summarised in the Statement of Facts.

24. The references to it were in the following terms,

"When interviewed by the Australian Federal Police on 13 March 1992
he advised that he suffered a hypertensive illness requiring
medication including drug treatment with much treatment being
undertaken at Woden Valley Hospital. He could not however provide
any details as to the doctors who had administered the treatment
or the dates it was administered.
(He further advised) that Comcare had agreed to accept liability
for travel related to his claim after 20 December 1989. Later on
in his interview he stated that he intended to submit a further
claim in relation to his travel costs but then decided not to.
Accordingly in retrospect he said the cabcharge with the purposes
of attending medical treatment he admitted was unauthorised."

25. Of course, it was open to his Worship to have disbelieved those assertions. Equally, he could also have accepted them at face value, notwithstanding the apparently sceptical tone of the summary. The statements are equivocal. The respondent did not admit in evidence that the statements made by him in relation to his use of cabcharge were false in any material particular. Indeed, when he gave evidence he was not asked any such question by the prosecutor.

26. It was open to his Worship to have concluded that each of the 515 unauthorised taxi trips had been capable of being authorised by CSIRO, being work or compensation related. He could have concluded that, in any event, the respondent had believed that each of the 515 trips in question bore that character.

27. That belief would not necessarily have exculpated the respondent. He was well aware of the proper processes for obtaining approval and had neglected to do so. However, such a belief would have significantly reduced his culpability.

28. The matter came before Mr Dainer, Magistrate, on 27 April 1993.

29. The prosecutor presented the charge of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (Cth). The alleged value of cabcharge vouchers involved was amended from $9,103.35 to $8,135.84. The Statement of Facts was tendered. It was asserted by the prosecutor that there were no matters otherwise adverse to the respondent known to the prosecution. As already noted, the respondent pleaded guilty.

30. The respondent gave evidence. He told the court that he was 45 years of age and had been employed by CSIRO since 12 August 1968. He did not drive a motor vehicle by reason of his physical disabilities. He agreed the travel claims referred to in the charge had been "unauthorised" and that he knew that at the time he incurred them. He was asked why he did that. He said,

"I have searched my mind many times over, I really cannot come down
on any single determinate there. The only thing I concluded in my
mind at the time, there are four major issues. I'd been ill. My
sister was quite ill and she eventually died and it was troubling to
me - she was in Brisbane. My marriage was breaking up and we were
in exceptionally heavy work loads and they're the only factors that
I can come back to but I'm not saying in any way that there are any
single factor. I simply cannot explain."

31. He agreed that he "had been" under the care of a psychologist and said that he was likely to be dismissed as a result of disciplinary proceedings which had been commenced against him. He believed that would result in loss of entitlement to employer contribution to his superannuation. He foresaw difficulty in gaining outside employment if he was dismissed as he expected to be. He described himself as being now ashamed of what he had done, disappointed in himself and "quite humbled". It was, he said, a "painful" lesson.

32. In cross-examination, the apparently varying states of possible culpability in respect of, and perhaps within, the categories of unauthorised cabcharge voucher use, were not explored.

33. The only matter which was clarified, was that the respondent was not claiming to have been under active treatment for stress during the period over which the alleged offence was committed.

34. Before me, Mr Lalor, for the appellant, submitted that the respondent's answers were inconsistent. Looked at in context, I do not think that can be fairly said. It seems to me that the respondent was placing his conduct in a context where he had suffered from a stress related illness and only recently recovered from it when the cabcharge abuse commenced. It could be interpreted as a claim by the respondent that his failure to seek prior approval for that expenditure was to some extent attributable to that history.

35. Three written character references in respect of the respondent were tendered without objection.

36. Those references described the respondent as "conscientious, diligent and hard working". He had positively contributed valuable voluntary work to community organisations over a significant number of years.

37. It would have been open to his Worship to have concluded that the respondent not only had no prior criminal history, but that he had positively virtuous antecedents. Given the other circumstances, it was open to his Worship to conclude that the offence, though involving many separate acts over 15 months, was out of character and not the result of a selfish desire for personal gain.

38. His Worship expressed his conclusion as follows,

"The charge is a serious one and involves an allegation of fraud
against a Commonwealth authority that is the CSIRO and there are
substantial penalties in the Crimes Act. On the other hand the
defendant is a person of good character and bearing in mind the
contents of the character references which were handed up, he has
contributed substantially to the community through his association
with the P and C and the Girl Guides and helping on a voluntary
basis over a number of years and obviously highly regarded in the
community by the people who have written these references. I also
take into account the fact that he has pleaded guilty and has
therefore saved the community the expense of a trial. Further I take
into the account the money he defrauded the organisation of and the
fact he made the reimbursement before the police became involved. So
it wasn't a case of him paying the money to make it easier at the
Court level. Finally, I take into account the fact that whatever I
decide to do today may not completely close the door on this matter
and that the defendant may face an additional penalty of a pecuniary
nature. He has given sworn evidence which hasn't been contradicted
that there is a high likelihood of disciplinary action which could
result in him receiving no pension if his services were terminated
by CSIRO and so that is another factor which I should turn my mind
to. Having regard to those matters whilst I do regard the matter,
as serious the other factors to which I referred would justify me
applying the provisions of Section 19 of the Commonwealth Crimes Act
and accordingly under Section 19 the defendant will be placed on a
bond to be of good behaviour for a period of twelve months from this
date. That bond will be in his own surety $5,000.00."

39. Mr Lalor based his attack on his Worship's decision on two grounds. Firstly, he contended, his Worship had taken irrelevant considerations into account in deciding that it was appropriate to apply the provisions of s.19B of the Crimes Act 1914 (Cth). Secondly, he submitted that the penalty imposed was manifestly inadequate.

Application of s.19B
40. Section 19B(1) provides for the dismissal of a charge either absolutely or conditionally notwithstanding that it is found to be proved.

41. It provides as follows,

"(1) Where:
(b) the court is satisfied, in respect of the charge or more than
one of the charges, that the charge is proved, but is of the
opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of
the person;
(ii) the extent (if any) to which the offence is of a trivial
nature; or
(iii)the extent (if any) to which the offence was committed
under extenuating circumstances,
That it is inexpedient to inflict any punishment, or to inflict
any punishment other than a nominal punishment, or that it is
expedient to release the offender on probation,
the court may, by order:
(d) discharge the person, without proceeding to conviction ... upon
his giving security ... by recognisance ... that he will comply
with the following conditions:"

42. Mr Lalor contended that whilst the previous good character and conduct of the respondent was relevant to the application of s.19B, other factors apparently taken into account were not. The plea of guilty and reimbursement of moneys wrongfully expended by CSIRO could, he conceded, reflect favourably the respondent's character. However, he submitted, the likelihood of future disciplinary action was irrelevant.

43. The case of Re Stubbs (1947) 47 SR(NSW) 329 was referred to by Mr Lalor. That case involved s.556A of the Crimes Act 1900 (NSW). The terms of that section are indistinguishable from those of s.19B. In that case, Davidson J noted that s.556A could be applied to offences under the Motor Traffic Act 1909 (NSW), including driving under the influence. His Honour held that the matters referred to as justifying the application of the section are alternative, not cumulative. The fact that the legislature has prescribed a compulsory minimum penalty on conviction is relevant to the question whether the section should be applied. The effect of a conviction on the offender's livelihood is not part of an offender's "antecedents" or any other consideration referred to in s.556A. However, it is important to note, as did Street J in Re Stubbs, that the weight to be accorded the various factors found to favour the application of the section is "essentially a matter for the discretion of the tribunal considering the case" (supra at 340).

44. A similar case came before the High Court in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257. The Court doubted that the need of the defendant to care for his elderly sister was a factor relevant to "character" or "antecedents". Their Honours (Barwick CJ, Kitto and Owen JJ), however, noted that the advanced age of the defendant was clearly relevant. It warranted the possible application of the section. The next question was whether it was "expedient" to apply it.

45. Their Honours said,

(265) "The expedience which the magistrate is required to consider
is not limited to the age itself, although age is one of the factors
which give rise to the question whether it is expedient in all the
circumstances to exercise the powers given by the sub-section. In
our opinion, the magistrate was entitled to consider whether, having
regard to the age of the appellant in the circumstances which
included the penalties which he had resolved to impose on the other
charges ... it was expedient to take the course described ..."

46. In the same case Windeyer J noted that the power to dismiss following a finding of guilt enabled the strict consequences which might follow conviction to be avoided in the exercise of a discretion to extend leniency.

47. His Honour was of the view that,

(276) "... the magistrate must be of opinion that the exercise of
the power is expedient because of the presence and effect of one or
more of the stated conditions, namely character, antecedents, age,
health or mental condition ... None of the matters they connote is
necessarily to be regarded in isolation from the others, or apart
from the whole of the circumstances of the offender and the offence."

48. Whilst his Honour doubted whether the effect on the offender's capacity to care for his elder sister went beyond the expediency or otherwise of imposing a gaol sentence, the fact that he was living with and caring for his sister was relevant to his "antecedents" and "character".

49. I observe that Justice Windeyer's analysis of the operation of the section differed from that of the majority. The majority felt that the future impact of a conviction was relevant to assist in determining whether or not it was "expedient" to apply the section after it was determined that the case was one to which one or more of the statutory criteria applied. I am, of course, bound by the majority opinion.

50. Cox J stated the relevant test in Lanham v Brake (1983) 74 FLR 284,

(288) "Before a court may exercise the powers conferred by s.19B it
must be satisfied that the charge is proved, find that one or more of
the par.(b) matters has a relevant operation, and then decide that
such matter or matters can reasonably support the exercise of the
statutory discretion."

51. In determining whether the matters referred to "reasonably support" the exercise of the discretion to apply s.19B, it is relevant to ask whether the matter or matters so relied upon make the matter relatively atypical. The nature and degree of seriousness of the offence are also relevant. In the context of quarantine offences Cox J made the following observation,

(292) "... the relevant considerations will include the seriousness
of the offence, its prevalence, the obvious difficulty of detecting
breaches under disembarking conditions in which it is quite
impracticable to examine the luggage of every passenger, and the
consequent need to impose penalties for typical breaches that will
make people think twice before trying to slip their small packages of
fruit or cooked meat or vegetable seeds through the random Customs
check. It is also an important consideration that these offences are
commonly committed by persons who are of generally good character."

52. There was also a successful appeal against an exercise of discretion under s.19B in Hayes v Weller (No. 2) (1988) 50 SASR 182. The respondent, in that case, had, by a "serious, deliberate and systematic fraud" avoided customs duty to the extent of $23,000.00. The trial judge had been concerned to avoid the imposition of penalty duty on the respondent. On appeal, Perry J conceded that, because the respondent had no prior convictions, it was arguably possible to apply s.19B. However, the apparent severity of the penalties which thus would be avoided was not, in his Honour's view, sufficient to make it expedient to apply s.19B. The effect of the penalty on the respondent was not, however, irrelevant to the question whether it was "expedient" to apply s.19B. It simply could not be said, in his Honour's view, that those matters combined to take the case in question so far out of the typical offence of the kind being considered as to justify invoking s.19B.

53. Of course, in this case, his Worship did not distinguish expressly between those considerations which supported the possible invocation of s.19B and those which were relevant only to support the expediency of doing so. However, Mr Dainer was an experienced Magistrate well accustomed to the application of s.19B and its analogue under the Crimes Act 1900. All factors taken into account were, it was conceded, relevant to the sentencing process generally. They were all relevant to the question as to whether it was "expedient" to apply s.19B although only some were relevant to whether the section might lawfully be invoked.

54. In a case involving fraud, previous good character and antecedent good conduct of an accused are particularly weighty factors and may well support the invocation of s.19B.

55. It seems to me that no error has been demonstrated as to the way in which the various matters enumerated by his Worship were taken into account in deciding that the invocation of s.19B was justified.

Did the invocation of s.19B result in manifest adequacy?
56. Even if there was no apparent error on the face of his Worship's reasons for sentence, Mr Lalor submitted that the invocation of s.19B resulted in a sentence that was manifestly inadequate.

57. I was referred by Mr Lalor to R v Bird [1988] NTSC 22; (1988) 56 NTR 17. As Mr Lalor expressly conceded, that case concerned a much greater fraud than the present. The Northern Territory Court of Criminal Appeal in that case held that it was reasonable to have regard to the range of sentences imposed in similar circumstances elsewhere in Australia.

58. An examination of comparable cases demonstrates that a wide range of penalties have been imposed. Some offenders have attracted custodial sentences partially served. Most offenders have attracted the sanction of conviction with an appropriate recognisance to be of good behaviour. It has to be concluded, I think, that the learned Magistrate's disposition of the matter was unusually lenient. The leniency was in conditionally recording no conviction. It was not submitted that the terms of the recognisance were inappropriate. Indeed, Mr Lalor expressly declined to submit that an immediate custodial sentence was required.

59. The case, as presented before the learned Magistrate had some unusual features. The likely consequence of dismissal following a substantial fraud on an employer was, though relevant, not unusual. What was unusual, was the positive contribution the respondent had made to the community. Certainly, the mere absence of prior criminal history, though again relevant to leniency, would not be so unusual as to warrant the exceptionally lenient course taken. The apparently unrefunded overpayment was unusual though not of itself compelling. The extenuating circumstances were, however, unusual. There was also no clear evidence as to the degree of culpability exhibited by the respondent's conduct. That of itself was somewhat extraordinary. His Worship was left to form his own conclusion as to that most significant aspect of the matter.

60. It was apparent that an unspecified number of the cabcharge journeys in question were undertaken for employment purposes. They could have been approved but were not. The omission to seek approval was culpable, but clearly less so than the use of cabcharge vouchers for private purposes. It was not established that the respondent had formed an intention to conceal the nature of his cabcharge use with a view to avoiding reimbursement. It could have been regarded as a case of culpable neglect rather than a desire to deceive CSIRO.

61. The respondent, by his plea of guilty, has conceded that his use of the cabcharge vouchers was fraudulent. Those usages, nevertheless, could have been considered to have had a connection with his employment or with a compensable condition. It was possible for him to have obtained approval for those usages. The culpability of the respondent for those usages is much less than if he had used cabcharge for private purposes. The statement of facts did not identify any usages of cabcharge vouchers in that latter category. That is not to say there were no such usages. Indeed, as I have noted, his Worship could have taken a contrary view. He does not seem to have done so.

62. Defrauding the Commonwealth or a public authority under the Commonwealth may embrace a wide variety of conduct and culpability. It seems to me that his Worship could have viewed this respondent's culpability as being at the lowest level possible. Not many frauds are perpetrated for the benefit of the employer complaining of the fraud. It was open to his Worship to form a favourable view of the respondent personally and, in all the circumstances, to decide that it was "expedient" not to record a conviction.

63. I raised in argument a question whether the 515 usages of cabcharge vouchers could be "rolled up" into one charge of "defrauding" under s.29D, in the absence of any circumstance allowing a general deficiency to be relied on.

64. Both sides were content to allow the matter to proceed on the assumption that the course chosen was lawful. I consider it inappropriate in those circumstances to rule upon that question.

65. In the result, I am not persuaded that the course taken by his Worship was wrong. He was entitled to view the circumstances as entitling him to consider applying s.19B. His decision to do so implies that he regarded the relevant factors as sufficiently atypical so as to reasonably support the invocation of s.19B. His Worship was then entitled to consider whether, in all the circumstances, including the consequences of conviction or finding of guilt on the respondent's employment, it was expedient to exercise the discretion conferred by s.19B. His Worship did that. He did not discharge the respondent unconditionally but required the respondent to submit to a recognisance in a substantial sum to be of good behaviour for a substantial period of time. I am not persuaded that the penalty imposed was inadequate.

66. The appeal is dismissed.