Hill v Tasmania [2022] TASCCA 5

Judgment Number: [2022] TASCCA 5

1 The learned sentencing judge's sentencing order be set aside, save as to conviction.

2 In lieu thereof, the appellant be sentenced to nine months' imprisonment, wholly suspended on condition that the appellant commit no offence punishable by imprisonment for a period of 18 months from 29 April 2022.

1 On 23 November 2021 the appellant, Anthony James Hill, was convicted of thirty one counts of computer related fraud and six counts of fraud. He was sentenced by Geason J to a home detention order for a period of 15 months. The order was subject to the standard conditions appearing in s 42AD of the Sentencing Act 1997 which included electronic monitoring. It was not subject to any special conditions under that Act.

2 The offending occurred over a period of time from February 2017 to March 2018, and the total loss caused to the golf club of which he was the treasurer was $28,613.38.

3 The appellant has appealed on the ground that the sentence was manifestly excessive. In his written submissions however, he makes it clear that he does not seek to have the home detention order cancelled but complains that the period of the order is excessive. He seeks to have it reduced in length.

4 At the conclusion of the hearing of the appeal the Court ordered that the learned sentencing judge's sentencing order be set aside, save as to conviction, and that in lieu thereof the appellant be sentenced to nine months imprisonment, wholly suspended on condition that the appellant commit no offence punishable by imprisonment for a period of 18 months from 29 April 2022. These are my reasons for joining in the making of those orders.

5 The task of this Court on an appeal of this nature needs to be borne steadily in mind. It has been explained many times in this Court and in others. A relatively recent restatement of the relevant principles is to be found in Hall v Tasmania [2015] TASCCA 6, where Pearce J said at [51]-[52]:

"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

52 The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]."

6 The learned sentencing judge described the appellant's offending in his comments on passing sentence as follows:

"Your crimes were committed against the New Norfolk Golf Club. You were its Treasurer. You held that role in a voluntary capacity from November 2016. As Treasurer, you were responsible for the financial management of the club including paying all liabilities incurred and being responsible for all incoming monies including sponsorship and membership fees. At the time you commenced in that role, the club operated an ANZ bank account. In mid-November 2016 you opened an account with MyState Bank a course which had been approved by the club committee. That account was used to pay wages, accounts and bills associated with the running of the club. The ANZ account, was used predominately to process EFTPOS transactions. It had an online capability so that fund transfers between the two accounts to which I have referred could occur. Shortly after the MyState account was opened, you activated internet banking on that account, with the knowledge of the President, but you were the only person who knew the login details and passwords. In January 2017 two debit cards were issued on that account, one in your name and one in the name of the President. You had permission to use the card but only for club business.

You held a position of trust at the club having access to both accounts as required in order to discharge your obligations as Treasurer.

In May 2018 you resigned from that position for health reasons. Another person took over the role and in 2018 he reviewed the club's accounts and financial records. It was discovered that you had used the club's MyState debit card at EFTPOS machines or provided the cards details to various websites in order to conduct 30 unauthorised transactions. These occurred between 3 February 2017 and 22 July 2017, 13 September 2017 and 27 November 2017, between 21 December 2017 and 19 January 2018, and again on 1 March 2018.

You used those funds to pay for your hospital and medical bills, airline travel and other travel costs and goods and services not authorised by the club. In addition you used the MyState debit card at various automatic teller machines in and around Hobart to withdraw cash for your personal use. In total 30 unauthorised transactions conducted by you totalled $11,113.38. The review also discovered that on seven separate occasions you electronically transferred funds from the club's ANZ and MyState bank accounts to your own personal savings account in the amount of $17,500.00.

In about August 2018 once the extent of the loss was known you were confronted about the matter. You admitted having used the club's money as your own and you said that you had been battling. You agreed to repay the money when your house was sold, however, when a representative of the club attempted to place a caveat on your property, a course you had agreed to, it was discovered that you were an undischarged bankrupt and another creditor had already placed a caveat on the house. This had been in place since 2012 when you had been declared bankrupt. The money you have taken remains unpaid.

On 4 October 2018, after the matter was reported to police, you attended the Bridgewater Police Station and participated in an interview. You denied using the debit card yourself telling police you got involved with a Spanish woman, who you did not name and you said that you gave her the card and the login details for the club's bank accounts. You told police that this woman had conducted all of the electronic transfers from the club's bank accounts and you claimed that she withdrew those amounts in cash using the one of those cards. You admitted knowing about the transfers when they occurred and you said you should not have let her have access to any of the club's accounts.

The State does not accept that explanation, in relation to the electronic transfers, and your bank statements reveal that the money was used by you to pay for general and household expenses including your mortgage. Some of the money, $5,200, (counts 27 to 29 inclusive), was used by you to travel and stay in the Philippines between 27 August and 18 September 2017."

7 The learned sentencing judge made the following comments as to the particular sentence which he imposed:

"I have had the benefit of detailed submissions in mitigation. I have regard to them. I have also had you assessed for a home detention order. As to that particular sentencing option you are considered suitable because you are willing to relinquish your employment. That is necessary because your employment otherwise prevents you from providing community corrections with notice of your commitments and activities.

The substance of the plea in mitigation identifies you as the victim of a dating scam. Apparently you met a woman online some time ago, and began engaging online with her. You hoped to bring her to Tasmania at some point. She apparently requested money from you on a regular basis, and you expected to be repaid. She told you that she had been left gold by her grandfather, and that she needed money for the purposes of obtaining that gold, and paying insurance. You claim to have sent all the money you had, leaving yourself with nothing to live on. You then exploited your position as Treasurer of the Club to access more money to cover your own living costs, loans and other bills.

You present with a good work history, having been employed in hotels, management roles, and been employed with a bank, and a client services officer within detention centres throughout Australia. You are presently employed as a taxi driver and have been in that position for five years. You work four days per week and you average eleven hours per day. Commencing at about 4.30am your income is based upon commission. You earn approximately $350 a week from that position, and you use that to pay rent and groceries. As I have noted you will relinquish that role if a Home Detention Order is made.

There is no history of alcohol abuse or mental health issues. You are on medication to treat heart and cardiovascular illness. Those conditions prevent you from undertaking an order involving community service work.

Your offending is serious, and whilst the circumstances which gave rise to it do not fall into the typical category of such offending, for example to fund gambling, there is still a significant impact resulting from your conduct. You too are a victim - a victim of the manipulation of others. At the same time your participation in that activity with this person was directed towards ultimately satisfying your own needs for company, and a relationship. That need is a human one, and I view it empathetically at that level. However, such conduct cannot be condoned, and requires a penalty which deters others. Your offending is aggravated by reason of the position of trust you occupied, and the protracted nature of your offending.

At the same time, I accept that this conduct is out of character for you, and I expect that this entire episode has had a significant impact upon you. I consider that you are unlikely to reoffend, and that the need for personal deterrence in your case is low.

It is the obligation reposed in the Court to punish you for your conduct and to deter others which necessitates the imposition of a strong penalty.

Those relevant sentencing objectives can be fulfilled through the imposition of a term of imprisonment. However, on the basis of your age, the absence of prior convictions, your health and circumstances which have been put to me in mitigation, I have decided to make a Home Detention Order. That such order has a general deterrent effect cannot be doubted and the Court of Criminal Appeal has said as much in DPP v Webb and DPP v King [2020] TASCCA 8."

8 The appellant makes the following submissions in support of his appeal:

"• I am not able to work with this sentence and as I am now on a pension, I cannot afford to pay more than $20 per fortnight. If I can go back to work I would to be able to pay $100 per fortnight.

• I have been waiting three years for this action to come before the courts and during this time had to go through every day not knowing what was going to happen. It has been very stressful.
• The sentence is near the top of the maximum time that can be given. Home detention is a form of imprisonment due to the restrictions placed on the offender.
• 33BC of the Sentencing Act allows offenders on home Detention to continue in employment and in doing so can travel to public places to perform their work. But I not able to do this.
• If I was given a prison sentence of 6 months I would be able apply for parole after 3 months. I have been sentenced to 15mths of home detention but have no option of remission or variation of parole provisions.
• I am not seeking to have the home detention cancelled but reduced so as to allow me to work to reduce the debt.
• I am 70 years old now and over the last four years have had 2 hip replacements, 2 shoulder repairs, prostate removed due to cancer and I am an insulin dependent diabetic and had 4 operations When the order has finished I may not be able to resume employment.
• I have found some cases that show less punishment for violent crimes.
• An offender was sentenced to 18 months of home detention for aggravated burglary.
• The respondent Kendall is sentenced to 4 years' imprisonment with effect from 24 August 2021, with 12 months of that sentence suspended on condition that she commit no offence punishable by imprisonment for a period of 2 years after her release from prison. It is ordered that she not be eligible for parole until she has served 18 months of that sentence. She is ordered to pay compensation in the sum of $347,849.18 to PJ Robinson Pty Ltd within 28 days. I have received 15mths detention with no remission.
• One count of assault sentenced to 7mths imprisonment which has been suspended.
• Assault sentence to 9mths imprisonment suspended.
• Wounding 6 mths suspended sentence.
• Aggravated robbery 12mths home detention.
• Aggravated burglary and one count of wounding 12 mths home detention."

9 Counsel for the respondent, Ms Wilson, in her written submissions contends that the appellant's crimes were serious given:

• The length of time over which the criminal conduct occurred - a period of 13 months.
• There were 37 individual fraudulent transactions committed by the appellant against the club.
• The quantum involved, namely $28,000 was moderate.
• The crimes against the club involved a breach of trust. The club entrusted the appellant to manage its finances appropriately.
• An audit of the financial records had to be undertaken by the club in order to discover the extent of the loss and what the appellant had done, without any assistance from the appellant.
• The prospects of the club recovering the entire loss was slim to non-existent as whilst the appellant had offered to repay the money to the club when his house sold, an attempt to place a caveat on his house was unsuccessful as a caveat had been in place since 2012 when the appellant was declared a bankrupt.

10 Counsel for the respondent acknowledges that the following mitigating factors were present:

• The appellant pleaded guilty and he was entitled to the utilitarian benefit of the plea, which saved the State the cost of a trial.
• The appellant did not have any prior convictions of significance (traffic convictions only) and stood for sentence as a person of otherwise good character. However, it is not unusual for offenders who commit crimes of this type to be persons of otherwise good character.
• The relevance of good character must also be weighed against the period of the offending and the fact that the appellant's conduct was persistent, with transactions occurring on a regular basis. In this way, the appellant's conduct was not isolated and could not be said to be out of character.
• The appellant voluntarily desisted from the offending conduct approximately two months prior to resigning from the role.
• The appellant was 70 years old at the time of sentencing and had a good employment history. He had suffered some health issues.

11 Counsel for the respondent annexed to her submissions a table she compiled with reference to sentences from the Court's database of matters relating to frauds mostly committed in circumstances of a breach of trust in an amount of between $20,000 and $49,000.

12 The sentences were imposed between 2008 and 2021 and none of them involved home detention orders, as, with the exception of the first four sentences, home detention orders were not available to the Court as a sentencing option.

13 In all cases, sentences of imprisonment, either immediate or suspended, were imposed and some sentences were also coupled with community service and probation orders. Of the 20 sentences in the table, six sentences were equal to or above 15 months. The remaining 14 sentences were in the range between five and 12 months, with or without the addition of community service hours and probation.

14 Counsel for the appellant concludes that it is accepted that the 15 month period of home detention imposed on the appellant is at the top of the range for this type of offending, but she submits that it was not manifestly excessive, given the circumstances of the offending, the need for general deterrence and denunciation and matters personal to the appellant.

15 I am unable to agree that the sentence was not manifestly excessive. Given the amount involved and the personal circumstances of the defendant 15 months' home detention was unfair and unjust.

16 It was particularly so given that the appellant was obliged to agree to give up his employment as a taxi driver in order to be considered suitable for home detention with electronic monitoring and that when he agreed to that he did not know how long the operational period of the home detention order would be. Moreover, given that he was 70 years old, in poor health and lived alone, confining him to his home without being able to leave to attend employment made the length of the order unreasonable in my view.

17 In allowing the appeal and joining in the making of the orders that were made, I agreed with the other members of the Court that the most appropriate re-sentencing of the appellant involved quashing the sentence of home detention and substituting a suspended sentence, the length of which took into account that the appellant had already served five months of very restrictive home detention.

18 In taking the course that it did, the Court was responding to the need, in unusual circumstances, for a highly individualised approach to sentencing in the particular case. Care should be exercised in the use of this judgment as a sentencing precedent.

19 I agree with the reasons for judgment of Estcourt J. They reflect the reasons I joined in the making of the orders at the conclusion of the hearing of the appeal.

20 I agreed that the appeal be allowed and the substituted sentence be imposed. I agree with reasons of Estcourt J.