Sentence - Crimes Act 1914 (Cth), s.19B - inadequacy of penalty imposed by Magistrate - consideration of whether monetary penalty should be imposed as part of conditions of recognizance - substituted order for convictions to be recorded without monetary penalty.

Courts - jurisdiction of Supreme Court to hear applications for review under Magistrates Court Act 1930, para.219B(1)(g), of order made under Crimes Act 1914 (Cth), s.19B - whether Judiciary Act 1903, s.68 gives jurisdiction - it does.

Magistrates Court Act 1930, para.219B(1)(g)

Crimes Act 1914 (Cth), s.19B

Judiciary Act 1903 (Cth), s.68(2)

Knight v. Birch (1992) 106 ACTR 27

R v. Tait and Bartley (1979) 24 ALR 473

The Queen v. Osenkowski (1982) 30 SASR 212 at 213

R v. P [1992] FCA 626; (1992) 111 ALR 541 at 552

Paterson v. Fenwick at 1 (unreported, Supreme Court of the ACT, Higgins J,

Lanham v. Brake (1983) 34 SASR 578

Comptroller-General of Customs v. Grills [1992] SASC 3786; (1992) 110 FLR 431

Peel v. The Queen [1971] HCA 59; (1971) 125 CLR 447

Williams v. The King (No.2) [1934] HCA 19; (1934) 50 CLR 551

Solicitors for the appellant : The Commonwealth Director

of Public Prosecutions

Counsel for the respondent : Mr. S. Pilkinton

Solicitors for the respondent: Porter Pilkinton and Bradfield

THE COURT ORDERS THAT:

1. The Magistrate's decision be set aside and the orders

vacated.

2. On all three charges a conviction be recorded and sentence be

deferred upon the respondent entering into a recognizance in the

same terms as that set by the Magistrate.

3. In accordance with sub-s.219F(5) of the Magistrates Court

Act, the costs of and incidental to the appeal be paid by the

appellant.

MILES CJ This is an appeal by way of application for an order to review under para.219B(1)(g) of the Magistrates Court Act 1930. The appellant seeks review of the orders of a Magistrate made on 16 March 1995 in consequence of the respondent pleading guilty to charges under the Crimes Act 1914 (the Crimes Act) in which the appellant was the informant. There were two charges of offences against sub-para.76B(2)(b)(v) of the Crimes Act of intentionally and without lawful authority obtaining access to data stored in a Commonwealth computer being data which the respondent knew related to the personal affairs of some 71 persons. The earlier offence was committed on about 13 April 1994 when the respondent, who was employed at Grade ASO4 in the Australian Taxation Office (ATO), obtained the tax file numbers and personal details of some 30 persons with the same surname as himself. The later offence was committed between 2 May and 24 May 1994 when the respondent obtained various details relating to the tax affairs of 41 named persons. These two offences were punishable by imprisonment of two years. He also pleaded guilty to a charge of a third offence of taking property out of the possession, custody or control of the Commonwealth contrary to s.30 of the Crimes Act. That offence was committed between 12 April 1994 and 3 June 1994 when the respondent took home a number of files containing various original documents and printouts relating to the tax affairs of a number of companies in liquidation. That offence is punishable by one year imprisonment.

2. On the offence committed between 2 May and 24 May 1994, the Magistrate ordered pursuant to s.19B of the Crimes Act, without proceeding to conviction, that the respondent be discharged upon his entering into a recognizance self in the sum of $500 without surety to be of good behaviour for 12 months commencing on 16 March 1995. On the remaining offences, the Magistrate ordered that the charges be dismissed, also pursuant to s.19B of the Crimes Act. For completion, it should be noted that on 14 December 1994 the Magistrate had made orders to the same effect but these were set aside by this Court and the charges remitted to the Magistrate for further hearing. At the further hearing on 16 March 1995, the Magistrate made the same orders as had been made previously.

3. On behalf of the appellant, counsel submitted that the Magistrate fell into error by giving undue weight to the subjective circumstances of the respondent, failed to assess adequately the criminality of the respondent's conduct and failed to embody in the penalty any, or sufficient element, of specific and general deterrence.

4. The reasons given by the Magistrate for the decision on 14 December 1994 were brief and were not repeated on 16 March 1995. The Magistrate said that, whilst it was not suggested that breaches of s.76B of the Crimes Act were not serious, particularly where there was an extraction of information from the ATO, the case was "not a serious breach of that type of offence". The Magistrate concluded that in the present case the "personal particulars are overwhelming" so that "justice is best done by proceeding without a conviction on one of the charges and dismissing the other two". The same approach appears to have been followed by the Magistrate on 16 March 1995 when, during the course of submissions, the Magistrate remarked that it was "routine" for employees within the ATO to have access to information of the kind which was the subject of the charges under s.76B and that there was a difference between getting access simply in order to relieve boredom and doing so for financial gain, for blackmail or for some "nefarious purpose".

5. The respondent's case on sentence was set out in a letter of 7 December 1994 which he directed to the Magistrate (supplemented by an affidavit filed by leave after the initial hearing of the application for review). In the letter the respondent referred to his life long condition of myopia and the ridicule and hostility which it seemed to engender in others, including his colleagues at the ATO. He alleged that they starved him of the investigative work for which he considered himself adept and placed him in debt collection for which he was not trained. In the letter he went on to make the following allegations and explanations. In order to prepare himself for a transition to self-employment, he concentrated on building up a business selling orange juice from a stall at weekends. He took sick leave, recreation leave and leave without pay in an effort to stay long enough to qualify for long-service leave and then to retire. By April 1994 he had no duties of substance but was given access to a data base, apparently containing details relating to all Australian taxpayers. He began playing with it in order to test its capabilities. He became addicted to the system for the purpose of stress release. He obtained a printout of the name and address of every tax payer in Australia with the same surname as himself. He checked the income of certain persons whom he knew in order to assist him in choosing a suitable vocation. He obtained details of companies with which he might have had, or might come to have, commercial dealings.

6. The respondent was observed removing some of the material to which he had access from the ATO. Some of the documents taken by the respondent to his home were returned by him as requested. Others did not come to light until a search warrant was executed at his home on 3 June 1994. On 16 June 1994 he was suspended. He resigned the next day which he was intending to do anyway.

7. The respondent was referred by his general practitioner to Dr William Knox, a consultant psychiatrist, who saw him for the purposes of treatment on 21 June 1994 and on three occasions after that. Dr Knox supplied a report in which he stated that he found the respondent to be relatively obsessional and concerned about what he saw as the unfairness of the ATO both to himself and to those whom it had unfairly targeted, like New Australians. He told Dr Knox that he kept some tax files to protect himself against possible charges of incompetence and that he did not take his activities especially seriously. Dr Knox was of the view that the respondent did not feel that what he was doing was morally wrong. Dr Knox was also of the view that the respondent was trying to avoid the feeling of guilt which he associated with disappointing his parents by leaving the ATO of his own volition and was, in effect, creating a situation which would bring about his dismissal. At the same time the respondent felt that the ATO was negligent in ignoring his declining health and seeking to force him out. Dr Knox concluded that, due to his relative social isolation, the respondent had begun to exhibit a low grade paranoia in relation to his work and that his behaviour was exceptional in the particularly stressful circumstances and unlikely to be repeated.

8. The respondent was born on 13 March 1965 and has no previous convictions of any kind. He suffers from various problems with his eyes and suffered other serious illnesses as a child. His family was very protective. He does not appear to have had an active social life and has become introverted and socially restricted. An early attempt at computer engineering studies at the Canberra College of Advanced Education was unsuccessful. He joined the ATO in 1994.

9. An order to review sought by an informant or the prosecuting authority seeking to set aside a sentence or penalty imposed by a magistrate is similar to a Crown appeal against sentence as provided for by statute in all Australian jurisdictions: Knight v. Birch (1992) 106 ACTR 27.

10. The principles to be applied in this situation are stated in the well known decision of the Full Court of the Federal Court of Australia, R v. Tait and Bartley (1979) 24 ALR 473 and are binding on this Court. They are summarised in the following passage (at 476):

"An appellate court does not interfere with the sentence imposed

merely because it is of the view that that sentence is

insufficient or excessive. It interferes only if it be shown

that the sentencing judge was in error in acting on a wrong

principle or in misunderstanding or in wrongly assessing some

salient feature of the evidence. The error may appear in what

the sentencing judge said in the proceedings, or the sentence

itself may be so excessive or inadequate as to manifest such

error."

11. Although, on the face of it, the principles so stated apply to both appeals by a convicted person and appeals by a prosecuting authority, the appellate court, ever watchful for unfairness to an accused or convicted person, will be more cautious in exercising the discretion to interfere with the penalty or sentence imposed in order to increase it than it would be where the appeal was against the severity of the penalty or sentence. In Tait and Bartley this latter principle was considered to derive from what was referred to as the "double jeopardy" involved in an appeal against the leniency of a sentence. In the circumstances of the case before it, the Federal Court stressed that it would be unjust to a convicted person to expose him or her to such double jeopardy if the prosecution had not assisted appropriately in the sentencing process.

12. Another authoritative statement as to prosecution appeals is that of King CJ in The Queen v. Osenkowski (1982) 30 SASR 212 at 213:

"The proper role for prosecution appeals, in my view, is to

enable the courts to establish and maintain adequate standards

of punishment for crime, to enable idiosyncratic views of

individual judges as to particular crimes or types of crime to

be corrected, and occasionally to correct a sentence which is so

disproportionate to the seriousness of the crime as to shock the

public conscience."

13. Finally, on these general matters, there is an established practice, if not a principle, that an appellate court on a prosecution appeal against sentence will not interfere merely to adjust that sentence, even if error be shown, and that the sentence to be substituted will "often be less than a judge of the appellate court would have imposed if the matter had originally come before (that judge): R v. P [1992] FCA 626; (1992) 111 ALR 541 at 552, cf. Paterson v. Fenwick at 1 (unreported, Supreme Court of the ACT, Higgins J, No. SCA 51 of 1993, 18 March 1994).

14. Mr. Lalor, for the appellant, submitted that the present offences under consideration are in a category in which it would be very rare for the Court to find the offence proved but nevertheless, decline to record a conviction. The basis of the submission is that certain offences created by statute or regulation are so essential to the public good in a modern society that, although they do not necessarily attract heavy penalties unless there are aggravating factors, public regulation of the proscribed activity requires certainty on the part of the community generally that when such transgressions are committed and detected, proper recognition be given not only to the seriousness of the offence committed, but the potential seriousness of repetition or emulation by other persons. Such offences are often committed by persons of previous good character and in positions of trust and responsibility and often in circumstances where the offence is difficult to detect. Examples are offences against the quarantine laws: Lanham v. Brake (1983) 34 SASR 578 and the making of false or even inaccurate statements which defeat the purposes of the revenue laws, for example, Comptroller-General of Customs v. Grills [1992] SASC 3786; (1992) 110 FLR 431. Other examples, I am sure, could be found in the areas of breaches of statutory provisions designed to ensure industrial safety or to safeguard public health or to protect the environment, to mention but a few.

15. Paragraph 76B(2)(b) is intended to protect information under the control of the Commonwealth, and also to protect the privacy of persons to whom such information relates. The income tax laws require almost every person who earns an income in Australia to have a tax file number and to furnish returns with particulars, sometimes of a very personal and private nature. The information received by the ATO in this way is stored on computer. A tax file number, which is virtually confidential between the ATO and the taxpayer, provides the key to other detailed information about the taxpayer. For the efficient functioning of the ATO, it is no doubt essential for numerous officers to have access to much of the information on the computer including tax file numbers. The potential to retrieve such information and even to have it produced in a printed form is enormous. The officers who are granted access are entrusted with that capacity only for the legitimate purposes of their duties. The average tax payer would, I am sure, be outraged at the prospect of an officer of the ATO perusing details of the tax payer's personal affairs, which the taxpayer has disclosed under threat of penalty, other than for a proper purpose. The outrage may be all the greater if the officer were motivated by commercial or other "nefarious" purpose, but, in my view, that is not to the point. In my view, it was wrong for the Magistrate to have regard to the hypothesis that it was "routine" for an officer like the respondent, authorised to obtain access to information of a private kind on the computer, to use that authority at the officer's whim in order to obtain such information, not for the purposes of the office itself, but for amusement, edification or any other private purpose.

16. The decision of the Magistrate not to record a conviction on one charge and to dismiss the other two altogether, was, on the face of it, manifestly inadequate. The inadequacy is not explained by an examination of the facts, including the respondent's own personal circumstances. Allowing for reasonable minds to differ on such matters, I find the conclusions inescapable that the offences were of a seriousness which the Magistrate did not appreciate and that the Magistrate's assessment that the subjective circumstances were over-whelming, is wrong. Whilst convictions recorded against the respondent are likely to be a handicap in his gaining employment in any position of trust or confidence, that is an inevitable consequence of his conduct.

17. Furthermore, it would, in my view, have been appropriate for the Magistrate, had convictions been recorded, to have looked into the question of the respondent paying a monetary penalty and consideration of a monetary penalty would have necessitated an inquiry into the means of the respondent. There is no evidence as to his means before me. In all the circumstances, to remit the matter to the Magistrate simply for the purpose of conducting that inquiry would be productive of unnecessary expense and delay. Having regard to that and having regard further to the principles mentioned in R v. P above, I think it best that the matter be disposed of finally without the imposition of a monetary penalty.

18. Before making an order in the present case, it is necessary to address the issue of the ACT Supreme Court's jurisdiction to entertain the application for review. Although no point was taken by either counsel in respect of this question, it is nonetheless a question of some importance.

19. There is no doubt that this Court has jurisdiction to hear an application by way of order to review under para.219B(1)(g) of the Magistrates Court Act against the leniency of a sentence imposed by a Magistrate under s.556A of the Crimes Act 1900 in respect of an offence against the laws of the Territory: see para.207B(1)(b) of the Magistrates Court Act.

20. In the present case, however, the respondent was charged with offences against the laws of the Commonwealth, namely the Crimes Act 1914. In respect of those offences, the Magistrate made an order under s.19B of the Crimes Act 1914 which is in very similar terms to s.556A of the Crimes Act 1900. The applicant seeks, in these proceedings, to overturn that order by recourse to the right granted and the procedure prescribed in para.207B(1)(g) of the Magistrates Court Act.

21. The issue that arises for determination is on what jurisdictional basis can the ACT Supreme Court hear an application by way of order to review within para.219B(1)(g), to set aside a Magistrate's order made under s.19B of the Crimes Act 1914?

22. The answer, in part, to that question appears to lie in Peel v. The Queen [1971] HCA 59; (1971) 125 CLR 447, which illustrates a comparative problem in New South Wales. A majority of the Full Court of the High Court concluded that s.68(2) of the Judiciary Act 1903 (Cth) operates on s.5D of the Criminal Appeals Act 1912 (NSW) to enable the New South Wales Court of Criminal Appeal to hear an appeal by the Commonwealth Attorney-General against a sentence imposed by a New South Wales court upon the conviction of a person charged with an offence against a law of the Commonwealth.

23. Sub-section 68(2) of the Judiciary Act 1903 provides as follows:

"68(2) The several Courts of a State or Territory exercising

jurisdiction with respect to:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences against the laws

of the State or Territory, and with respect to the hearing and

determination of appeals arising out of any such trial or

conviction or out of any proceedings connected therewith, shall,

subject to this section and to section 80 of the Constitution,

have the like jurisdiction with respect to persons who are

charged with offences against the laws of the Commonwealth."

24. The majority in Peel acknowledged that sub-s.68(2) does not, in terms, confer on persons convicted of offences against the Commonwealth law, any right of appeal. Gibbs J made reference to the decision of Dixon J in Williams v. The King (No. 2) [1934] HCA 19; (1934) 50 CLR 551. There Dixon J opined (at 560) that it was the intention of the Judiciary Act "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice" and a provision such as s.68 conferring jurisdiction to hear and determine appeals is "open to an interpretation by which it gives a jurisdiction to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them".

25. The majority held in Peel that since sub-s.68(2) of the Judiciary Act may be said to confer upon a convicted person of a federal offence a right of appeal in respect of both conviction and sentence by recourse to the relevant State appeal provisions, there was no reason why there should not be a conferral of a corresponding right upon the Crown. Menzies J further stated (at 457) that:

"It is the law of New South Wales that an appeal in a matter of

State jurisdiction may be instituted by the Attorney-General of

the State: Criminal Appeal Act, s.5D. When the appeal is in

federal jurisdiction the implicit authority to invoke the

jurisdiction that has been granted is, by virtue of the words

"like jurisdiction", given to the Attorney-General for the

Commonwealth on behalf of the Crown."

26. Thus, the High Court read into sub-s.68(2), as operating on para.5D, the federal jurisdiction of a superior court of record to hear Crown appeals, arising under State legislation, from sentences imposed on persons who have broken the laws of the Commonwealth. That federal jurisdiction is conferred upon the High Court, other federal courts and State courts invested with federal jurisdiction, under Chapter III of the Australian Constitution and is exercised as the federal judicial power. However, Territory courts are not federal courts, they do not exercise any part of federal judicial power and they may not be invested with federal jurisdiction: Spratt v. Hermes and Another [1965] HCA 66; (1965) 114 CLR 226.

27. State courts, prior to the enactment of the Judiciary Act 1903 vesting them with federal jurisdiction in all matters in which the High Court has original jurisdiction under s.75 of the Constitution, possessed the jurisdiction to apply federal laws, consequent upon the enactment of s.5 of the Constitution Act: see Felton v. Mulligan and Another [1971] HCA 39; (1971) 124 CLR 367. That jurisdiction, which is said to "belong" to the States, was removed by the Legislature under sub-s.39(1) of the Judiciary Act 1903 "because it was not always amenable to the control of the High Court" and so was replaced "by a new jurisdiction which could be made subject to such conditions and restrictions as Parliament wished to impose": Lorenzo v. Carey [1921] HCA 58; (1921) 29 CLR 243.

28. As I stated in The Queen v. Donyadideh and Others (unreported, Supreme Court of the ACT, 7 June 1993, at 14), Territory courts have never been stripped of this "belonging" jurisdiction in order to have it replaced by "invested" federal jurisdiction by s.39 of the Judiciary Act or any other Commonwealth Act. They continue to exercise as the "belonging jurisdiction" the jurisdiction which, if exercised by State courts, is regarded as federal jurisdiction.

29. Accordingly, for the purpose of the question of the application of para.219B(1)(g) of the Magistrates Court Act there is, in my view, no significance to be placed upon the federal character of the jurisdiction of State courts as it was referred to in R v. Williams and R v. Peel. The "like jurisdiction" of Territory courts referred to in sub-s.68(2) of the Judiciary Act is such that the sub-section operates upon para.219B(1)(g) of the Magistrates Court Act so as to enable an informant to apply to this Court for review of a penalty or sentence imposed upon a person convicted of an offence against the law of a Territory.

30. Prior to my delivering a reserved judgment, the respondent acting in person, applied on notice of motion to supplement the evidence and to present further submissions. Leave was granted to him to do this although he had done nothing to cause his solicitors to file a notice of ceasing to act. I have had regard to the supplementary evidence and submissions.

31. The Magistrate's decision should be set aside and the orders vacated. In substitution it is ordered that on all three charges a conviction be recorded, that sentence be deferred upon the respondent entering into a recognizance in the same terms as that set by the Magistrate.

32. In accordance with sub-s.219F(5) of the Magistrates Court Act, the costs of and incidental to the appeal are ordered to be paid by the appellant and I so order.