R v BEARD

COUNSEL : Crown: M Grogan Applicant: In Person SOLICITORS : Crown: S E O'Connor Applicant: In Person CATCHWORDS : ACTS CITED : Crimes Act, s 249B(1) DECISION : Leave to appeal refused

Tuesday, 9 December 1999 REGINA v Stephen BEARD JUDGMENT

1 BARR J: The applicant Stephen Beard seeks leave to appeal against a sentence imposed upon him by Judge O'Reilly, QC in the District Court. On 30 November 1998 the applicant pleaded guilty to one count under s 249B(1) Crimes Act that as an agent of his employer bank he corruptly received a benefit as an inducement for providing certain confidential information the property of the bank. The maximum penalty for such an offence is imprisonment for seven years. His Honour sentenced him to imprisonment for two years and provided for a minimum term of one year and additional term during which the applicant should be at large on probation of one year. 2 The applicant was employed by Advance Bank between November 1993 and March 1997. In January 1995 he was appointed subpoena clerk in the records and administration department of the bank and his duties included obtaining documents and information required under subpoenas and audit certificates. His duties required him to have access to the bank's computer records, including records of account application forms completed by clients or prospective clients of the bank. Those forms contained confidential information about individual applicants, including the particulars of driving licences, work, financial and personal matters. 3 During 1995 the applicant spent some time in Parramatta Gaol, apparently because he was refused bail. There he met a man calling himself Christopher Mishwills, who learned where the applicant worked. Mishwills must have spoken about the applicant to a man known in these proceedings only as Bill. Bill told a man called Christian Curut. Curut telephoned the applicant at work and invited him to meet him at a nearby cafe. The applicant did so and there occurred the first of a number of meetings during which the proposition was put to the applicant that he would be rewarded if he obtained confidential information about clients of the bank and made them available. It was made clear by Curut that he was acting on behalf of the man Bill. Apparently Curut never knew his real name and his Honour accepted that the applicant never knew Bill's real name. The story was that Bill was setting up a business for the distribution of products of a certain kind and that the provision of information of the kind requested would assist in the identification of customers who might be approached to buy goods from the business. The applicant was to receive money for the provision of information and also part time work if the business were set up, possibly leading to full time employment. 4 As his Honour found, the applicant knew from the start that it would be wrong to agree to what he was being asked to do. Nevertheless, after a short initial period of reluctance, he agreed. 5 Further meetings followed and the applicant was eventually introduced to Bill. Specifications were made for particular kinds of information required. For example, Bill was interested only in male clients. As Curut told his sentencing judge, Judge Luland, QC, that was because he was going to impersonate the client whose personal particulars were being made known. The applicant complied with these requests and altogether over the period between October 1996 and January 1997 passed on information about approximately fifty clients of the bank, including information about the credit balances of accounts held by those clients. 6 The applicant began to receive sums of money and, if he had not already done so, he then became aware that the object of the scheme was fraudulent. Nevertheless, he continued to participate. He frankly admitted in due course that he had done so in order to make money. Altogether Curut and Bill withdrew a total of about $95,000 from nine of the accounts of the clients whose details had been passed on. Curut's role in the scheme was to pretend that he was the client of the bank on each occasion on which money was withdrawn. 7 In imposing sentence his Honour made a detailed reference to the sentences passed by Judge Luland upon Curut. 8 The applicant has represented himself in the proceedings before this Court. In response to a letter from the Registrar requiring him to file grounds of appeal he wrote a letter on 15 September 1999 in which he said that he would rely on the following arguments - - the sentence imposed on Curut; - the substandard investigation by the police; - the fact that his initial statement was signed not by himself but by Det Churchin; - his state of health; and - the fact that he was coerced into the commission of the offence. 9 In oral submissions the applicant said that the answers that he was recorded as having given in the taped recording of the interview with Det Churchin and in the printed transcript were not all true. Rather, the applicant had said what he believed Det Churchin wanted him to say or told him to say. He further submitted that he went along with the sentencing process on the basis of the agreed statement of facts and the material contained in the transcript of the taped interview because the man Bill had threatened his wife and child. I think that is what he must have meant by his reference in his letter to the Registrar to his having been coerced into the commission of the offence. 10 The facts upon which the applicant was sentenced were set out in an agreed statement of facts and in statements among others of Christian Curut, Stephen Anthony Sharpe the senior security investigator at the bank, and of Senior Const Churchin, which referred to and incorporated a transcript of the electronically recorded interview to which I have referred. The authenticity and accuracy of those documents was not challenged before his Honour. The challenge has been made for the first time in this Court and only by submissions from the Bar table unsupported by evidence of any kind. 11 I would not permit the applicant to challenge the authenticity of those documents in this Court in the absence of evidence. The facts of the matter seem to me to be that whatever private view the applicant may have had of the matter he was content for his barrister to deal with the matter and for the learned sentencing Judge to sentence him on the basis of the truth or the substantial truth of the facts contained in the documents which I have summarised. In my opinion the sentence should be judged for the purposes of this application on that basis alone. 12 I think that the other matters pointed to by the applicant are important for sentencing purposes, however. In so far as the applicant submits that he was coerced into committing the offence, all that is meant, I think, is that others prevailed upon him to carry out his dishonest act. If that invitation or perhaps importunity had not taken place, he would not have offended. So much was obvious to his Honour who, in referring to counsel's submissions, observed that the man Bill was at the centre of the scheme. 13 His Honour considered the health of the applicant and the sentences imposed on Curut as important and dealt with them in some detail. 14 His Honour referred to the pre-sentence report, which recorded that the author had seen a report from the applicant's medical practitioner, stating that he had suffered from ischaemic heart disease since 1996 and from anxiety and depression since September 1998 and was receiving medication for those conditions. The author noted that the applicant was fit only for light duties because of his poor health. His Honour observed that the applicant had had a heart attack in 1996 and went on to say that one of the reasons why the applicant was entitled to be sentenced to an additional term which exceeded one third of the minimum term of the sentence that he was about to impose was his state of health. 15 The applicant has told the Court that since the imposition of sentence he has suffered two angina attacks and has had to be taken into hospital. It is unfortunate that the applicant has been so affected but those matters are the concern not of this Court and not of the forensic system at all but of the Correctional Services authorities. It was with the full knowledge of the applicant's medical condition that his Honour dealt with the applicant in the way that he did. The pain the applicant has suffered since he was sentenced has been no more than might have been expected. It was allowed for in the sentence. 16 Whereas all the criminality of the applicant was able to be concentrated in the single count to which he pleaded guilty, Curut had committed a large number of individual acts and so came to be charged with many counts, each based upon an individual act. He pleaded guilty to nine counts of obtaining a valuable thing by deception, two counts of attempting to do the same, three counts of using a false instrument, five counts of making a false instrument, one count of making a false statement to obtain property and two counts of possessing a false instrument. The maximum penalties for those various offences vary between five and ten years' penal servitude. In addition, Curut asked his Honour to take into account twenty more offences of more or less the same kind. The total amount of money of which persons had been defrauded at the hands of Curut amounted to a little more than $78,000. The period of time over which he committed those offences may be taken not to have been significantly different from the period over which the applicant's criminal acts were committed. Thus, notwithstanding the number of counts to which he pleaded guilty, Curut was concerned in the same scheme as the applicant, though of course he played a different role in the execution of it. 17 Some matters of comparison between the applicant and Curut would suggest that the applicant ought to have been dealt with more leniently. For example, the applicant was forty-three years old when he committed the offence and forty-five years old when sentenced, yet he had a criminal record of only minor significance. There were convictions for only three matters of dishonesty, namely two cases of breaking, entering and stealing for which the applicant was dealt with in 1989 and for each of which he was given the benefit of a three year bond and one count of stealing for which he was dealt with in 1988 and in respect of which he was given the benefit of a two year bond. There were other offences but they were of no significance for present purposes, as implied by his Honour. On the other hand Curut was a twenty-three year old man when sentenced and had already spent a nine month minimum period in prison for fraud. The first of the offences for which he was sentenced took place within the parole period of that sentence and some of them were committed whilst Curut was on bail. They were seriously aggravating features. 18 On the other hand, Curut pleaded guilty in the Local Court and offered assistance to the authorities which, Judge Luland found, was genuine and had put Curut into great personal danger. Judge Luland fashioned a series of concurrent and cumulative sentences the effect of which was a minimum term of two years and an additional term of one year. But for the assistance the head sentence would have been five years instead of three years, and no doubt there would have been an increase in the effective minimum term as well. 19 Both prisoners were in bad health. I have already mentioned the applicant's heart condition. Judge Luland found that Curut was suffering from an inherited condition of the retina which had reduced his vision to about ten percent and observed that he would find it particularly hard to serve a prison sentence. 20 Judge O'Reilly considered all these matters but took the view that a very serious feature of the applicant's case was the breach of trust he had committed in selling private information to the detriment of his employer and the clients of his employer. His Honour observed that it would not be palatable to send the applicant to prison and then continued: But if I do not do that, it seems to me that I send the wrong message out to those who are employed in positions of trust. 21 It seems to me that his Honour was correct in identifying and emphasising the applicant's serious breach of trust. Taken with all the other objective and subjective features of the case, it well justified a sentence of the order imposed by his Honour. For the same reason, the sentence imposed on the applicant was not disproportionate to the sentences imposed upon Curut. I think that the result has been the imposition of a sentence entirely within the scope of his Honour's sentencing discretion. 22 I would refuse leave to appeal. 23 DUNFORD J: I agree with the order proposed by Barr J and the reasons which he has given. 24 HULME J: I also agree with the order proposed and with Barr J's reasons. 25 DUNFORD J: The order of the Court will be application for leave to appeal dismissed. The applicant may be taken into custody. **********

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