[3] That the evidence in hand established of the applicant "not only that he knew of the existence of the counterfeit notes ……………….. but also that he brought the notes to the markets with the intention of trying to pass them or some of them off to the stall holders who were legitimately conducting their businesses at the market on this day" .
11 As to the Crown submission numbered [3] above, the learned sentencing Judge says in the remarks on sentence:
"I agree with this contention and am satisfied beyond reasonable doubt from the whole of the evidence herein that on this day the offender went to the markets with such an intention."
12 It was, in my opinion, open to the learned sentencing Judge to come to that conclusion of fact. The contrary was not contended at the hearing of the present application.
13 What was contended at the hearing of the present application was that his Honour had translated that finding of fact into a sentence which punished the applicant, in fact, for an offence different from and more serious than the actual offence of which the verdict of the jury found him guilty.
14 The relevant principles of law are not in doubt. They are stated authoritatively by the decision of the High Court of Australia in The Queen v De Simoni [1981] 147 CLR 383. It is sufficient to quote the following brief excerpt from the judgment of Gibbs CJ, speaking for the majority Justices.
"It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty."
15 I do not see how the approach adopted in fact by the learned sentencing Judge in the present case could be thought reasonably to have contravened these principles. His Honour was required by section 17A of the Crimes Act 1914 (C'th) to consider whether no other sentence than a sentence of imprisonment was appropriate to the particular facts and circumstances of the applicant's individual case. His Honour, if of the view that the case before him called for a sentence of imprisonment, was thereupon required to fix properly according to law the point at which that sentence should be set on a scale ranging to a statutory maximum of imprisonment for 10 years. In connection with each of those two considerations, it was in my opinion necessary for the learned sentencing Judge to come to a view, in so far as the available evidence enabled that to be done, concerning the intent with which the applicant had been, in the relevant circumstances established by the evidence, knowingly in possession of a not inconsiderable sum of counterfeit bank notes. His Honour does not seem to me to have gone beyond the point of finding, correctly on the available evidence, that the intent with which the applicant was in knowing possession of the counterfeit bank notes rendered the applicant's offence of such knowing possession more, rather than less, serious in connection with the fixing of a proper penalty.
16 It was submitted for the applicant that the learned sentencing Judge erred in law by accepting the proposition that, as his Honour put the point:
"In these circumstances and bearing in mind that counterfeit notes cannot be redeemed so that any person who innocently accepts such a note in the course of his business must bear the loss ……….(resulting from)………… acceptance of the note, it seems to me that any person who is convicted of the offence of knowingly having in his possession, without lawful excuse such notes, must, bearing in mind the provisions of Sections 16A and 17A of the Crimes Act, ordinarily expect to go to gaol."
17 In my opinion there is no error disclosed by that approach. The knowing possession, without lawful excuse, of counterfeit bank notes is in any circumstances a serious offence. A worst case of the particular kind attracts a statutory maximum penalty of, relevantly, imprisonment for 10 years. The clear legislative purpose in having established the offence at all is, in my opinion, the resolute protection of the integrity of the national currency. In connection with a matter of such importance, it does not seem to me to be in any way erroneous in principle to hold that knowing possession without lawful excuse of counterfeit bank notes should attract, in the absence of cogent and compelling circumstances, some form of full-time custodial penalty.
18 Present complaint is made, further, of the following portions of the remarks on sentence:
"I have come to this conclusion because in my opinion the criminality displayed by the offender in this case and his lack of remorse even at this time requires the imposition of such a sentence and also because a sentence not involving an element of full-time custody would, in my opinion, send the wrong message to others in our community who might be tempted to act as the offender did on this occasion. To my mind in this type of case the concept of general deterrence is a most important concept for me to bear in mind, particularly because modern technology now makes it so much easier for forgers to create counterfeit notes of high quality which, if they find their way into circulation, tend to undermine the confidence that ordinary people have in the veracity of our currency."
19 Complaint is made that the foregoing remarks, in so far as they touch upon the matter of remorse, show that the learned sentencing Judge erroneously increased, on account of the perceived absence of remorse, what would otherwise have been an appropriate sentence.
20 I do not accept that submission. The fact is that the applicant did not show any remorse, but continued to maintain, even after his conviction upon the verdict of the jury at trial, that he was not guilty of the offence charged. It seems to me that the learned sentencing Judge was doing no more than noting that absence of remorse; and observing that the absence of remorse was a factor, among others, justifying the imposition of some full-time custodial penalty rather than a more lenient and non-custodial penalty.
21 Generally as to the merits of the present application, there is useful assistance to be had, in my opinion, from the judgment of the U.K. Court of Appeal in the matter of Anthony Frank Howard [1985] 82 CrAppR 262.
22 That offender was convicted of having custody of counterfeit currency, and of having tendered a counterfeit bank note. He was sentenced to imprisonment for 2 years on each count, the sentences to run concurrently. There were substantial subjective features to the offender's particular case. An appeal against the sentences was dismissed. The Lord Chief Justice, delivering the judgment of the Court, made the following observations:
"Perhaps the most important consideration in this type of case is the quantity of the counterfeit notes which are found in the appellant's possession, because that will demonstrate, with some degree of accuracy at least, the proximity to, or the distance from, the source of the notes which the appellant's position occupied. Quite plainly, from the quantity of notes in the possession of this man, he was somewhere near the source of the notes. It is a trite observation made in these cases, but nevertheless correct, that the issue of counterfeit notes undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of these notes only to discover that they are worthless.
It follows therefore that this type of offence is one which in nearly every case will require a custodial sentence ………………….. . The reason for the custodial sentence is first of all to punish the wrongdoer. The secondary reasons are to deter the wrongdoer himself from committing the same sort of offence in the future - that perhaps does not figure very largely in this case because it is very unlikely that this man will offend again - but much more important, it is to indicate to others who are minded to make cheap and easy profit by the acceptance of counterfeit notes, that it simply is not worth the candle. If they do choose to have counterfeit notes, and particularly large quantities of them, they are going to get some considerable punishment."
23 That reasoning is, as I respectfully think, both plainly correct in principle and plainly applicable in fact, in the circumstances of the present particular case. It is not necessary, in my opinion, to deal in any further particular detail with the individual grounds of appeal as formally notified. It suffices to say that in my opinion there is no substance to any one of them.
24 In my opinion, and for the whole of the foregoing reasons, the Court should order: