Criminal Law - Crown appeal against sentence - grounds of appeal not raised before trial judge

Criminal Law - sentence - procedure after plea of guilty - need to indicate whether or not accused convicted - where accused conditionally released, need to specify whether under s. 556A or s. 556B Crimes Act, 1900 (N.S.W. )

Criminal Law - sentence - penalties for embezzlement and stealing - principles to be applied - deterrence - considerations for suspended sentence - s. 556B Crimes Act, 1900 (N.S.W.)

Crimes Act, 1900 (N.S.W.)

Solicitors for the Appellant: Crown Solicitor, Administration

of Norfolk Island

Counsel for the Respondent: S.E. Herbert

Solicitors for the Respondent: Legal Aid Office (Queensland)

2. Set aside the orders made by Morling C.J. and order that the respondent be released from the recognisance entered into pursuant to those orders.

3. Order that the respondent be convicted of each of the offences charged in the indictments.

4. Order that in respect of each of the offences charged, pursuant to the provisions of s. 556B(1)(b) of the Crimes Act, 1900 N.S.W.) in its application to the Territory of Norfolk Island, the respondent be sentenced to imprisonment for three years but direct that the respondent be released upon his entering into a recognisance in the sum of $500.00 (five hundred dollars) that he will be of good behaviour for a period of five years from 9 October 1990.

5. Order that in respect of the offence of embezzlement of the sum of $18,981.00, the recognisance include the condition that the respondent pay the Administration of Norfolk Island the sum of $1,899.84 within seven days.

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

In the Supreme Court of Norfolk Island, Francis Robert Gillan, the respondent, pleaded guilty to four charges of embezzling money, the property of the Norfolk Island Administration ("the Administration") in the total sum of $56,853 and to a charge of stealing $8,000, the property of the Norfolk Island R.S.L. Club. In sentencing the respondent, Morling C.J. said that the offences took place over a period of approximately 18 months; that the respondent was in a position of trust in the Administration and the R.S.L.; that in these circumstances, except in a "quite exceptional case", a sentence of imprisonment would be called for; but that, for reasons which he then gave and to which we will return, he had decided not to sentence the respondent to a term of imprisonment. Morling C.J. said:

"Under all the circumstances Mr Gillan, I defer passing

sentence upon you and order your release upon you entering into

a recognisance in the sum of $500 to be of good behaviour for a

period of five years and to appear for sentence if called upon

to do so for any breach of this recognisance.

It is a further condition of the recognisance that you pay the

sum of $1,899.84 to the Administration of Norfolk Island within

three months from this date."

2. The Crown now appeals to this Court on the grounds that: (1) the penalty imposed was manifestly inadequate; (2) the Court had failed to indicate whether the respondent was convicted of some or all of the offences charged; (3) the Court had failed to indicate whether, in deferring the passing of sentence, the Court, by virtue of the Crimes Ordinance 1960, was proceeding pursuant to the provisions of s.556A or s.556B of the Crimes Act, 1900 (N.S.W.) in their application to the Territory of Norfolk Island; and (4) the Court had placed undue weight on certain matters and had failed to take into account or give due weight to certain other matters. The Crown now seeks an order setting aside the sentence imposed and, in lieu thereof, orders recording convictions and imposing fresh sentences.

3. In the Supreme Court, counsel then appearing for the respondent conceded that, in the majority of cases, a custodial sentence is imposed for offences such as these, but submitted that the Court had a discretion to impose a non-custodial sentence even for very serious cases of stealing as a servant. He referred to decided cases where either a probation order or a community service order had been imposed. For his part, the Crown Solicitor submitted that the question of general deterrence was a matter seriously to be taken into account.

4. The reasons given by Morling C.J. for not imposing a custodial sentence may be summarised as follows: most of the money embezzled and all the money stolen had been paid back; a favourable pre-sentence report by the Queensland Corrective Services Commission had recommended against a custodial sentence; the monies had been embezzled or stolen by the respondent in a "foolish endeavour to prop up his wife's uneconomic business" and thus for her creditors and "not for his comfort or advancement"; the respondent could not have contemplated that his conduct would not be discovered; the respondent had suffered a period of depression at the time; the respondent's past good conduct; the "great personal, financial and other losses...sustained by (the respondent) as a result of his offences. He has had to sell his home and leave the Island...(H)e and his wife feel that they cannot return...and that is a very serious deprivation"; the respondent's valuable, voluntary community service; the respondent's creditable history of caring for, and supporting, a number of foster children, including a severely handicapped child.

5. As has been noted, the respondent had moved to Brisbane to live. A pre-sentence report was obtained from the Queensland Corrective Services Commission. The report, dated 27 September 1990, concluded as follows:

"10.4 At all interviews Gillan presented as being honest and

sincere. He indicated his amenability to any form of

Community-Based Order and any special conditions which

may be attached to such an Order.

10.5 Given the abovementioned information, it is respectfully

recommended that Gillan be admitted to probation on this

occasion."

6. By a letter dated 3 October 1990, the Commission stated:

"Our Service has been requested...to clarify whether the

services of the Queensland Corrective Services Commission can

be made available for the supervision of probation ordered on

Norfolk Island.

We have referred the question to the Solicitor General's Office

and have been advised that administrative arrangements exist

between the States for the transfer of Probation Orders

interstate. The status of Norfolk Island as a Territory can be

considered within this framework and accordingly our facilities

would be available, should the Court so order, for the

supervision of Francis Robert GILLAN.

Community Service is not able to be transferred because of

limitations on workers compensation covering offenders

performing community service."

7. In dealing with this aspect of the matter, the learned Chief Justice said:

"I have considered whether this is an appropriate case for the

making of a Community Service Order or a Probation Order. The

advice I have received from the Queensland Corrective Services

Commission is that it is impracticable for me to make a

Community Service Order because Mr Gillan is now living in

Queensland. The Queensland authorities' advice (is) that there

would be technical difficulties in enforcing such an order

outside Norfolk Island. As to the making of a Probation Order,

I can see no useful purpose in making one. The defendant is

now in regular and gainful employment which is likely to

continue. He is living with his wife and, under these

circumstances and having regard to his past history, the making

of a Probation Order would not achieve any purpose,

particularly as I propose to place the defendant upon a bond to

be of good behaviour for a lengthy period."

8. The offences in question are those created by ss.160 and 117 respectively of the Crimes Act in its application to the Territory. By s.160, it is provided, relevantly, that a person employed by the Commonwealth or the Administration who fraudulently embezzles and disposes of any property so entrusted to him shall be liable to penal servitude for 10 years. By s.117, it is provided, relevantly, that a person who commits simple larceny shall be liable to penal servitude for five years.

9. Section 556A of the Crimes Act deals with the conditional release of offenders without proceeding to conviction. It provides, relevantly, that where the Court is satisfied that a charge is proved but is of the opinion, having regard to the matters there specified, that it is inexpedient to inflict any punishment, or any punishment other than a nominal one, or that it is expedient to release the person on probation, the Court may dismiss the charge, or without proceeding to a conviction, order that the person be discharged upon giving security as there specified.

10. Section 556B of the Crimes Act also makes provision for the conditional release of offenders, but upon different terms. It provides, relevantly, that where a person is convicted of an offence, the Court may, by order (a) release the person without passing sentence on the person giving security as there specified; or (b) sentence the person to a term of imprisonment but direct that the person be released, upon the giving of security as provided in (a) either forthwith or after the person has served a specified part of the term imposed.

11. It is convenient to deal at the outset with the second and third grounds of appeal.

12. As has been noted, the Crown appeals on the grounds that the Supreme Court did not order that a conviction be recorded (Ground 2) and did not indicate that the Court was exercising one of the powers conferred by s.556A or s.556B of the Crimes Act (Ground 3).

13. In our opinion, there is considerable force in these contentions, which are not contradicted by the respondent.

14. The procedures which should be followed by a trial judge where an accused person's plea of guilty is accepted were described by Barwick C.J. in Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293 at pp 302-3. Where no question of utilizing s.556A is in contemplation, the trial judge should expressly indicate that the accused is convicted and should do so before proceeding to make any order in relation to that conviction. If the judge decides to use the power given by s.556A, he or she should direct that no conviction be recorded and then proceed to make an order under the section. We think that similar procedures should apply in respect of s.556B.

15. In the present case, it is common ground that in none of the submissions of the parties on sentence, the remarks on sentence or the orders made, was there any specific reference to whether the Court was proceeding to a conviction, or to whether either s.556A or s.556B was to be utilized. We agree, with respect, with Barwick C.J. that it is appropriate that, in sentencing an accused person, a trial judge state explicitly whether a person is, or is not, to be convicted and whether the powers available under s.556A or s.556B are to be exercised.

16. The questions that the Crown raises by these grounds were not the subject of any submissions before Morling C.J. and, as was accepted by counsel who appeared for the Crown before us, it would not be right if those grounds provided the means whereby, on a Crown appeal against sentence, the respondent was exposed to the jeopardy of a more severe sentence: See R. v. Tait and Bartley (1979) 24 ALR 473 at pp 476-7. This consideration has added force where a sentence of imprisonment was not imposed by the sentencing judge and where the Crown submits, on appeal, that a sentence of imprisonment ought to have been imposed.

17. We therefore turn to consider the ground that the penalty imposed was manifestly inadequate (Ground 1) and the ground that asserts that undue weight was given to some matters and the other matters were not taken into account or were not given due weight (Ground 4).

18. The offences were, as Morling C.J. recognised, very serious. The sums of money involved were substantial and the offences were committed over a period of approximately 18 months by a person who held positions of trust in the Administration and as Treasurer of the Norfolk Island R.S.L. Club. Those positions of trust were abused.

19. As we have noted Morling C.J. said that in such circumstances, except in a quite exceptional case, a custodial sentence of imprisonment would be called for, not only as a mark of the Court's and the local community's serious view of the offences but also as a deterrent to others. That conclusion was not attacked by counsel for the respondent, and it is, in our respectful opinion, plainly correct.

20. The element of deterrence is of particular importance where offences are committed in the circumstances revealed in this case. Morling C.J. clearly placed considerable weight upon this aspect but, essentially for reasons personal to the respondent, considered that this was a case in which the ordinary result should not follow.

21. Conscious as we are of the width of the discretion that a sentencing judge has and of the care with which Crown appeals against sentence must be approached, we are of the view that the relationship between the orders made and the offences themselves is such as to demonstrate an error in the sentencing process. In our view, Morling C.J. must have attached undue weight to circumstances personal to the respondent in determining that a sentence of imprisonment need not be imposed. We consider that the circumstances that his Honour took into account could not justify the conclusion, at that stage in the sentencing process, that a sentence of imprisonment should not be imposed. The circumstances of the respondent were powerful matters for consideration but not so powerful as to be extraordinary. In our view, the penalty imposed was manifestly inadequate. This appeal is of importance because it is only infrequently that the Supreme Court of Norfolk Island is called upon to pass sentence for offences involving dishonesty; most such cases are dealt with by magistrates.

22. This is a case in which an appeal by the Crown should be allowed and it follows from what we have said that we would allow the appeal on Ground 1.

23. Having regard to the ordinary range of penalties for offences of this nature, we consider that the proper sentences in the circumstances are sentences of three years' imprisonment on each of the five charges, such sentences to be concurrent.

24. Counsel for the respondent submitted that if the Court were to allow the appeal and to impose sentences of imprisonment, those sentences might be suspended pursuant to s. 556B(1)(b) of the Crimes Act. Although it is of course for the Court to determine the appropriate sentence, we note that counsel for the Crown submitted that such a course would be appropriate in the circumstances of this case.

25. Obviously enough, s. 556B(1)(b) contemplates that there will be cases in which it will be appropriate to sentence a person to a term of imprisonment but in which, notwithstanding the appropriateness of that sentence, it will be proper to direct that the person be released forthwith. In such cases, having determined that a sentence of imprisonment must be imposed and then what the proper term of imprisonment should be, the Court has to decide whether it would be appropriate or inappropriate to suspend the term: See Weetra v. Beshara (1987) 29 A Crim R 407 at 414-5 per Prior J., with whom O'Loughlin J. agreed.

26. We are of the view that the circumstances personal to the respondent to which Morling C.J. referred are such that it is appropriate that the respondent be released pursuant to s. 556B(1)(b) and that he be released forthwith. He was a person of previous good character. The consequences of his actions to him and to his wife have been very severe; they include financial ruin, the sale of the matrimonial home and his leaving the Island in shame. Moreover, as his Honour pointed out, the evidence is that the respondent is in regular, gainful and respectable employment which is likely to continue. Of the large sum stolen only $1,899.84 remains to be repaid. The respondent, who is now aged 47 years, will have to rebuild his life and should have an opportunity to do so. It seems most unlikely that he will offend again.

27. The element of general deterrence will, we think, be satisfied in this case by the sentences of imprisonment we consider ought to be imposed. In Elliott v. Harris (No. 2) (1976) 13 SASR 516, Bray C.J. pointed out, at p 527, that it is quite wrong to regard a suspended sentence as real ly no punishment at all. As his Honour said, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves for a person's record and his future. Whilst, under the Crimes Act, a person does not automatically serve the term of imprisonment imposed in the event of a breach of the terms of his release, very much greater stigma attaches to a sentence of imprisonment, albeit one that is suspended in its operation, than to an order for release without passing sentence. These circumstances, and the likely perception of these circumstances in the Norfolk Island community, bear directly upon the deterrent impact of the sentence.

28. For these reasons it is not to the point that the respondent presently retains the liberty he had when Morling C.J. made the order deferring sentence. His present situation will be, and will be perceived to be, quite different. In this regard it may be noted that in R. v. Voegeler (1988) 36 A Crim R 174, the Full Court of the Supreme Court of Victoria allowed a Crown appeal against a sentence of imprisonment suspended pursuant to s. 13 of the Alcoholics and Drug-dependent Persons Act, 1968 (Vic.) and increased the terms of imprisonment but again suspended the sentence pursuant to s. 13.

29. Counsel for the appellant initially submitted that a community service order should be made in addition to a suspended sentence of imprisonment. It appeared, however, this might involve some practical difficulties given that the respondent no longer lives on Norfolk Island. In the circumstances, we do not think it necessary to determine whether these difficulties might be resolved because we consider that the sentence we propose will be sufficient of itself.

30. The orders we will make will take into account the matters raised by Grounds 2 and 3.

1. The appeal be allowed.

2. Set aside the orders made by Morling C.J. and order that the

respondent be released from the recognisance entered into

pursuant to those orders.

3. Order that the respondent be convicted of each of the offences

charged in the indictments.

4. Order that in respect of each of the offences charged, pursuant

to the provisions of s. 556B(1)(b) of the Crimes Act, 1900

(N.S.W.) in its application to the Territory of Norfolk Island,

the respondent be sentenced to imprisonment for three years but

direct that the respondent be released upon his entering into a

recognisance in the sum of $500.00 (five hundred dollars) that

he will be of good behaviour for a period of five years from 9

October 1990.

5. Order that in respect of the offence of embezzlement of the sum

of $18,981.00, the recognisance include the condition that the

respondent pay the Administration of Norfolk Island the sum of

$1,899.84 within seven days.