Criminal law - Sentencing appeal - Section 19B Crimes Act 1914 (Cth) - Whether extenuating circumstances

Crimes Act 1914 (Cth), s 19B

Respondent : Commonwealth Director of Public Prosecutions

Dauphin v R [2002] WASCA 104

Paterson v Fenwick [1994] ACTSC 25; (1994) 115 FLR 462

R v Simard [2001] QCA 531

1 PULLIN J: On 11 April 2003, the appellant pleaded guilty in the Perth Court of Petty Sessions to two offences. They were that:

(a) On or about 11 October 2001 at Henderson, the appellant made a false document, namely a letter bearing Department of Immigration and Multicultural Affairs letterhead, with the intention that he would use the letter to dishonestly induce a person to accept it as genuine and, if it was so accepted, to dishonestly obtain a gain, contrary to subsection 144.1(5) of the Criminal Code (Cth).

(b) On or about 11 October 2001 at Melville, the appellant, knowing the document, namely a letter bearing Department of Immigration and Multicultural Affairs letterhead, was a false document, used it with the intention of dishonestly inducing another person to accept it as genuine and, if it was so accepted, to dishonestly obtain a gain, contrary to subsection 145.1(5) of the Criminal Code (Cth).

2 The appellant, through counsel, submitted that the Magistrate, Ms J Wager SM, should make an order under s 19B of the Crimes Act that the charge be dismissed or that the appellant be discharged without a conviction being recorded. The learned Magistrate, in the exercise of the discretion conferred under s 19B, declined to make an order of the kind requested and instead recorded a conviction and fined the appellant $600 on the first charge and $300 on the second charge.

3 The appellant appeals against the learned Magistrate's decision refusing to make an order under s 19B.

4 The facts which were read to the Court and which were not in dispute were as follows. The appellant is a UK citizen who is sponsored by his employer, Austal Ships, to live and work in Australia. In October 2001, he was in the process of applying for a long stay temporary visa which would allow him, his wife and son to stay and work in Australia for a period of 12 to 18 months. When these offences were committed, information was being gathered by the Department of Immigration and Multicultural Affairs ("DIMA") and the appellant's visa application had not been approved.

5 On 11 October 2001, the appellant approached a Ford motor vehicle dealership at Melville and discussed the purchase of a Hyundai Excel. It was agreed that finance for the vehicle would be arranged through the dealer and the appellant would provide the sales representative with personal information and confirmation of his visa status. The sales representative asked the appellant for a letter on DIMA letterhead, confirming that the appellant had been granted temporary residence for up to four years, and said that the letter was to satisfy his "boss".

6 Using the facilities at Austal Ships, the appellant photocopied a letter that had previously been sent to him by DIMA. He blanked out the existing text, retyped the body of the letter to say that a long stay temporary residence visa had been granted. The precise terms of the forged letter read:

"Dear Mr Mansfield

RE: LONG STAY TEMPORARY RESIDENCE VISA

Following our conversation today, I am pleased to advise you that you have now met all the requirements for the approval of your application, and you have been granted a Long Stay Temporary Residence Visa, subclass 457.

The above visa is valid for a period of 4 years, and valid whilst you are employed by Austal Ships Pty. If you should wish to change conditions of your employment you must obtain the permission in writing of the secretary.

Yours sincerely

D. Boone

Perth Business Centre

10 October 2001."

7 The appellant then faxed the letter to the Ford dealership, and it appears that the letter was passed by the dealership to Ford Credit. They then rang DIMA to verify the contents of the letter. A copy of the letter was provided to the Department, and an investigation followed.

8 As part of the investigation, the appellant participated in a taped record of interview with investigators on 8 November 2001. During that interview, he admitted having made the letter in the manner outlined and providing it to the sales representative at the Ford dealership. He said he had done so with the intention that the salesman only needed it for his "boss" to keep him happy and not to use it for seeking credit. He said that he had no excuse for writing the letter and that it should never have happened, but said he had deliberately not signed the letter and claimed that the absence of any signature negated the validity of the letter, and that unless it was signed, nobody would accept it.

9 By way of explanation for the offences, the appellant said he had plans to travel to the UK to visit his ailing father shortly after 11 October 2001, and that he was buying the vehicle from Ford so that his family would have a means of transport in his absence. He said that he was not thinking straight, and insisted that he had not tried to be fraudulent or to cheat anybody. He said that after receiving the forged letter, the sales representative had contacted him to ask that the letter be signed, and that realising the matter might be more serious than he had at first thought, the appellant cancelled his application for finance and paid cash for the vehicle.

10 After those facts were read, submissions were made by counsel on behalf of the appellant.

11 The penalty for these offences was 2 years' imprisonment on each charge or a fine of $13,200. The appellant had no prior convictions.

12 Submissions were made by counsel for the appellant to the Magistrate that the appellant was under stress associated with his father's imminent death; that he had an urgent need to purchase a vehicle for the use of his children while he was in the United Kingdom; that he desisted from his fraudulent conduct within hours of embarking upon it; that no person was, in fact, defrauded or likely to be defrauded; that he cooperated with the investigating authorities; that he pleaded guilty at the first available opportunity; that he was of good character; and that the conviction on the charge would have an effect on his future application for residency in Australia.

13 The grounds of appeal are two-fold. They are, first, that the learned Magistrate took an unduly narrow interpretation of the words "extenuating circumstances" as contained in s 19B(1)(b)(iii) of the Crimes Act 1914 and, secondly, that the learned Magistrate failed to have "sufficient regard" to all of the extenuating circumstances, and a number of such circumstances were listed.

14 I now refer to her Worship's reasons for decision, but before doing so, I should make it clear that the submissions made by counsel for the appellant to the learned Magistrate emphasised the fact that an application was being made under s 19B. Written notes summarising the effect of decisions dealing with s 19B were provided to the Magistrate by counsel for the respondent. I mention these facts because the first ground of appeal alleges that the learned Magistrate misdirected herself as to the meaning of the section, and it is therefore relevant to know whether submissions were made about its meaning. It was submitted by counsel for the appellant that the Magistrate should find, and take account of the fact, that the appellant was a man of excellent character and that there were extenuating circumstances in view of the appellant's emotional state, and that he was under pressure to conclude the transaction concerning the motor vehicle within a short period of time. Counsel for the appellant did not submit that the offence was a trivial one. Parts of s 19B were read by counsel to the Court, and the learned Magistrate read aloud parts of the section. Section 19B(1) reads:

(a) a person is charged before a court with an offence against the law of the Commonwealth; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, cultural background, 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;

(c) dismiss the charge or charges in respect of which the court is so satisfied; or

(d) discharge the person, ..."

15 Her Worship gave reasons for her decision ex tempore. She found one of the factors in s 19(1)(b)(i) existed, namely that the appellant was of good character. She then briefly related the circumstances of the offence and then, as her Worship said, moved "to the next heading", which was clearly a reference to the factor in s 19B(1)(b)(ii), ie whether the offence was "trivial". Her Worship concluded that it was not a trivial offence, and finally turned to the factor in s 19(1)(b)(iii), namely the question about whether or not the offence was committed under "extenuating circumstances". In that respect, her Worship said:

"... I accept that at that time Mr Mansfield's personal circumstances were very distressing with the sickness and ultimately the passing away of his father. But the extenuating circumstances relating to this document simply aren't there in my view, because the document's produced in order to buy a car. Nothing's before the court to indicate that Mr Mansfield was desperate for a car, ... that without that he wasn't going to get a job or anything of that type. ... the document that's been produced is one that in my view goes well beyond an extenuating circumstance to get a car, so I accept that his reasoning may not have been as sound as at other times of his life, but I don't accept that the document and the act of passing it to Ford or via the dealer, leads to an extenuating circumstance."

"Basically it comes down to a situation where in my view the offence is simply not one that should be dealt with by a section 19B [order]. I repeat that I accept that Mr Mansfield was going through a difficult time. His judgment was impaired at the time. He's a person of good character. He has cooperated, but the offence itself is of a type where the community would demand that a penalty be imposed. There are many people who have to follow the rulings of the Department of Immigration and Multicultural Affairs and it would be inappropriate for such an order to be made in light of the deliberate flouting of - - of what the department had ordered at the time for Mr Mansfield.

So for those reasons I'm not going to make an order pursuant to s 19B."

17 Before referring to the grounds of appeal, I should note that orders under s 19B are not common. Thus, the circumstances in which it is appropriate to invoke s 19B of the Crimes Act have been described as rare, exceptional and special or singular: see Nelson v Quinn [2001] WASCA 297; R v Weller (1988) 37 A Crim R 349 at 350. These were cases dealing with offences under the Customs Act, but I consider that an order under s 19B would also be rare in a case of forging and uttering.

18 Section 19 orders require two processes or stages before an order can be made. First is the identification of a factor or factors of the character specified in subpar (i), (ii) and/or (iii) of s 19B(1)(b). The second stage is the determination that having regard to the factor or factors so identified, it is "inexpedient to inflict any punishment" or to reach the other conclusions for which the paragraph provides: see Commissioner of Taxation v Baffsky [2001] NSWCCA 332; Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 276-277.

19 The learned Magistrate clearly understood that this was how she had to proceed. In relation to the factor in s 19(1)(b)(iii), the Magistrate did not agree with the submissions that she should find that the offence was committed under "extenuating circumstances". The first ground of appeal raises the question as to whether or not the learned Magistrate misdirected herself as to the meaning of that expression.

20 The word "extenuating" means in ordinary meaning "to serve to make the offence seem less serious": see "Macquarie Dictionary". In Lanham v Brake (1983) 74 FLR 284, it was said that "extenuating circumstances" are those "that lessen, or seem to lessen, the seeming magnitude of (guilt or offence) by partial excuses". In O'Sullivan v Wilkinson [1952] SASR 213, the phrase was said to mean circumstances which excuse, in any appreciable degree, the commission of the offence charged. See also Nitschke v Halliday (1982) 30 SASR 119. Extenuating circumstances may be many and varied, but there must be some link between the extenuating circumstances relied on and the commission of the offence. This is because the provision does not allow the court to have regard to extenuating circumstances generally. The court has to decide "the extent to which the offence was committed under extenuating circumstances". Commissioner of Taxation v Baffsky (supra) at [47].

21 The submissions on behalf of the appellant are to the effect that the Magistrate misdirected herself as to the meaning of extenuating circumstances and that she was directing herself that extenuating circumstances were only those which were linked directly to the purchase of the vehicle. This was said to be evident by the fact that the Magistrate said that the extenuating circumstances "relating to this document simply aren't there in my view, because the document's produced in order to buy a car". Reference was also made to the fact that the learned Magistrate said:

"Nothing's before the court to indicate that Mr Mansfied was desperate for a car, ... that without that he wasn't going to get a job or anything of that type."

Reference was also made to the fact that the learned Magistrate said that the production of the document went "well beyond an extenuating circumstance to get a car".

22 It is important when reviewing ex tempore reasons of a Magistrate working in a busy court, not to examine them hypercritically. It is necessary to look for the point that the Magistrate was making.

23 In my opinion, the learned Magistrate, when examining the issue about whether there were extenuating circumstances, accepted that the appellant was operating under distressing circumstances and that his reasoning may not have been as sound as at other times of his life, but, taking these points into account, she did not accept that the acts of forging or uttering the letter in order to buy the car, occurred under extenuating circumstances. The consideration of those factors make it plain that the learned Magistrate had not misdirected herself. It was plain that she appreciated that her task was to decide whether the offences were committed under extenuating circumstances.

24 I would therefore dismiss ground 1 of the appeal

25 As to the other grounds, they are all couched in terms that the learned Magistrate failed to have "sufficient regard" to the circumstances which are listed in the grounds. It is conceded that the circumstances referred to were all expressly referred to by the learned Magistrate in the course of her reasons for decision. Grounds 1.2 to 1.4 are all complaints about the weight given to the circumstances. It is clear enough from House v The King [1936] HCA 40; (1936) 55 CLR 499 and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 that a decision will be reviewed if relevant considerations are not taken into count, irrelevant considerations are taken into account, or that the judicial officer acts on wrong principle. The question of the weight to be given to relevant considerations, however, is a matter for the Magistrate. That is why it is said, as was said in Lowndes' case, that the court will not substitute its decision merely because it concludes that on those same factors it would have reached a different decision.

26 Counsel for the appellant then argued that the last three grounds were all, in effect, directed to a complaint that the decision was one that, in the absence of some express error in the exercise of discretion, was explicable only on the basis of some undisclosed error; in other words, that the decision was manifestly excessive. That is not my view of the three grounds I am dealing with. They all complain that the Magistrate did not have "sufficient regard" to the circumstances listed in the three grounds. However, even if the grounds of appeal were that the sentences were manifestly excessive, I would dismiss the appeal. In my opinion, the sentences were not manifestly excessive. The maximum penalty for these offences includes imprisonment and $13,200 by way of a fine. Very small fines were imposed, and these reflect the strong mitigating factors. In my opinion, the decision of the Magistrate was one within the proper range of penalties appropriate to these offences.

27 However, even if I am wrong in any of my reasoning and her Worship did fall into error, then, if I were to re-exercise the discretion under s 19B, I would have concluded that this was not a case where it was inexpedient to inflict any punishment or expedient to make a probation order. The offence was not one which occurred on the spur of the moment. I accept that the appellant was under difficult emotional circumstances because of the news of his father's illness and imminent demise. The fact is, however, that the sudden news of terminal illness in a parent is something experienced by many people. I see nothing about that fact and the other circumstances of this case which would explain why a man in a senior management position would drive to his place of work, photocopy a government department letter, forge the contents of the letter, and then send it to a place of business for them to use in relation to a financial transaction. That kind of conduct must be disapproved of by the courts.