Federal Court of Australia|1994-03-09|Before: Spender J

Peter James Mcdonald v R [1994] FCA 956; (1994) 120 ALR 629 (1994) 48 FCR 555 (1994) 71 A Crim R 370 (9 March 1994)

Criminal Law - sentencing - serious "white collar" crime involving person in position of trust - whether long gaol sentence was inevitable, whatever the subjective factors, on the basis that the greatest weight must be given to general deterrence - analysis of general deterrence in such cases - whether subjective factors can be reflected in relatively short non-parole period - "totality" principle where there is a number of offences, some tried in New South Wales and some in the Australian Capital Territory - discussion of the totality principle - special application of the principle to a first period of imprisonment so as to avoid its crushing all hope - effect of prospects of rehabilitation - effect of guilty plea in fraud cases - method of achieving reduction of effective sentence in accordance with totality principle, use of concurrency.

Crimes Act 1914 (Cth), s. 29D

Mill v. The Queen (1988) 166 CLR 59

Livingstone Stewart (1987) 85 Cr App R 66

The Queen v. Moffat (unreported, Court of Criminal Appeal of Victoria, 14 and 15 December 1992)

The Queen v. Worts (unreported, Court of Criminal Appeal of Victoria, 2 April 1993)

Counsel for the Respondent: Mr K.J. Crispin QC with Mr S. Madden

Solicitor for the Respondent: Director of Public Prosecutions

2. The cumulative sentences of twelve months imprisonment upon each

of the eight counts of the indictment dating from 16 July 1993 and

the non-parole period of four years and three months dating from

the same date be set aside.

3. In substitution for the sentences imposed by the Supreme Court,

the appellant is sentenced to imprisonment for five years in

respect of the first count, two years in respect of each of the

second, third and fourth counts, four years in respect of the

fifth count, three years in respect of each of the sixth and

eighth counts and two years and six months in respect of the

seventh count, the sentence in respect of the first count to date

from 16 July 1993, the sentences in respect of the first and

second counts to be served consecutively, and the remaining

sentences to be served concurrently and to date from 16 July 1993.

4. In substitution for the non-parole period ordered by the Supreme

Court, the non-parole period shall be a period of two years and

nine months dating from 16 July 1993.

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

SPENDER J I have had the benefit of reading in draft form the reasons for judgment of Burchett and Higgins JJ, with which I generally agree. Since in my opinion the appeals should be allowed, I want to say a few words of my own.

2. As the learned sentencing judge correctly observed, the eight offences could not sensibly be viewed as one transaction with a view to concurrent sentencing. Each of the eight offences and the two matters on the schedule were separate matters. The first six counts and the two matters on the schedule involved misappropriation of moneys in the appellant's control which were to be invested. Counts 7 and 8 deal with offences concerning tax refunds. As the observations of the sentencing judge indicate, each of the offences was serious and some of them involve the most cynical and ruthless exploitation of the position of power and trust held by the appellant as the taxation accountant for people whom he cruelly deceived.

3. It is clear also that the sentencing judge, in imposing concurrent sentences of twelve months in respect of each of the eight counts, sought by that method to arrive at a bottom line figure which represented a proper period of incarceration for the criminality revealed by the offences. However, in my respectful opinion, it was wrong to impose equal terms of imprisonment, having regard to the disparate circumstances and seriousness of the individual offences.

4. In Mill v. The Queen (1988) 166 CLR 59, the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) quoted with approval the following passage from Thomas Principles of Sentencing 2nd ed. 1979 p 56-7:

"The effect of the totality principle is to require a sentencer

who has passed a series of sentences, each properly calculated

in relation to the offence for which it is imposed and each

properly made consecutive in accordance with the principles

governing consecutive sentences, to review the aggregate

sentence and consider whether the aggregate is 'just and

appropriate' Smith 26.11.71, 1895/C/71, (1972) Crim. LR 124.

The principle has been stated many times in various forms:

'when a number of offences are being dealt with and specific

punishments in respect of them are being totted up to make a

total, it is always necessary for the court to take a last look

at the total just to see whether it looks wrong Haslam

24.11.72, 4151/B/72; 'when...cases of multiplicity of offences

come before the court, the court must not content itself by

doing the arithmetic and passing the sentence which the

arithmetic produces. It must look at the totality of the

criminal behaviour and ask itself what is the appropriate

sentence for all the offences' Barton 6.10.72, 1546/B/72."

5. Implicit in that statement is that the sentence for each offence should be "properly calculated in relation to the offence for which it is imposed". A further passage in Thomas at 57 is relevant:

"Where the totality of the sentences does appear to be excessive

and some adjustment is necessary, it is usually preferable to

make the adjustment by ordering sentences to run concurrently,

rather than by reducing the length of individual sentences and

allowing them to remain consecutive. The Court has stated that

a series of short consecutive sentences adding up to a

substantial total is generally inappropriate; 'it is better to

pass...an appropriate sentence on each count and make those

sentences run concurrently'. Where concurrent sentences are

passed for offences of differing gravity, the sentences imposed

for the less serious offences should not be disproportionate to

the particular offences for which they are imposed, even though

the length of these sentences will not affect the total period

for which the offender is liable to be detained,"

citing R v. Smith (1975) Crim.LR 468, where the Court of Appeal constituted by Scarman LJ, James LJ and Bristow J said:

"Where the offences varied in gravity it was generally wrong to

impose equal or similar concurrent sentences."

"Where the principle falls to be applied in relation to

sentences of imprisonment imposed by a single sentencing court,

an appropriate result may be achieved either by making

sentences wholly or partially concurrent or by lowering the

individual sentences below what would otherwise be appropriate

in order to reflect the fact that a number of sentences are

being imposed. Where practicable, the former is to be

preferred."

7. In the circumstances, it falls to this Court to exercise the sentencing discretion afresh. I am in agreement with the sentences proposed by Burchett and Higgins JJ, as I am with the proposal for the non-parole period. Such a course would represent in my opinion a proper period of incarceration for the total criminality involved in the various counts. I agree with the orders proposed by their Honours.

BURCHETT and HIGGINS JJ This is an appeal against sentence. It concerns the role of general deterrence, and its relationship with the totality principle, in the case of serious crimes of fraud and defalcation committed by a professional man, in this case a public accountant and tax agent.

2. The appellant, who conducted a busy accountancy practice in Canberra, committed, over a period of about four years from some time in 1988, a series of frauds and defalcations. He was charged with eight counts of theft, contrary to s. 99 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory. He pleaded guilty before the Magistrate, a plea to which he adhered before the Supreme Court, where he also asked that two further matters be taken into account. The total amount involved, not including the sum of $36,000 in respect of the two scheduled offences, was about $632,000, of which $522,000 was irrecoverable.

3. During the same period, in December 1989 and January 1990, the appellant had also defrauded the Commonwealth Bank of Australia of three sums adding up to $951,000. It was the defrauding of the Bank which first came before a court, when he was tried in the District Court of New South Wales upon three counts under s. 29D of the Crimes Act 1914 (Cth). After conviction by a jury, he was sentenced by Gallen DCJ, on 22 October 1992, to concurrent terms of five years imprisonment on each of the three counts, with a non-parole period of two years, the sentences and non-parole period all dating from the date of sentence. In the course of his sentencing remarks, Judge Gallen made it clear that he thought Mr McDonald, who had previously borne an unblemished reputation, would be "unlikely to offend in this manner again". The moneys in question had been borrowed for the purposes of a blood stock breeding venture, which had totally failed when blood stock prices dropped disastrously. Judge Gallen said that Mr McDonald had been "fully intending to repay moneys fraudulently borrowed from the Commonwealth Bank of Australia ... within a period of three or four months", but had been unable. He said: "Although there is evidence of numerous acts of deception, ... it seems to me to some extent that the accused was rashly caught up in a situation which more and more got beyond his control." Judge Gallen concluded that Mr McDonald should be sentenced on the basis that:

"(I)t is my view that if you pay your debt to society by

serving these sentences there is still a good future open to

you. You have got capacity, and you have got support from

your family and from your very good friends that I am sure

that you have."

4. As a result of the trial and imprisonment in New South Wales, there was a delay of some months in the proceedings in the Australian Capital Territory. The appellant came before Gallop J on 19 and 20 July 1993. The evidence disclosed that the appellant, who was born on 19 November 1948 and had worked for a number of years until June 1980 with the Australian Taxation Office, had left that office to work in the accountancy firm, in Canberra, of a man named Coombes. After some time, the appellant became a partner. Then in September 1983, at a time when he had invested all his accumulated long service leave and superannuation entitlement in the business, as well as a further sum of $35,000 lent to Mr Coombes, he discovered that Mr Coombes had been guilty of a series of defalcations. Mr Coombes retired from the firm, and gave Mr McDonald an acknowledgment in writing that he alone had been responsible for the withdrawal of trust funds without authority; but the appellant took the view that the whole of his investment in the business would be lost unless the moneys taken by his partner were recouped. In any case, he may well have been civilly liable: Mann v. Hulme [1961] HCA 45; (1961) 106 CLR 136 at 141. He was able to obtain approximately $100,000 from Mr Coombes, but the balance he borrowed personally, a sum of over $200,000. He had not realized at first that the amount would be so large.

5. The practice prospered, but Mr McDonald became involved, over the period between 1985 and early 1988, in an outside business venture, a wholesale meat business, referred to in evidence as Aussie Meats. That venture failed, costing Mr McDonald the $50,000 he had invested in it, and an additional amount in excess of $200,000 which he was required to pay under a personal guarantee he had given to cover its debts. He raised the money by borrowing.

6. Then, over a period from 1988, Mr McDonald deposited moneys clients had provided for investment with an investment business referred to as Property Growth Securities. The attraction appears to have been high interest rates, but the deposits were not secured, and something like $200,000 was lost. Most of these investments were unauthorised, and Mr McDonald was required to reimburse clients whose funds had been used.

7. The learned Judge did not draw the conclusion that the large misappropriations, which occurred from the end of 1988 onwards, were in any way related to the burden accepted by the appellant of the repayment of over $200,000 taken by his former partner. That had been five years earlier. However, it does seem to us that it is unlikely the apparently rash ventures undertaken by the appellant, beginning with Aussie Meats in 1985 and ending in the adoption of fraudulent means to stave off financial collapse, were completely unrelated to his need to repay the borrowings incurred at the end of 1983.

8. However that may be, as Gallop J said: "By 1988 he was in deep financial trouble because of those ventures". He succumbed to the temptation to seek relief from his difficulties by the use of clients' moneys. The Judge summarized the facts as follows:

"The First Count:

On 30 September 1988 Dennis Clifford Walters consulted the

accused as a client and sought advice about the investment

of $300,000.

The accused advised Walters that he held a trust account

with the Canberra Building Society which could earn a

slightly higher interest rate than normal due to the

collective investments he held on behalf of other clients.

Pursuant to that advice Walters handed the accused a bank

cheque for $300,000 for investment in accordance with the

accused's recommendation. The cheque was deposited to the

accused's trust account with the Canberra Building Society.

Between 30 September 1988 and 7 October 1988 the accused

disbursed those funds for his own purposes contrary to

Walters' instructions.

Notwithstanding that the accused no longer held Walters'

investment, he continued to meet the interest payments on

the investment out of his own trading account and by using

other clients' money repaid certain amounts at Walters

request. The end result was that Walters suffered a loss of

$170,000 on his investment of $300,000.

Second Count:

The accused was appointed accountant for the Oak Barrel

Winery Pty Limited. One of his assignments was to establish

the superannuation fund. Various sums were paid into the

superannuation account from time to time. On 1 February

1988 the accused received from the company a cheque for

$27,000 payable to himself with instructions that he invest

the money in the superannuation fund. The cheque was

deposited into the accused's Canberra Building Society trust

account on 2 February 1988. The proceeds were drawn on 11

February 1988 contrary to the client's instructions.

Third Count:

A client named Ken King was introduced to the accused in

November 1988 by an existing client. The accused agreed to

assist King with investment advice and received various sums

from King for transfer to the Canberra Building Society. On

20 September 1989 $15,000 was paid into the accused's

Westpac account with instructions that the accused withdraw

the funds from the account and invest them with the Canberra

Building Society. The funds were never invested. Instead,

the accused withdrew the moneys in a series of transactions

and applied them to his own purposes.

Fourth Count:

On 22 November 1989 King deposited a further $16,000 in the

accused's Westpac account with instructions to invest the

moneys on King's behalf with the Canberra Building Society.

The moneys were never paid to the Building Society in

accordance with the instructions and were applied by the

accused for his own purposes. On inquiry from King the

accused gave a number of false excuses for the accused's

cheque payable to King being dishonoured.

(The scheduled offences both relate to the client King. On

31 January 1991 King deposited two cheques totalling $15,000

on the same instructions to invest with the Canberra

Building Society. The funds were at no time invested with

the Building Society. Instead, the accused withdrew against

the funds for his own purpose. Likewise, there was a

further sum of $21,000 paid by King to the accused for the

same investment purpose. The moneys were never invested but

were applied by the accused for his own purposes. However,

$16,122 was deposited by the accused in King's Commonwealth

Bank account at Ulladulla on 7 November 1991.)

Fifth Count:

The accused met Margaret Brannan and her husband before the

husband's death in 1985. The accused became a trusted

friend of Mrs Brannan. On 4 January 1991 Mrs Brannan

deposited $128,000 with the accused with instructions to

invest it on her behalf with the Canberra Building Society.

Instead, he wrote out 10 cheques for his own use and by 16

January 1991 he had used up all Mrs Brannan's funds.

Sixth Count:

The client Graham Jurd had been an acquaintance of the

accused for several years prior to his approaching the

accused on 23 August 1990 for advice on the investment of

$65,000. The accused suggested investment with Randall

Pacific Property Trust and/or the Northern Securities Trust

and showed Jurd the prospectuses for both trusts. Jurd

wrote a personal cheque payable to the accused for $65,000

with instructions to invest $30,000 in one and $35,000 in

the other trust. Jurd advised the accused that the

investment was his sole source of income.

The next day the accused caused Jurd's cheque for $30,000 to

be paid into the account of one of the unsuccessful business

ventures, namely, a bloodstock breeding syndicate, and the

cheque for $35,000 to be paid into his own personal account.

Not only were the moneys in the bloodstock syndicate wholly

lost, but also the $35,000 was used for the accused's own

purposes contrary to Jurd's explicit instructions.

Seventh Count:

Mrs Colleen Van Cornewal was a client of the accused. On 12

June 1991 he advised her that she had been assessed as owing

the Australian Taxation Office the sum of $33,680 and that

she should draw a cheque in his favour for $37,000 as he

might have been able to negotiate with the Tax Office to

have the assessment reduced. She duly handed him a cheque

for $37,000 with specific instructions that the funds were

to be used to satisfy her taxation liability immediately the

correct amount was ascertained with the remainder to be

returned to her. No payment was ever made to the Australian

Taxation Office to reduce her liability in accordance with

her instructions.

Eighth Count:

John Biggs retained the accused as his accountant for the

preparation of his taxation return. On 25 March 1992 the

accused informed Biggs that settlement had been reached with

the Australian Taxation Office on Biggs' outstanding debt in

the sum of $47,760.00. The accused further advised Biggs

that the full amount was to be paid by the close of business

that day.

Biggs attended the accused's office with a bank cheque,

payable to the Deputy Commissioner of Taxation. The accused

said the cheque was to be payable to the accused's firm,

because he had already issued a cheque from his own account,

and required the funds from the client to cover his own

cheque. When Biggs queried this procedure, the accused

telephoned the Australian Taxation Office and informed Biggs

that it was too late to stop the initial cheque, so as to

replace it with Biggs' cheque.

Biggs then caused a fresh cheque to be drawn in favour of

the accused's firm, and delivered it to the accused later

that day. At no time was a cheque drawn by the accused in

the sum of $47,760.00, payable to the Australian Taxation

Office, nor has any payment been received from the accused

on behalf of Biggs.

The bank cheque handed to the accused by Biggs was, in fact,

deposited in the accused's office account and used to reduce

an outstanding overdraft."

9. As the sentencing Judge pointed out, these offences disclose a series of acts of gross dishonesty continued over a period of some years. They are the more grave because of the betrayal of trust, and the misuse of the privileges of a professional position, which they involve.

10. The appellant is a married man with two children, a son aged 16 and a daughter aged 12. Apart from the matters for which Gallen DCJ sentenced him, he has no previous convictions of any sort. As Gallop J said:

"He has held many positions of respect and influence since he

came to Canberra. A large number of impressive character

witnesses gave evidence of his high standing personally, and

generally. Some of those witnesses had been his clients,

and they deposed to his integrity and trustworthiness.

They ranged from prominent sportsmen to clergy, to

politician, to former high ranking public servant, to

accountants and to a barrister."

11. During the nine months which had elapsed since his imprisonment, up until the time he was dealt with by the further sentences which are under appeal, his family had made many weekend visits to the appellant at Goulburn Gaol. His wife was managing to keep the home together by working at three different jobs, and despite the stress, his marriage had remained stable. The children were still at school. His family's continued regard for him is in itself a testimony to his character, apart from the matters that have led to his convictions, and the character evidence called on his behalf, to which his Honour referred, included evidence of significant community activities involving the devotion by him of considerable amounts of time and energy, particularly in the areas of youth and sport.

12. The Judge accepted that the appellant was "devastated" by his crimes and, in any case, that his pleas of guilty at the committal stage "indicate(d) ... his real contrition for the offences". Also, that in addition to his personal shame he was "suffering real concern for the effect of his behaviour on his wife and children".

13. The Judge acknowledged that the appellant stands in no need of personal deterrence. That, it will be recalled, was also observed by Gallen DCJ when he sentenced the appellant, and plainly enough it follows from the acceptance of his genuine contrition and concern for the effect upon his family. It also follows, as an inevitable consequence, from the nature of the convictions which virtually debar him from ever resuming the practice of his profession. His Honour emphasized this. But the fact that his contrition will not be put to the test of the same temptation should not deny its importance in a just sentence, tempered by that measure of mercy which the law allows. It has been accepted that he is genuinely contrite, and this is an important factor in his case. Furthermore, the loss of his profession is itself a weighty punishment, to be taken into account in deciding how great his other punishment must be.

14. We now come to what seems to us to be the crucial passage in the learned Judge's reasoning upon sentence. He said:

"It was submitted on his behalf that as he is due to be

released in October 1994, it would be proper for this court

to view the behaviour for which he is now serving sentences

and the behaviour which is the subject of the present

matters, as one course of conduct and accordingly to

sentence the accused so that he will earn his release not

too far beyond his present release date.

I cannot accept that submission. Every one of the clients

who was defrauded over the period of 3 1/2 years was the victim

of separate acts of gross dishonesty. In accordance with

well established authority, it is appropriate to inflict

separate judgments for punishments in relation to each

conviction.

They should be cumulative, because they form part of a

pattern of criminal behaviour. It is apparent that of the

1200 to 1400 clients being serviced by the accused, he had

to make a judgment when the temptation arose, whether he

used that client's money, contrary to their instructions.

Furthermore, in the exercise of the sentencing discretion,

it is, in my opinion, appropriate in a case of this nature,

to give the greatest weight to the element of general

deterrence.

It is not likely that the accused needs personal deterrence.

He will not get the opportunity to offend in this way again,

because his career is at an end. It is not likely that he

could obtain the sort of employment which would give him

access to such large amounts of money, on trust. Those

scenarios are just not probable, but professional people, in

whom clients put their trust, such as accountants, lawyers,

insurance agents, real estate operators, and others, should

keep in mind that if they defraud their clients of large

sums of money, long gaol sentences are inevitable, no matter

what their background."

15. After referring to the appellant's "excellent" conduct in prison, the Judge concluded:

"In respect of the eight counts of the indictment, I sentence

the accused to twelve months imprisonment on each count,

cumulative upon each other. I fix a period of four years,

three months, during which the accused is not to be eligible

to be released on parole. The head sentences and non-parole

period will date from 16 July 1993."

16. The effect of these sentences was to increase the total period of the head sentences from the five years fixed by Gallen DCJ to eight years and nine months, and the total non-parole period from two years to five years. It will be observed that the proportionate increase in the non-parole period (which was increased by two and a half times) is very much greater than the proportionate increase in the total period of the head sentences. The Judge did not make any comment upon this, or explain it.

17. The shorter non-parole period, by comparison with the effective head sentence, ordered by Gallen DCJ is in keeping with the subjective factors, and it reflects particularly the appellant's genuine contrition, the likelihood (supported by his previously unblemished record and the strength of his family ties) that he will not offend again, the claims upon justice of his wife and children (limited though those must be), and a recognition that his actual punishment is far heavier than the time spent in gaol. Attention was drawn to some of these factors in Corbett (1991) 52 A Crim R 112 at 117, where the Court of Criminal Appeal of New South Wales (Gleeson CJ, Priestley JA and Matthews J) said:

"(A) feature of past sentencing for `white collar' crimes

involving fraudulent abuse of trust, and sometimes involving

fraud on the public purse, has been the imposition of

lengthy head sentences, but with a substantial gap between

head sentence and non-parole periods or minimum terms. This

has probably been the consequence of a desire on the part of

the courts, on the one hand, to reflect the need for general

deterrence and, on the other hand, to give due account to

the fact that the offenders involved frequently have no

prior criminal history, are unlikely to re-offend, and have

good prospects of rehabilitation."

18. In the extensive passage which has been quoted, the Judge indicates it was put to him that the court should view the conduct involving the bank, and the conduct involving the appellant's clients, as a whole, and that this should reduce the period to release. The submission was rejected. The Judge rightly pointed out that the offences were separate acts of gross dishonesty, so that they could not be seen as one transaction for the purposes of a well known rule relating to concurrent sentencing. He expressed the opinion that it was "appropriate in a case of this nature to give the greatest weight to the element of general deterrence". In so dismissing the submission that had been put, his Honour made no specific reference to an alternative and stronger basis on which it could be supported. As was emphasized by the Court of Appeal in Bocskei (1970) 54 Cr App R 519 at 521, "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive". See also R v Holder (1983) 3 NSWLR 245 at 260, per Street CJ. The principle applies just as much to the effective non-parole period fixed in respect of a series of consecutive sentences as to the total of the sentences. That this is so is made plain by the joint judgment of the Full Court of the Supreme Court of Victoria (McInerney, Menhennitt and McGarvie JJ) in R v. Tutchell [1979] VicRp 24; (1979) VR 248 at 252-253.

19. The principle of totality is discussed in some detail in D.A. Thomas, Principles of Sentencing 2nd ed (1979) at 56-61 and in R.G. Fox and A. Freiberg, Sentencing State and Federal Law in Victoria (1985) 372-373, 375, and was approved by the High Court in Mill v. The Queen (1988) 166 CLR 59 at 62-63, where a key passage from Thomas's work was adopted in the judgment of the Court. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved. The principle applies to the later of two courts, whether or not within the same jurisdiction, where the sentences are imposed by different judges: MacDonald (1990) 52 A Crim R 349 at 351-352. Any other approach may easily be exposed as wrong by a reductio ad absurdum. It could not be right, in a case involving 50 minor offences, each warranting a sentence of one year, to inflict as punishment a period of 50 years in gaol, just because consecutive sentences were required by the relevant principles of law, applied without modification.

20. When the court comes to apply the principle of totality, in a particular case where the prisoner has not previously been sent to gaol, the authorities (see Thomas, op. cit. 59-60) support the view that the accumulation of sentences now to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton's words, "hope (can) never come (t)hat comes to all" (Paradise Lost, 1:66-67). In a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed. The point applies particularly, in our opinion, to Mr McDonald, whose wife and family have shown so much loyalty to him. That suggests he is a man who may prove able to respond, to the benefit of his family and of society, if given the opportunity to rebuild his life upon honest foundations. It is only just to observe, too, that a first time in gaol, for a person of previous good character, is likely to be a severer punishment than the same period would be for a hardened criminal, or even when suffered for the second time.

21. The sentencing remarks in the present case, particularly bearing in mind the length of the non-parole period, are not consistent with this approach. The submission of counsel for the appellant was rejected without reference to the totality principle, and by reference only to the appropriateness of giving "the greatest weight to the element of general deterrence". The learned Judge also referred to the inevitability of a long gaol sentence "no matter what (the offender's) background". This seems to reject the proposition that in cases of this kind subjective factors can be allowed any real weight. One may add that in the present case there is nothing to indicate that any discount was given for the early pleas of guilty. In Livingstone Stewart (1987) 85 Cr App R 66 at 69-70, the Court of Appeal said: "(A)s in all fraud cases ... a proper discount for a plea of guilty should always be given."

22. In our opinion, the weighing of the appropriateness of the effective sentence, including the non-parole period, required by the totality principle demands a consideration of its fitness, not merely for the particular crimes viewed as a category calling for special deterrent punishment, but also its fitness as the total sentence to be imposed on this man and having regard to his circumstances. The totality principle is not just concerned with general deterrence. It is concerned with how the total punishment "fits the situation": Murrell v. R [1985] FCA 14; (1985) 58 ALR 203 at 212, per Fox J (with whom Bowen CJ agreed). Thomas op. cit., at 60 says: "The principle appears to be a general one, applying wherever mitigating factors are to be considered."

23. Nor is it correct to treat the necessity to deter crimes of fraud by persons in positions of trust as requiring, in all cases, and without regard to subjective factors, "long gaol sentences (that) are inevitable". In our opinion, the true role of general deterrence in this class of case is to impose a requirement that normally - no such rule should compel the court to ignore the special features of particular cases - a term of imprisonment will be appropriate for a significant fraud committed by a person in a position of trust. But we do not think it is at all realistic, and it is therefore unjust, to reason from this that the term of imprisonment must always be lengthy. Once a significant term in gaol is imposed, the addition of a few further years, in such a case, is unlikely to have much to do with general deterrence. (It may, of course, be required by the circumstances disclosed in a particular hearing.) For the most serious consequence of the conviction of a "white collar" offender, as indeed of many other persons, particularly for a man like the appellant, who is only in his mid forties, must be the loss of his own self respect and the suffering of disgrace and humiliation, as well as the complete loss of his previous standing in the community, his professional position, and the means of livelihood he has chosen and in which he has acquired expertise. The conviction is a personal calamity. So far as gaol is concerned, to be sent there at all is also a disaster of the greatest magnitude. These are the considerations that must loom large if a professional person is confronted by a situation inducing thought about the personal cost of committing comparable offences, and a significant period in gaol, attended by such consequences, must constitute a weighty general deterrent. Indeed, an equivalent gaol term is plainly a severer punishment for a man like the appellant than it would be for many violent criminals, who could take up much the same life upon leaving gaol as they had led before.

24. The conclusion from this is that, once it has been decided to inflict a significant gaol term, it is not likely to be useful, in fixing its precise length, to increase it by refusing to give due weight to factors such as a plea of guilty, previous good record, previous positive contributions to the community, real prospects of rehabilitation, the impact upon a prisoner's family, and the heavy weight of punishment inevitably involved in the loss of professional position and livelihood. Those matters should be given real weight (see R v. Dixon (1975) 22 ACTR 13), and it is only in the sense that the need for general deterrence will not normally allow them to reduce the sentence below a significant period of incarceration that it is right to speak of giving "the greatest weight to the element of general deterrence". This conclusion is, we think, consistent with the joint judgment of the Court of Criminal Appeal of Victoria (Crockett, Beach and Nathan JJ) in The Queen v. Moffat (unreported, 14 and 15 December 1992), where the deterrent effect of imprisonment for fraud was emphasized, but without reference to the length of the term, and the sentence actually imposed was relatively short.

25. The sentences selected in this case were subjected to a further criticism. It was pointed out that, on their face, the eight equal terms of imprisonment could not bear a real relation to the gravity of the individual offences. The circumstances disclosed by the counts differed, and the amounts involved ranged from a misappropriation of $15,000 to a misappropriation of $300,000, with an ultimate loss of $170,000. It is difficult to reconcile this with his Honour's statement that it was "appropriate to inflict separate judgments for punishments in relation to each conviction". In Thomas, op. cit. 57, it is pointed out that there are authorities deprecating the passing of "a series of short consecutive sentences adding up to a substantial total", and that "it is better to pass ... an appropriate sentence on each count and make those sentences run concurrently". See also the work by Fox and Freiberg (ubi cit. supra). This is what was done in a recent Victorian case which bears some resemblance to the present, although the amount involved in the entire series of crimes was less ($565,000), and the extenuation may have been special, for the non-parole period was only 21 months, and the total effective sentence three years and six months: The Queen v. Worts (Phillips, Harper and Eames JJ, unreported, 2 April 1993). Making sentences concurrent in order to give effect to the totality principle is also recommended by the High Court, as "to be preferred", in Mill (supra, at 63). In our opinion, it was an error not to differentiate between the offences; the Court should rather have imposed appropriate individual sentences, and then adjusted the total period of imprisonment by making some of them concurrent so as to arrive at the right effective term.

26. Having regard to the errors which have occurred, it is for this Court to fix the appropriate sentences and non-parole period. We would substitute for the sentences imposed by his Honour sentences of five years in respect of the first count, two years each in respect of the second, third and fourth counts, four years in respect of the fifth count, three years in respect of each of the sixth and eighth counts and two years and six months in respect of the seventh count. We would order that the sentences in respect of the first and second counts be served consecutively, and that the remaining sentences be concurrent with that on the first count, so that the effective sentence for all offences including those relating to the Commonwealth Bank of Australia will be seven years plus the nine months of the concurrent sentences imposed by Gallen DCJ which had elapsed when the sentences under appeal commenced. As at the date the appellant was sentenced, he had already served those nine months. In that circumstance, we would order that the non-parole period be two years and nine months, to date from 16 July 1993, so that in the result he will serve a minimum of three and a half years.

Peter James Mcdonald v R [1994] FCA 956;

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Peter James Mcdonald v R [1994] FCA 956; (1994) 120 ALR 629 (1994) 48 FCR 555 (1994) 71 A Crim R 370 (9 March 1994)

Parties

Cases Cited (6)