Re Andrew Laurence James Mcdermott v R [1990] FCA 249 (20 July 1990)

FEDERAL COURT OF AUSTRALIA

Re: ANDREW LAURENCE JAMES McDERMOTT
And: THE QUEEN
No. ACT G14 of 1990
FED No. 378
Appeal - Evidence - Criminal Law - Sentencing
49 A Crim R 105

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Neaves(2) and Foster(3) JJ.

CATCHWORDS

Appeal - unrepresented accused - application for adjournment to enable accused to explore avenues for legal representation - entitlement to legal representation at public expense - interests of justice - interference with trial judge's discretion

Evidence - cross-examination of witness as to credit - refusal to permit cross-examination of witness re criminal charges and committal for trial - general principles

Criminal Law - sufficiency of summing up - necessity for even balance of the Crown case and the accused's defence

Sentencing - potential disparity of sentence between the accused and co-offender

Sentencing - subjective factors - relevance of loss of career path

Crimes Act 1900 (NSW), s.115(1)

Crimes Act 1914 (Cth), s.71(1), 73(2)

Secret Commissions Act 1905 (Cth), s.4(1)

Proceeds of Crime Act 1987, s.26(9)

McInnes v. The Queen [1979] HCA 65; (1979) 143 CLR 575

Reg. v. Cox (1960) VR 665

Ahern v. Deputy Commissioner of Taxation (Qld) [1987] FCA 312; (1987) 76 ALR 137

Maxwell v. DPP (1935) AC 309

Stirland v. DPP (1934) AC 315

Titus v. The Queen (1983) 144 DLR (3rd) 577

R. v. Gonzaque (1983) 4 CCC (3rd) 505

Milgate v. The Queen (1964-1965) 38 ALJR 162

R. v. Sergi (1974) VR 1

Nanan v. The State (1986) AC 860

Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1

Reg. v. Veverka (1978) 1 NSWLR 478

Dominguez v. R. (1985) 63 ALR 181

Pemble v. R. [1971] HCA 20; (1971) 124 CLR 107

Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606

R. v. Allen (189) 41 A.Crim.R. 51

Hook v. Ralphs (1987) 45 SASR 529

R. v. Sargeant (1974) 60 Crim App R 74

R. v. Palmer (1980) 2 Crim App R (S) 93

HEARING

CANBERRA
20:7:1990

Counsel for the appellant : Mr C.L. Pannam QC and

Mr P. Holdenson

Solicitors for the appellant : Allan R. Nelson and Co.

Counsel for the respondent : Mr M. Weinberg QC and
Ms L. Lieder

Solicitors for the respondent : Director of Public
Prosecutions

ORDER

(1) the appeal be dismissed;
(2) the sentence of 4 years' imprisonment imposed in

respect of the offence of fraudulently and in
breach of his duty making a false entry in a
record be varied by substituting a period of
3 years' imprisonment; and

(3) the non-parole period of 18 months' imprisonment

be varied by substituting a period of 12 months'
imprisonment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On 5 February 1990 the appellant was arraigned on an indictment charging him with one offence of dishonestly using a computer with intent to obtain a gain contrary to s.115(1) of the Crimes Act 1900 (NSW); one offence of fraudulently and in breach of his duty making a false entry in a record contrary to s.72(a) of the Crimes Act 1914 (Cth); one offence of stealing documents the property of the Commonwealth contrary to s.71(1) of the Crimes Act 1914 (Cth); one offence of being a Commonwealth officer agreeing to receive certain sums of money for himself on an understanding that the exercise by him of his duty as a Commonwealth officer would be influenced contrary to s.73(2) of the Crimes Act 1914 (Cth); and four offences of indirectly obtaining for himself a consideration as a reward for acts done in relation to the affairs of the Crown contrary to s.4(1) of the Secret Commissions Act 1905 (Cth).

2. On his arraignment the appellant pleaded not guilty to each count. On 23 February 1990 he was found not guilty by direction on the first count of dishonestly using a computer with intent to obtain a gain; guilty of making a false entry in a record; the jury was unable to agree on the count of stealing documents the property of the Commonwealth; and guilty of the remaining five counts in the indictment.

3. In respect of the offence of fraudulently and in breach of his duty making a false entry in a record, the learned trial judge imposed a sentence of 4 years' imprisonment; in respect of the offence of agreeing to receive sums of money on the understanding that the exercise by him of his duty as a Commonwealth officer would be influenced, he imposed a sentence of 18 months' imprisonment; and on each of the other four offences he imposed sentences of one year's imprisonment. He ordered that all sentences be served concurrently and fixed a non-parole period of 18 months to commence from 23 February 1990.

4. The accused was not represented by counsel or solicitor on his trial. At the commencement of the trial he applied for an adjournment. The application was refused by the trial judge and the first ground of appeal is that the trial judge erred in the exercise of his discretion in refusing the appellant an adjournment in order to obtain legal representation.

5. The appellant had sought an adjournment of his trial upon two grounds, namely, to enable him to commence an application under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), in respect of the refusals of the Legal Aid Office and the Legal Aid Review Committee to grant him legal aid for his trial, and to enable him to take advantage of an offer to provide funds made by one Timothy Alan Roberts who was referred to in various counts in the indictment. The antecedent facts giving rise to the application were that the appellant had been granted legal aid by way of senior and junior counsel and solicitor for the committal proceedings and for a subsequent application under the ADJR Act. He applied for legal aid for his trial and that application was refused. He applied for a review of that decision by the Legal Aid Review Committee and on 19 October 1989 was advised by that Committee that legal aid for his trial was refused.

6. At a callover of criminal cases in December 1989 the trial was fixed to commence on 5 February 1990. At that callover the list judge was informed that the appellant would be ready to proceed and no intimation was given to the contrary. The matter was listed for directions between December 1989 and 5 February 1990 and it was only in the week before the trial that the Court was informed that the appellant's lack of finances might give rise to an application for an adjournment of the trial.

7. On 5 February 1990, the application for an adjournment having been made, the trial judge granted an adjournment until 7 February 1990. He intimated that he wished it to be conveyed to the office of the Commonwealth Attorney-General that if he had jurisdiction to do so, he would appoint counsel for the defence of the appellant and expressed the hope that in those circumstances the Attorney-General might make arrangements under s.69(3) of the Judiciary Act 1903 for the defence of the accused.

8. On 7 February 1990, no arrangements having been made for the appointment of counsel, the appellant was represented by a solicitor. A further application for adjournment was made on the ground that members of the Bar Council of the A.C.T. had indicated that limited legal assistance would be granted "or may be granted" to enable an application to be made to this Court pursuant to the ADJR Act to review the decision of the Legal Aid Office. The trial judge refused to grant an adjournment so that the decisions of the Legal Aid Office and the Legal Aid Review Committee could be tested in this Court under the ADJR Act.

9. In expansion of the ground of appeal directed to the refusal of the trial judge to grant the appellant an adjournment, it was submitted that the trial judge failed to give sufficient weight to the fact that the refusal of legal aid may have been successfully challenged in the proposed proceedings, failed to give sufficient weight to the offer of financial assistance from Roberts and failed to take into account the relatively little inconvenience which would have been caused by an adjournment.

10. On behalf of the respondent it was submitted that the refusal of an adjournment was a proper exercise of discretion in all the circumstances, including the fact that the proposed application to review the decisions of the Legal Aid Office and its Review Committee could have delayed the trial of the appellant for perhaps years, the offer by Roberts to provide financial assistance was not an unqualified offer and the inconvenience to be caused by an adjournment would in fact be very substantial.

11. It is to be noted that, in relation to the offer of funds from Roberts, they were not to be made available until May 1990 and only then on the condition that all sources of Government aid had been totally exhausted. The appellant had informed the trial judge that he regarded the ADJR Act proceedings as among the avenues that would have to be relevantly exhausted before the funds would be made available by Roberts.

12. It was common ground on the hearing of the appeal that the decision whether to grant or refuse the adjournment was within the discretion of the trial judge and that this Court would not lightly interfere with the exercise of that discretion. In McInnes v. The Queen [1979] HCA 65; (1979) 143 CLR 575 the High Court considered the principles relating to the exercise of such a discretion. Barwick CJ observed (at p 579) that an accused does not have a right to be provided with counsel at public expense, nor does he have any absolute right to legal aid. He has a right to have legal aid procedures duly followed, including of course the hearing of an appeal and review if these are sought. He referred to the need for a trial judge to consider very seriously whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay. He said a trial judge must also have in mind the interests of the Crown and of its witnesses and of the jurors.

13. In a separate judgment Mason J (as he then was) made similar observations. He said that in exercising the discretion whether to grant an adjournment of a trial the judge is not limited to the interests of the accused. He is entitled to regard the interests of justice, which may well be a very different matter (Reg. v. Cox (1960) VR 665 at 667).

14. In Ahern v. Deputy Commissioner of Taxation (Qld) [1987] FCA 312; (1987) 76 ALR 137 a Full Court of this Court referred to the well established principle that an appellate court will rarely interfere with a trial judge's exercise of discretion upon an application for adjournment (per Davies, Lockhart and Neaves JJ at p 146-147).

15. Having carefully considered the arguments advanced in support of this ground of appeal, I can see no basis for this Court to interfere with the exercise of the trial judge's discretion. His Honour gave full and proper weight to all matters that had been placed before him and exercised his discretion after giving proper weight to the interests involved.

16. The next ground of appeal argued was that the trial judge erred in refusing to allow the appellant to cross-examine a Crown witness, Yazni Sonia Ariff, as to credit based on the fact that she had been charged with certain offences and committed for trial in respect thereof. The matter arose in the following way. The Crown Prosecutor informed the trial judge that he proposed to call the witness to give evidence and he outlined the nature of her evidence. He further informed the trial judge that the witness had been committed for trial to the County Court in Victoria on two counts of insider trading relating to companies not involved in the accused's trial; and further charges of making a false statement to the National Companies and Securities Commission had been brought and adjourned until the outcome of her trial on the two charges of insider trading. The Crown Prosecutor intimated in advance of calling the witness that he would object to any cross-examination of the witness by the appellant in relation to those charges and her committal for trial.

17. Upon enquiry by the trial judge, the appellant confirmed that he had proposed to cross-examine the witness on those matters as they were directly relevant to her credibility as a witness. The trial judge intimated that he would give a ruling about the permissibility of such questions by the appellant at a later stage of the trial. Before the witness was called to give evidence, another witness gave evidence and the appellant attempted to elicit in cross-examination whether that witness was aware that Ariff had been committed for trial. The question was disallowed by the trial judge and the appellant was rebuked for raising the matter which had been discussed earlier in the absence of the jury and following which the trial judge had given an intimation that he would give a ruling when it became appropriate.

18. Shortly before Ariff was called to give evidence the trial judge ruled that although she could be cross-examined about the matters which gave rise to the charges against her and her committal for trial, she could not be asked in cross-examination whether she had been charged or committed for trial on any such matters.

19. Counsel for the appellant did not dispute the general principle that, in cross-examination of a witness as to credit, questions will not be allowed which are directed to establish that the witness has been charged with or committed for trial in relation to or acquitted of an offence, because none of those matters reflects on the credit of the witness (Maxwell v. DPP (1935) AC 309 and Stirland v. DPP (1934) AC 315). However, it was submitted on behalf of the appellant that if the fact that the witness has been charged with an offence or has been committed for trial in relation to an offence or even been acquitted of an offence has some independent relevance to the evaluation of the evidence of the witness such as, for example, to suggest interest, bias or motive to falsify, then cross-examination to establish such matters is permissible. Counsel cited the Canadian cases of Titus v. The Queen (1983) 144 DLR (3rd) 577 and R. v. Gonzaque (1983) 4 CCC (3rd) 505 and the Annotations to the American Law Reports on the right to impeach a witness in a criminal case.

20. Counsel for the appellant stressed the importance of the witness' evidence, as had been noted by the trial judge in his summing up to the jury, on the substantial issue whether the accused had acted dishonestly. The appellant should have been permitted to cross-examine the witness about the charges and her committal for trial, so the argument ran, because those matters and her prior personal association with the man Roberts provided clear motive for her to falsify her evidence against the appellant in order thereby to injure or harm Roberts against whom she had a desire for revenge.

21. There would have been be some force in this submission if the trial judge had been informed that the cross-examination of the witness as to those matters was relevant to an alleged motive on her part to give false testimony, but the appellant never revealed any such purpose to the trial judge. In any event, the evidence established that the witness first made complaint about the conduct of the appellant and Roberts relating to these proceedings in or about December 1987. She had given evidence at the appellant's committal proceedings in August 1988 along the lines of the evidence that she gave at the trial. These events all occurred prior to Roberts having instigated charges against Ariff, which led, so it was argued, to her having vengeful feelings against him.

22. Counsel for the Crown relied upon those facts and submitted that all that Ariff was doing at the appellant's trial was testifying in accordance with her prior complaint and evidence, both of which were made before she could have had any motive to implicate falsely either Roberts or the appellant. In those circumstances it was submitted that no question of bias or motive to falsify could have arisen. In any event, the appellant did cross-examine Ariff extensively on a range of matters touching upon her credibility as a witness and was not deprived entirely of the opportunity to demonstrate that she was a witness who could not be believed on her oath. Accordingly, her credibility was plainly raised for the consideration of the jury.

23. In my opinion the trial judge was plainly right in his ruling on the information that he was given by the appellant prior to the ruling being made.

24. The next ground of appeal was that the trial judge failed adequately to explain the nature of the appellant's defence, there was disproportionate concentration upon the Crown case, there was no attemtp to instruct the jury as to how the evidence related to the proof of the elements of each offence, and there was no direction given to the jury that their verdicts were required to be unanimous. All of these factors were said to have resulted in unsafe and unsatisfactory verdicts by the jury.

25. The failure of the trial judge to require unanimous verdicts was not pressed, having regard to the authorities on the subject (see, for example, Milgate v. The Queen (1964-1965) 38 ALJR 162 where Barwick C.J. said that the failure of a trial judge expressly to tell the jury that their verdict must be unanimous is not a ground for a new trial. See also R. v. Sergi (1974) VR 1 and Nanan v. The State (1986) AC 860).

26. The substance of the appellant's argument under this ground of appeal was directed to the failure of the trial judge adequately to explain the appellant's defence. It is necessary to advert to the course of the trial.

27. At the end of the Crown case the appellant opened his own case by way of an address to the jury. That address was not in the material before the Court. At the conclusion of his address the appellant applied for an adjournment of the case until the following day. It is apparent that that application was made before the luncheon adjournment. The application was refused and the luncheon adjournment taken. Upon resumption the appellant intimated that he proposed to make a statement from the floor of the court. He was permitted to interpose a witness before he made his statement and after the witness had withdrawn the appellant then made his statement to the jury. It was a very long statement. The appellant then called two other witnesses. There was no evidence in reply and the appellant then addressed the jury on his own behalf. The Crown Prosecutor, in accordance with tradition, declined to address the jury and the trial judge then summed up the matter.

28. Having set the context for the defence case, I now turn to its substance. It was that the appellant was engaged in a consultancy arrangement with Rigil Kent Limited of which Roberts was the managing director, which arrangement was not in conflict with his duties as a Commonwealth officer because those duties were simply clerical and involved setting up a data base and had nothing to do with fishing. The appellant conceded that he did not have permission to engage in outside employment but denied any corruption was involved in that employment. The conduct of his consultancy business through his own private company was entirely open. He lodged tax returns and had business cards printed. He rendered invoices and received payment from Rigil Kent Limited by cheque. The Rigil Kent Limited entitlement to units in the computer records of the Department of Fisheries where the accused was employed was incorrect. The appellant transferred 158 suspect boat units to a "dummy file" which had to have a name and the appellant chose the name Roberts as managing director of Rigil Kent Limited. Roberts could not have dealt with those boat units as there would have been a check of the records. Deleting the audit trail would not have concealed the transfer of the units because it was in the transaction report. If there had been something improper about removing the audit trail, another officer named Ngugen would not have agreed to the deletion of the audit trail. The appellant had deleted the audit trail to save computer memory.

29. Knowing that the 158 units would show up in the transaction report, he advised another officer, namely Hewitt, to show the report to their superior. The appellant maintained that he was sick and confused and under pressure at the relevant times. Soon after the investigation he returned and made efforts to explain his conduct. He maintained that there had been no need to obtain written authority before transferring the 158 units. If he had wanted to transfer the units dishonestly, there was a way in which it could have been done avoiding detection. In relation to his false denials to police officers, he had proffered explanations. He had argued that his meetings with one Richardson, as given in evidence, were consistent with honesty. He had also criticised the witness Ariff and argued that she should not be believed.

30. Counsel for the appellant referred to the principle that the trial judge, when directing the jury in a criminal trial, must hold an even balance between the case of the prosecution and that of the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence (Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1 per Gibbs CJ at 10; Reg. v. Veverka (1978) 1 NSWLR 478 per Street CJ at 480-482, and Dominquez v. R. (1985) 63 ALR 181 at 186-7).

31. Counsel for the respondent did not dispute the principle that failure adequately to put the defence is a well recognized ground of appeal and conceded that the duty to secure for the accused a fair trial according to law involves an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part for the accused (Pemble v. R. [1971] HCA 20; (1971) 124 CLR 107 at 117). It was submitted on behalf of the respondent that the trial judge had made adequate reference to the relevant factors of the defence case. Counsel assisted the Court by reference to passages in the summing up which touched upon almost all the matters specified by the appellant as representing the strands of his defence.

32. Having carefully considered the substance of the appellant's defence and the way in which the trial judge dealt with those various details, I am unable to conclude that the trial judge did not adequately put the appellant's defence. I am conscious also of the context of the trial and the way in which the appellant's defence was put before the jury by opening address, statement from the floor of the court and closing address, all in close sequence and not followed by any address by the Crown.

33. The appellant also appealed against the severity of the sentences imposed in totality, namely 4 years' imprisonment with a non-parole period of 18 months. It is necessary to review the facts as found by the sentencing judge. The following statement of facts is taken from his reasons for judgment in passing sentence:

"The offender, who was aged about 27 at the time,
joined the Australian Fisheries Service (AFS), part of
the Department of Primary Industries and Energy in
Canberra in 1985. At or about that time, or soon
after, there were moves in the AFS and in the fishing
industry to promote fishing for a species of fish
known as orange roughie in deep waters off the coast
of Australia in an area known as the south east trawl.
To this end, it was departmental policy to tighten
control for the fishing for that species by a system
of what were called boat units. The number of units
allocated to each fishing boat was based partly on the
size of the hull and partly on the power of the
engine. Boats that had customarily fished in the
south east trawl were, after a satisfactory marine
survey, allocated units.
However, at the time in question, the boat unit system
did not have any statutory basis and could not be
enforced. The management plan was in the state of
preparation to be determined by the Minister pursuant
to 1985 amendments to the Fisheries Act. Despite the
lack of an enforceable management plan the boat unit
scheme had the support of the fishing industry
generally and of the management council set up jointly
by industry and by the government.
Boat units could be, and were, traded for
consideration with or without the vessel to which they
were initially allocated. Towards the end of 1986 a
register of boat units which, up until that time, had
been kept in hard copy files within the AFS was in the
process of being placed upon a computer data base, as
well as on the hard copy files. The offender,
together with a colleague, Ms Hewitt, was given the
task of organizing the computerization of the boat
unit system.
Meanwhile, the offender made the acquaintance of a man
called Timothy Alan Roberts who was in control of a
company called Rigil Kent Limited, or of a group of
companies associated with that company. These
companies were engaged in the fishing industry and
operated out of Melbourne and elsewhere in Victoria.
Roberts was interested in expanding Rigil Kent's
activities in the south east trawl. Rigil Kent was
listed on the stock exchange and, before its demise,
it borrowed heavily from the financier Tricontinental.
Roberts recruited the services of McDermott who agreed
to act as Roberts' consultant and thereafter he
furnished advice and information to Roberts and to
Rigil Kent which was designed to give Rigil Kent a
favoured position in the Australian fishing industry.
This involved, amongst other services performed in
early 1987, trips and telephone calls to Melbourne to
keep Roberts informed of the progress of the proposed
management plan, supplying personal profiles on senior
officers of the Australian Fisheries Service and
obtaining information from departmental sources on
Rigil Kent's competitors.
McDermott also set up a substantial reference library
in his home in Canberra consisting partly of copies of
confidential documents which belonged to the
Commonwealth. Whilst McDermott was acting as Roberts'
adviser he was also negotiating with Roberts with a
view to joining Rigil Kent or an associated company at
a senior level. He proposed that he assume the mantle
of general manager with the right of hire and fire and
with his name on the pay cheques in order to remind
everyone where the power lies.
From November 1986 through to June 1987 he rendered
monthly invoices to Rigil Kent for services rendered
and these were all eventually paid to a total of
$22,329.19. Payments were all made to a bank account
in Hobart operated by a company formed by McDermott in
late 1986 of which he and his father were the
directors. The company was called Marintech Nominees
Pty Limited traded as Marintech Fisheries Consultants.
Although McDermott hid the true nature of his
relationship with Roberts from the Commonwealth he
voiced opposition to his colleagues in the AFS to the
boat unit system which he considered unfair to younger
fishermen wanting to join the industry. At the same
time his advice to Roberts was that while the boat
unit system remained without a statutory basis the
units were, in effect, under valued and that it could
be expected that when the management scheme was
determined the value of the units would increase
dramatically.
With that in mind he assisted Roberts in a proposal to
obtain finance which would enable Rigil Kent to
purchase small boats to which units were already
attached. Those boats could be sold and the
unattached units could be consolidated and used in
conjunction with one or two larger vessels which would
be purchased and which would be technically superior
to those of competitors.
McDermott urged haste in consummating this proposal,
as he expected that the management plan would be
determined by July 1987 and if that occurred he
anticipated a windfall profit to Rigil Kent of several
million dollars.
However, the management plan did not come into effect
as anticipated and McDermott's aims began to look as
though they might not be achieved. There were also
problems raising the finance which had caused the AFS
to look more closely at the position of Rigil Kent and
by September McDermott felt that the department was
becoming wary of him. Also by September 1987 the
position of Roberts within Rigil Kent was threatened.
On about 5 or 6 September 1987, Roberts expressed
fears to McDermott that he would be cheated out of his
entitlement in Rigil Kent and in order to protect his
position, sought assistance of McDermott to have boat
units recorded on the AFS computer base, transferred
from Rigil Kent into the name of Roberts. McDermott
expressed some reluctance in view of the department's
increasing wariness, but said that he would see what
he could do.
Shortly thereafter Roberts arranged for the payment of
the Marintech invoices for March to June, which were
then outstanding, and payment was eventually made on
24 September 1987.
On 10 September 1987 McDermott arranged for the audit
trail on the AFS computer to be shut down, thus making
it difficult for a check to be made on what he was
about to do. He then deleted computer entries
relating to the Rigil Kent unit holding, that is the
Rigil Kent file, and recreated the Rigil Kent file to
show 513 units standing in the name of Rigil Kent.
It is not possible to arrive at any conclusion about
how many units were in the name of Rigil Kent prior to
the deletion, but it is unnecessary to discuss or
determine that issue.
For reasons which are also not necessary to discuss,
the figure of 513 units did not reflect the true
situation in the Rigil Kent file as it overstated the
number of units to which Rigil Kent was entitled by
158 units. I am satisfied that the offender knew at
the time of the recreation of the Rigil Kent file by
him that it overstated the true position to that
extent.
On 14 September 1987 he caused the computer data base
to show that 158 units were transferred to Roberts and
that effect was that the Rigil Kent file showed a
total then of 203 units, which, by that stage, did
indeed reflect the true situation, several other
transactions having occurred in the meantime.
McDermott made a pretence of telling Ms Hewitt that he
had accidentally deleted the Rigil Kent file. The
transfer to Roberts took place while Hewitt was on
leave. On her return, McDermott adopted the further
ruse of having confirmed that there were 203 units in
the recreated Rigil Kent file.
However, of her own initiative, Hewitt obtained a
complete printout of all relevant transactions that
could be obtained and with some astuteness noticed the
discrepancy reflected by the creation of the new file
in the name of Roberts. The matter was brought to the
attention of the manager of the section. The offender
sought to explain what he had done by saying that
Roberts had informed him by telephone that he had
purchased 158 units from Rigil Kent.
The offender, who appeared for himself in the trial,
maintained this line of defence and submitted to the
jury that he had acted properly and in good faith at
all times. The jury clearly and understandably
rejected the submission.
At the sentencing stage the offender was represented
by a senior counsel who submitted that his client had
by then come to realise the seriousness and
impropriety of his behaviour. It was also submitted
that the offence of making a false entry on the
computer record was not a serious one because it was
discovered quickly and would have been discovered soon
in any event.
I accept that Roberts did not acquire any real value
by the purported transfer of the units to his name,
but that does not mean that the deliberate act of the
offender to falsify the record was not serious.
The keeping of correct records is, of course,
essential to the proper carrying out of governmental
functions. Those in government service, who are
privileged to have access to information on computer
data bases and to have the power to alter the entries
on the data base, are in a position of particular
responsibility and trust.
The offender in the present case abused that trust
when, perhaps in desperation, he saw payments for his
past efforts and his plans of a lucrative career in
the fishing industry at risk and he bowed to the
influence of Roberts, who seems to have had a
particular hold over him.
The tampering with the computer data base has to be
seen also against the background of the corrupt
agreement with Roberts to engage in, what was in
effect, industrial espionage aimed directly at putting
Rigil Kent in a superior position in the Australian
Fishing Industry and indirectly at enhancing the
employment prospects of McDermott within Rigil Kent."

34. The trial judge also took account of the subjective factors relating to the appellant which certainly warranted some degree of leniency. The appellant, a single man, was born on 16 October 1959. He is the eldest of three children. His father is a retired army officer. He graduated in science from Murdoch University, Western Australia, with Honours in biology. He then commenced training as a pilot officer in the RAAF but found himself unable to meet the required flying standards. He turned to a course which led to a graduate diploma at the Australian Maritime College, writing a thesis on fishing, economics and management which gave him entry to the Australian Fisheries Service. He had no prior convictions and there were many testimonials before the trial judge attesting to the appellant's high reputation and character.

35. Counsel for the appellant attempted to mount a case of serious disparity or disproportion between the penalty imposed on the appellant and that imposed on Roberts. The latter was dealt with in the Melbourne Magistrates Court on 8 September 1989 when he pleaded guilty to one count of agreeing to pay money to influence the appellant in his duty. Four secret commission charges and a charge of fraudulent use of a computer were not proceeded with, although they were referred to in an agreed summary of facts put before the Magistrates Court. Roberts was released without conviction on a three year bond including a condition that he pay the sum of $2,000 to a nominated charity. The maximum penalty which could have been imposed upon Roberts in the Magistrates Court was one year or a fine of $6,000.

36. Notwithstanding that Roberts was entitled to considerable leniency because of his plea of guilty (see s.4 of the Penalties and Sentences Act 1985 (Vic), and his offer to provide assistance to police in the prosecution of the appellant, the Director of Public Prosecutions has appealed to the County Court against the leniency of the sentence imposed upon Roberts. Proceedings by Roberts under the ADJR Act to review the decision of the Director of Public Prosecutions to appeal against the inadequacy of the sentence were abandoned several days before the appeal was due to come on for hearing in the County Court. As a consequence the appeal has not been heard. It is noted also that Roberts has cross-appealed against his conviction notwithstanding his plea of guilty in the Magistrates Court.

37. It is, of course, not possible to predict the outcome of the appeal but it seems to me to be relevant that the maximum penalty which could have been imposed upon Roberts in the Magistrates Court is 12 months' imprisonment. What is predictable is that, regardless of the outcome of the appeal and cross-appeal to the County Court of Victoria, the appellant will no doubt be left with a sense of grievance and the appearance that justice has not been done is at least foreseeable (Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606).

38. Another matter which has caused me concern is the failure of the trial judge to take into account the order made under the Proceeds of Crime Act 1987. At the time of sentencing the appellant the trial judge also ordered him to pay to the Commonwealth a pecuniary penalty equal to the benefit that the appellant had received by reason of the commission of the offences of which he was found guilty, namely, $22,330.19. The trial judge referred to the order for payment of a pecuniary penalty and held that, if a confiscation order is made, that is a factor which is capable of affecting the proper sentence to be handed down in the same way as orders for compensation, restitution, forfeiture and the like. His Honour could not predict whether the Commonwealth would seek to execute against the appellant's only substantial asset, namely a one-fifth share as tenant in common in his parents' home in Hobart. Taking all those factors into account he came to the conclusion that the pecuniary penalty order should not be regarded as an additional punishment in the appellant's case but simply the recovery of the proceeds of the offences for which he had been convicted, or the removal of ill-gotten gains.

39. Enforcement of the pecuniary penalty order by way of execution against the real estate in Hobart is not the only means by which the Commonwealth could recover the proceeds of the pecuniary penalty order. Section 26(8) provides that the amount payable by a person to the Commonwealth in accordance with a pecuniary penalty order is a civil debt due by the person to the Commonwealth. Section 26(9) provides that a pecuniary penalty order may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt by the person to the Commonwealth and the debt arising from the order shall be taken to be a judgment debt. Other methods of execution such as garnishee proceedings will thus be available.

40. In R. v. Allen (1989) 41 A Crim R 51 the Court of Criminal Appeal of Victoria considered the relevance of an order made under comparable legislation (Crimes (Confiscation of Profits) Act 1986). The Court said at p 57:

"It is commonplace, when sentencing, to take into
consideration the value of any goods stolen or
destroyed - and not recovered from the offender.
Similarly, the courts invariably take into
consideration the fact that an offender has returned
goods or money stolen or has made some other form of
recompense. Often this is seen, of course, as
evidence of remorse, but apart altogether from remorse
it is a relevant circumstance when determining the
sentence appropriate to the crime.
This being so, although an offender may be
sentenced before an application for a confiscation
order is made, then if at the time of sentencing it is
apparent that the profits of the crime are
confiscated, it is appropriate to bear that
circumstance in mind when sentencing the offender.
The weight to be attached for the purposes of
sentencing to the fact that a confiscation order has
been made is of course an entirely different matter."

In that case the sentencing judge had taken into account the confiscation orders he had made and the Court of Criminal Appeal held that he was right to do so.

41. In my opinion the trial judge should have taken into account the pecuniary penalty order which he made at the time of sentencing the appellant. That fact was a relevant consideration. It was, after all, an order for payment of a substantial sum of money.

42. In my opinion the learned judge also failed to give sufficient weight to the fact that the appellant had lost his career path. The loss of employment in a calling for which the prisoner has been trained can be a very heavy punishment (Hook v. Ralphs (1987) 45 SASR 529 at 543 citing R. v. Sargeant (1974) 60 Crim App R 74 at 76 and R. v. Palmer (1980) 2 Crim App R (S) 93 at 95.

43. The offences of which the appellant was convicted were serious offences and warranted a gaol sentence even though the appellant was a first offender. Having regard to the fact that the trial judge did not take account of the pecuniary penalty order and the subjective factors, I do not think that, applying the totality principle to the offences, a head sentence of more than half the maximum for the offence of fraudulently and in breach of his duty making a false entry in a record was warranted. I also think that the period of 18 months specified as the non-parole period was excessive in the circumstances. On the hearing of the appeal counsel for the respondent conceded that a total sentence of 4 years with a minimum non-parole period of 18 months was a heavy sentence in all the circumstances, but not manifestly excessive.

44. I would vary the head sentence of 4 years' imprisonment by reducing it to 3 years' imprisonment and the non-parole period by reducing it from 18 months to 12 months' imprisonment.

45. In summary, the orders I propose are:

(1) the appeal be dismissed;
(2) the sentence of 4 years' imprisonment imposed in
respect of the offence of fraudulently and in
breach of his duty making a false entry in a
record be varied by substituting a period of
3 years' imprisonment; and
(3) the non-parole period of 18 months' imprisonment
be varied by substituting a period of 12 months'
imprisonment.

I agree that the appellant has failed to establish any ground which would

justify the intervention of this Court to set aside his conviction for the offences of which he was found guilty, being one offence under each of ss.72(a) and 73(2) of the Crimes Act 1914 (Cth) and four offences under s.4(1) of the Secret Commissions Act 1905 (Cth). The arguments advanced on behalf of the appellant are identified and discussed in the judgment of Gallop J. which I have had the advantage of reading. I do not wish to add anything to what his Honour has written on that aspect of the matter. The appeal, in so far as it is an appeal against conviction, should, therefore, be dismissed.

2. I am further of opinion that the appeal, in so far as it is an appeal against the severity of the sentence of imprisonment for four years imposed upon the appellant in respect of the offence under s.72(a) of the Crimes Act 1914 (Cth), should also be dismissed.

3. The principles which limit the exercise by this Court of its appellate jurisdiction with respect to a discretionary sentence are well established. The following statement of those principles is taken from the joint judgment in Cranssen v. The King [1936] HCA 42; (1936) 55 CLR 509 at pp 519-520:

"The jurisdiction to revise such a discretion must
be exercised in accordance with recognized
principles. It is not enough that the members of
the court would themselves have imposed a less or
different sentence, or that they think the sentence
over-severe. There must be some reason for
regarding the discretion confided to the court of
first instance as improperly exercised. This may
appear from the circumstances which that court has
taken into account. They may include some
considerations which ought not to have affected the
discretion, or may exclude others which ought to
have done so. The court may have mistaken or been
misled as to the facts, or an error of law may have
been made. Effect may have been given to views or
opinions which are extreme or misguided. But it is
not necessary that some definite or specific error
should be assigned. The nature of the sentence
itself, when considered in relation to the offence
and the circumstances of the case, may be such as to
afford convincing evidence that in some way the
exercise of the discretion has been unsound. In
short, the principles which guide courts of appeal
in dealing with matters resting in the discretion of
the court of first instance restrain the
intervention of this court to cases where the
sentence appears unreasonable, or has not been fixed
in the due and proper exercise of the court's
authority."

See also Kovac v. R. (1977) 15 ALR 637 at p 643.

4. Although it must be accepted that the sentence imposed is a heavy one, it has not been shown to my satisfaction that the trial judge, in arriving at what he considered to be the appropriate sentence, failed to take into account any relevant circumstance or that the exercise of the wide discretion vested in him otherwise miscarried.

5. In my opinion, the circumstance that the Director of Public Prosecutions proceeded against Timothy Alan Roberts summarily and only for one offence in respect of which the maximum penalty is imprisonment for twelve months or a fine of $6,000 or both provides no foundation for the argument presented on behalf of the appellant that there was a serious disparity in sentencing which should result in a reduction of the sentence imposed on the appellant. The trial judge proceeded to impose upon the appellant such sentence as was appropriate in respect of the offences of which he had been found guilty without regard to the situation affecting Roberts. In my view his Honour was correct in so doing.

6. Immediately after sentencing the appellant, the trial judge made an order against him under the Proceeds of Crime Act 1987 (Cth) in the sum of $22,330.19 representing the benefit derived by the appellant by reason of the commission of the offences of which he was found guilty. In passing sentence, his Honour said that he regarded as compelling the reasons given by the Court of Criminal Appeal of Victoria in R. v. Allen (1989) 41 A Crim R.51 and added:

"If a confiscation order is made or to be made, then
that is a factor which is capable of affecting the
proper sentence to be handed down in the same way as
orders for compensation, restitution, forfeiture and
the like have long been regarded."

7. In R. v. Allen (supra) the Court of Criminal Appeal said, at p 57:

" . . . if at the time of sentencing it is apparent
that the profits of the crime are confiscated, it is
appropriate to bear that circumstance in mind when
sentencing the offender.
The weight to be attached for the purposes of
sentencing to the fact that a confiscation order has
been made is of course an entirely different matter.
Often it may be entitled to little weight. But if,
for example, the crime was one involving a fraud of
some millions of dollars, it might be seen to have
some real relevance when sentencing to be aware that
a confiscation order had been made that was likely
to be effective in the recovery of the amount of the
fraud."

8. In the present case the trial judge gave consideration to the weight to be given to the confiscation order he was about to make. Based on the evidence before him, his Honour said:

"Exactly what result it will have depends on the
circumstances. Where a confiscation order is likely
to be effective, it may be of greater weight in
affecting the sentence than when the chances of
affecting enforcement against the property of the
offender are not great. In the present case, it
seems to me that because of the offender's lack of
means, the pecuniary penalty order can be enforced
by execution against the only asset of which there
is evidence, namely, a one fifth share as tenant in
common in McDermott's parents home in Hobart.
Whether the Commonwealth will choose to execute
against that asset I do not know, and any hardship
that it may cause will, of course, be more directly
felt by the parents than by the offender himself,
although I should expect that it would be a matter
of some concern to him.
However, after taking all those factors into
consideration, I come to the conclusion that the
pecuniary penalty order in this case is not to be
regarded as an additional punishment, but simply the
recovery of the proceeds of the offences for which
McDermott has been convicted or as was said in
Allen's case, the removal of illgotten gains. What
I consider to be a proper sentence for each of these
convictions is unaffected by what I have decided
should be the appropriate order in the application
under the Proceeds of Crime Act."

9. In my opinion, his Honour was entitled to take the view of the matter which he did. He was certainly not bound to do otherwise. No basis for the intervention of this Court has been established.

10. It was also submitted that the trial judge had failed to take into account the effect of the convictions upon the appellant's career path. This matter was, during the sentencing process, the subject of specific submission to his Honour by senior counsel who then appeared for the appellant. The circumstance that in passing sentence his Honour did not expressly refer to it does not satisfy me that his Honour did not take it into consideration.

11. His Honour took a very serious view of the appellant's conduct. In my opinion, he was clearly warranted in doing so. There was, in my view, a proper exercise of the sentencing discretion.

12. I would, therefore, dismiss the appeal.

I agree that the appellant's appeal against conviction should be dismissed for the reasons given by Gallop J. in his judgment. I have nothing to add to those reasons.

2. The appeal against sentence has occasioned me more difficulty. There is undoubtedly much cogency in the submission on behalf of the Crown that although the head sentence and accompanying non-parole period imposed by the Chief Justice are heavy, they are not so heavy as to fall outside the ambit of a proper exercise of judicial discretion in sentencing. After considerable hesitation I have, however, come to the conclusion that grounds for interference exist.

3. In the circumstances of this case, I consider, with respect, that it was inappropriate to accord no weight to the order made by his Honour under the Proceeds of Crime Act 1987. This order, in my view, had significant punitive and deterrent effect in the context of this case. Although there must be a query as to whether the Crown will seek immediate enforcement of the order against the Tasmanian asset, having regard to the hardship that would thereby be inflicted on the appellant's parents, there must remain the prospect that the pecuniary penalty will be recovered in the future by any of the means available for the recovery of a judgment debt (s.26(9)) Proceeds of Crime Act 1987). The enforceable requirement to pay this considerable sum in the future, when coupled with the fact that the conviction itself will inevitably have a most deleterious effect on the appellant's future earning prospects cannot, in my respectful view, be left out of account in the sentencing process.

4. Additionally, I am of opinion that there is some force in the appellant's contention that disparity exists between his position and that of the man Roberts with whom he was associated in this criminal enterprise. The nature of that association and the existing potentiality for disparity in sentencing is set out in the judgment of Gallop J. I adopt, with respect, what his Honour there says. In the context that it is accepted that the appellant was influenced by Roberts who seemed to have had a particular hold over him, I consider that at least a serious possibility of relevant disparity has been established, such as to require that it be reflected in the sentence imposed on the appellant.

5. Accordingly, I am of the view that the sentence and non-parole period should be reconsidered by this Court. In doing so I do not seek to depart in any way from the strictures made by the Chief Justice on the criminal conduct of the appellant. It called for and received very serious judicial criticism. A sentence given in respect of it should, undoubtedly, contain a strong deterrent element not only to the offender, but also to others who might be minded to abuse positions of public trust by committing like offences.

6. There are, however, in this case, quite strong subjective factors to be taken into account in favour of the appellant. They are set out in the judgment of Gallop J. and I shall not repeat them here.

7. In all the circumstances I consider that justice will be served if the overall head sentence be reduced to 3 years imprisonment and the non-parole period to 12 months.

8. I agree with the orders proposed by Gallop J.