Regina v Gardiner

Court of Criminal Appeal (NSW)|2002-05-23|Before: Dowd J, Smart AJ

The applicant told the investigators that he and his wife had difficulties for some years and that they had separated in 1995. He had a gambling problem and had been to Gamblers Anonymous and received counselling. He had borrowed money to finance his gambling. The gambling problem did ease. Nevertheless he was in considerable financial difficulties. When asked why he had given false answers the applicant replied "Just stupid, absolutely stupid". He also said that he was aware of the penalties involved for giving false evidence to the Commission. He then added that what he had done was unforgivable and that he was sorry for what he had done and the embarrassment he had caused himself, his "family, mates, everybody".

The applicant told the judge that when he was giving evidence before the Commission the question about the cheques came out of the blue and he panicked. He said he was stupid to lie. This made the position worse.

He said that he attended Gamblers Anonymous from about November 1994 to early 1995 and that after the separation from his wife he had not gambled to any great extent. From time to time he does have a flutter on the horses. He stated that it would be incorrect to suggest that the offences were motivated by gambling. The judge stated that it was difficult to pinpoint when the punting stopped to a significant extent. There may have been a gradual slowing down.

In his evidence the applicant said that after he and his wife separated, to keep going he had had to borrow money from the Police Credit Union and that he did so a number of times. He paid maintenance for his ex-wife and two children. The amount paid for child support was about 27 per cent of his salary. He had access to his two children and purchased additional items for them, often at their request. The materials disclose that he paid maintenance of about $960 per month. He was also assisting to pay off the mortgage on the former matrimonial home.

In addition to the financial burdens. The separation in May 1995 caused the applicant stress and distress. His second marriage had lasted 16 years.

After the applicant separated he found accommodation in the home of a lady who had another boarder. After a couple of years a relationship developed between the applicant and this lady. They started to live together in late 1997. They discovered that the house was too small to accommodate both his children. She decided, with his concurrence, that they should obtain a bigger house and re-organise their finances and start from scratch. She paid off his debt to the Police Credit Union and his car. She sold her house and used the balance of the moneys as a deposit on a new house costing about $410,000. They borrowed a substantial sum - he thought it was about $350,000 and commenced paying off the mortgage.

On 22 October 2001 orders were made pursuant to the Criminal Assets Recovery Act 1990, presumably by consent, for the repayment by the applicant of the balance of the moneys stolen ($59,255.60). There are no details as to the basis on which the orders were made. It would not seem that any orders could have extended to the partner's share in the house. There must have been a considerable measure of co-operation on the part of the applicant and his partner; otherwise the Police Integrity Commission was likely to have received very little.

In June 2001 the house they had bought was sold so that the balance of the moneys stolen could be repair. They were paid in full some two months before the sentencing hearing, out of the proceeds of the sale of the house. The evidence suggests that there was a small surplus, but there are no details.

The applicant his partner moved to Brisbane so they could start afresh a second time, partly to enable the applicant to avoid the constant shame he felt when he met former colleagues. After the sale of their home they also lived with her daughter in Brisbane. This was a temporary arrangement. They had been living on his pension. It is apparent that while the partner suffered the greater hardship the applicant's hardship was also significant. He lost the home in which he lived and which enabled him to have his children stay with him on weekend access.

On 23 February 2000 the Police Superannuation Advisory Committee determined that the applicant was due to the infirmity of "degenerative disease of the lumbar spine" It was further determined by the Delegate for the Commissioner of Police that that infirmity was duty related. An MRI scan showed significant disc injury at L2-4 and disc degeneration at multiple levels and an annular tear. The NSW Government Medical Officer accepted the opinion of Dr P J S Bentivoglio, neurosurgeon, St Vincent's Clinic, that the applicant's walking was normal, that he cannot sit or stand for any length of time, that he has intractable low back pain and that it is not possible for him to undertake full police duties. Dr Bentivoglio anticipated that the condition would steadily deteriorate. The Government Medical Officer considered the applicant permanently unfit for operational duties.

The applicant had been a patient of the West Ryde Medical Centre since 1989. The practice had recorded the history that he was involved in a motor vehicle accident in 1978 when he was a passenger in a police vehicle which skidded off the road and was hit on the passenger side and had been suffering from low back pain ever since. He had been treated by a chiropractor. The pain eased off with treatment but came on with any small aggravation. He had had to take time off work fairly often over the years due to the pain. From January 1999 the back pain had worsened and the applicant had found it difficult to work. He had not worked since January 1999.

As to his back disability the applicant said that some days were good and that some days he can hardly walk. Sometimes he cannot get out of bed. He exercises regularly and that helps. Chiropractic treatment helps as does a certain amount of physiotherapy. He takes prescription pain killers when the pain is really bad. Since leaving the Police Service he had tried to work as a private investigator but he found that his health prevented him from doing this kind of work. At times when he was required to work his medical condition was such that he could not do the work. Of course, once he was sentenced for the subject offences that avenue of work and many others would not be available.

The judge proceeded on the basis that the applicant had pleaded guilty at the earliest available opportunity. He had no previous criminal history. He joined the Police Cadets in 1967 at the age of 17 years and had given 32 years valuable service.

The judge accepted that the applicant was a person of previous good character. He had an excellent police record and had been in the front line of policing both as a uniformed officer and a detective over many years. He had been commended for good police work and bravery. He had been shot at in the line of duty and in that line had had to shoot at criminals. He shot a criminal on one occasion and probably saved life and property by doing so. These experiences had had traumatic effects on him, as could readily be accepted.

The Certificate of Appreciation in relation to the applicant's conduct in the 1993 incident read that it was awarded in recognition of: "The high level of professionalism, tenacity and skill displayed in the arrest and charging of two dangerous young criminals at Darling Harbour on 29 November 1993."

The Certificate in relation to the applicant's conduct in the 1996 incident read: "In recognition of your contributions on the 27 September 1996, when you responded to an incident involving an offender, who was armed with a firearm. Notwithstanding the inherent danger, you and another officer were able to discharge your weapons and wound one offender. Your prompt actions enabled the arrest of that offender, before serious injury could be inflicted to innocent bystanders."
While the Court is primarily concerned with the applicant's criminality in the present offences it is important that sterling service of this calibre be given due weight.

The Pre-Sentence Report was not of much assistance. The applicant expressed a considerable degree of remorse to the psychologist in relation to the offences. The psychologist reported: "His personality profile does not indicate that he has any emotional or personality disorder. There are insignificant antisocial characteristics and he is quite conventional in regard to his attitudes and beliefs. He is respectful of the law and of judicial process." and "He is assessed as having a very low likelihood of recidivism. There is no indication of any antisocial attitudes and he does not engage in any substance abuse at the present time. The fact that the offences took place during a time in which he was emotionally distressed both from the separation from his 2nd wife as well as the effects upon him of having shot an offender who subsequently died must also be taken into consideration in relation to his initial offending behaviour."
The judge took into account the testimonials of Retired Inspector G Hyde, Retired Snr Sgt B Walsh and Mr G Curtis, a former member of the Police Service for 15 years (discharged, hurt on duty) and a former Secretary of the Association. They all spoke highly of him. Messrs Hyde and Walsh had been his senior officers and described him as hardworking, dependable, honest and a man of integrity. They regarded the present offences as being out of character. Mr Curtis said that the applicant was hardworking and unselfish in his endeavours for the Association. Mr Curtis was astonished at the applicant's misappropriations and believed they were totally out of character.

Counsel for the applicant sought to mitigate the seriousness of the office on the basis that the applicant was not a highly paid senior executive but was acting in an honorary capacity as the President of a voluntary organisation. I would not attach weight to this factor. It is the dishonest taking of the money and using it for one's own purposes that lies at the heart of the offence. In some voluntary associations the prospects of detection are less.

The judge correctly emphasised the breaches of trust and the seriousness of the offences. He commented that while the amount misappropriated from the Association was not large when compared with amounts misappropriated from larger organisations, it was a significant amount to this small amateur cricketing organisation. The judge's comment is correct insofar as it goes. It ought to be added that unlike the larger misappropriations the amount taken has been repaid in full so that the Association has not sustained any long term loss. With private companies where there has been a substantial measure of restitution it is not uncommon for the matters not to reach the courts. That is not a course which should be approved but the Court cannot ignore what happens.

The judge said: "In this case repayment has been made and I shall take it into account. The Court in Phelan's case was of the view that where repayment causes hardship, this should be taken into account more so than simple repayment. Here there was repayment. In my view, the hardship was more to the prisoner's partner than to himself personally."
Phelan's case involved a much larger sum and a defalcation by a very senior officer of a major bank. He committed 154 offences over a long period of time.

The reference to the applicant's partner was unnecessary. The point, on the approach adopted by Hunt CJ at CL in Phelan (1993) 66 A Crim R 446 at 449, was whether there had been a substantial degree of sacrifice by the applicant in the repayment, not whether his partner had suffered greater hardship. As I read the judge's comment he was saying, in effect, that the hardship suffered by the applicant was minor.

There was a substantial degree of hardship suffered by the applicant. It was no light matter for a person to co-operate in selling the home where he and his partner live when he was on a modest pension and had to rely on her good offices to do so. Further, they did not have a home of their own to go to. They were scraping the bottom of their financial barrel. Without the active co-operation of the applicant and his partner it must have been doubtful whether the Commission would have recovered all of the moneys taken. Forced sales are not usually beneficial, especially if the partner had asserted her entitlements. Frequently, in family and quasi-family situations members assist the offender. I would not wish to discourage this by making it substantially pointless to assist. As in this case hardship inflicted on any member of the family often affects all members.

In Phelan at 450 I took a slightly broader view than Hunt CJ at CL. I regarded restitution as an important factor in this type of case and that its use should not be restricted. So much depends on the circumstances. It is not a situation which should be governed by inflexible rules. In many cases restitution will involve hardship and sacrifice even though a person may have brought it on himself, for example, by gambling or high living or pursuit of a partner or a friend.

In the present case the judge has not attached the weight to restitution which it deserves.

The applicant complained that the judge had approached the question of special circumstances incorrectly and that he should have found special circumstances. The judge, after referring to Phelan (supra) said: "The court in that case looked at what constitutes a matter such as a special circumstance. The court in this context spoke of the need or the desirability for the offender to be subjected to an extended period of conditional release, subject to supervision on parole. The starting point is the need or the desirability of a longer than usual additional term, not the need or desirability of a shorter than usual minimum term. In this case it is my view that there is no need for an additional extended period and there is no need for supervision on parole. Accordingly, this series of matters does not come within the purview of the term, special circumstances."
However, it is necessary to have regard to the whole of what Hunt CJ at CL said as to special circumstance in Phelan at 449-450. "'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance within the meaning of s 5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subjective to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration. Such will often be the case with young offenders who are facing their first custodial sentence. Those statements are taken from the judgments of this Court in Moffitt (1990) 20 NSWLR 114 at 121, 132, 136; 49 A Crim R 20 at 26-27, 38, 41-42. The necessary consequence of a decision that a longer than usual additional term is necessary or desirable is that the minimum term must be shorter than it otherwise would have been: Moffitt (at 118, 121, 134-135; 24, 27, 40-41. But the starting point is the need or the desirability of a longer than usual additional term, not the need or the desirability of a shorter than usual minimum term. Those statements do not, of course, limit what may constitute special circumstances within the meaning of s 5(2). I referred to some other matters which may constitute special circumstances in Close (1992) 65 A Crim R 55. They are many in number and nature, and I would not want to be thought to have intended to circumscribe the width of the expression which s 5(2) has used."
As Spigelman CJ pointed out in R v Simpson [2001] NSWCCA 534 at para 45: "Whilst his Honour did expressly adopt the perspective of a longer than usual period of supervision on parole ...his Honour was identifying the most common, rather than an exclusive, perspective,"
Again, as Spigelman CJ pointed out in Simpson, supra at para 49, in R v GDR (1994) 35 NSWLR 376, this Court constituted by five judges, indicated that while the perspective involved in approaching the determination of special circumstances from the point of view of a longer than usual non-parole period is a permissible one, it does not constitute an exclusive perspective. The judge seems to have approached the determination of special circumstances as if the requirement of a longer than usual non-parole period constituted an exclusive perspective.

Since Phelan s.5 of the Sentencing Act 1989 has been repealed and it has been replaced with s.44 of the Crimes (Sentencing Procedure) Act 1999. That section and the question of special circumstances was considered in some depth in R v Simpson [2001] NSWCCA 534. At para 57 Spigelman CJ, with whom Mason P, Grove J and Newman AJ agreed, said: "The reasoning in Power [(1973) 131 CLR 623] indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as primary perspective. This has the effect that the scope of the considerations relevant to the determination of 'special circumstances' must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole."

At para 58 the Chief Justice said: "The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected." 47. In Simpson at para 65 the Chief Justice stated (citations omitted): "In addition to the need to identify and articulate 'special circumstances', in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. " 48. At para 68 the Chief Justice continued: "By s44(2) the non-parole period is not to be less than three quarters of the head sentence 'unless the court decides there are special circumstances for it being less'. This qualificatory clause requires a 'decision' by application of the composite requirement that the 'circumstances' be sufficiently 'special' for the statutory proportion to be reduced."

At para 69 the Chief Justice rejected a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case.
This was never a case in which there was a need for a longer than usual period on parole for the purposes of rehabilitation. The judge approached the determination of special circumstances incorrectly. He did not have regard to all that Hunt CJ at CL said in Phelan, nor to Simpson nor to the change in the legislation.

I place at the forefront of considerations that this Court should not intervene unless a lesser sentence is warranted in law.

The special circumstances in the present case as to the fraudulent misappropriation are that this is the first time that the applicant has been in custody, having had no previous convictions, his poor health, being his disabling back condition which will prevent him doing other than selected light duties (assuming they are available) and his need to serve the whole of his sentence in protective custody. The cases establish that is a much harsher form of custody. There is the additional problem of the applicant's personal security. As a Detective Sergeant for many years and a uniformed Sergeant, he would have been responsible for investigations and prosecutions that have led to offenders being gaoled or otherwise punished. Further, the mere fact that he is a former police officer may lead some malefactors to wish to harm him. He was engaged in front line policing.

Any sentence of imprisonment in excess of 12 months imposed upon a former police officer is a powerful deterrent given the reception he is likely to receive in prison. This is emphasised where, as here, it is accompanied by significant financial loss.

The minimum period which the applicant is required to serve by way of a non-parole period is 15 months. Fifteen months in protection is the equivalent of about 20 to 22 months in normal custody, if not more for a former police officer. He would be constantly apprehensive for his safety and with good cause.

The joint judgment in Pearce (1998) 194 CLR 610 at 624 requires a judge sentencing an offender for more than one offence to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. While on the false swearing offence the applicant has been sentenced to 15 months with a non-parole period of 6 months and this leads to sentences totalling 43 months with non-parole periods totalling 27 months, this does not justify the correct sentence not being imposed on the fraudulent misappropriation counts. The judge has erred in respect of the sentences imposed on these counts. A sentence of 2 years 4 months served in protective custody amounts to about or over 3½ years served in normal custody. Sufficient weight was not attached to this factor. Nor was sufficient weight attached to the repayment in full of the moneys taken. These factors when coupled with the pleas of guilty at the earliest opportunity, and his previous good character lead to a sentence not exceeding 2 years imprisonment. As was pointed out in Ryan v The Queen (2001) 75 ALJR 815 (paras 25, 102, 174) an offender's previous good character (or "otherwise good character") must be taken into account in mitigation, although the weight to be given to that factor will vary according to all the circumstances.

As to the non-parole period on count 7, for the reasons earlier given there are special circumstances which warrant, if not demand, a non-parole period less than three-fourths of the head sentence. It was erroneous for the judge not to find special circumstances for the statutory proportions to be reduced. This Court has to re-sentence. Evidence was given before us without objection that while he has been in custody he has run into one man whom he was instrumental in having convicted of murder and sentenced to 15 years and the ex brother-in-law of a man he shot in an armed hold-up. The minimum non-parole period which the applicant is required to serve is 15 months and that is the non-parole period which should be fixed on Count 7.

As to the count of false swearing, and without in anyway minimising its seriousness, it should be noted that he admitted his lies on the same day that he told them, while still being questioned by counsel assisting the Commission and prior to the adjournment. He did not persist with his lies. He gained no advantage in telling them. All he did was make matters worse and render himself liable to a longer prison sentence.

Counsel for the applicant submitted that once the judge determined that the sentences were to be cumulative then special circumstances must apply in relation to both sentences in order to ensure a proper proportion between the total non-parole period and the total term. That proposition is incorrect. Where sentences are cumulative the court always considers the effective total term and the effective total non-parole period bearing in mind that the second sentence commences at the expiration of the non-parole period of the first sentence. Regard is had to whether the result which would be produced exceeds the minimum period which the applicant should spend in prison and whether there is a lack of proportion overall. It is correct and not uncommon where there is an accumulation of sentences for the non-parole period on the second (or last) sentence to be reduced to allow for the accumulation. Except where the last sentence is one for escaping lawful custody or a short sentence or the first sentence is a long one it is not the usual practice to reduce the non-parole period on the first sentence by reason of the accumulation. Of course, it can be done where it is prudent to do so.

In the present case the judge found special circumstances as to the false swearing offence "because the false swearing [sentence] should be cumulative on count 7 in the fraudulent misappropriation matters. That was a permissible approach. The judge does not suggest any other reason in relation to that sentence for finding special circumstances. The Crown suggested that the sentence for false swearing was lenient. I do not agree. There are not a lot of cases where a person who admits false swearing (or perjury) in his evidence in an earlier part of the day is prosecuted.

I propose the following orders: 1. Leave to appeal against the sentences on the counts of fraudulent misappropriation 2. Dismiss the appeals on the following counts: Count 1 - Fixed term of nine months Count 2 - Fixed term of fifteen months Count 3 - Fixed term of twelve months Count 4 - Fixed term of twelve months Count 6 - Fixed term of fifteen months Count 8 - Fixed term of twelve months Count 9 - Fixed term of nine months Count 10 - Fixed term of six months Count 12 - Fixed term of nine months Count 13 - Fixed term of twelve months Count 14 - Fixed term of twelve months Count 15 - Fixed term of twelve months

On each of Counts 5 and 11 appeal allowed, sentence quashed, In lieu thereof the applicant is sentenced to imprisonment for 21 months starting on 22 February 2002 with a non-parole period of 15 months starting that day and expiring on 21 May 2003.

On Count 7 appeal allowed, sentence quashed. In lieu thereof the applicant is sentenced to imprisonment for 2 years starting on 22 February 2002 with a non-parole period of 15 months starting that day and expiring on 21 May 2003.

Pursuant to s.59 of the Crimes (Sentencing Procedure) Act 1999 vary the commencing dates of the sentence on the count of false swearing (Count 16) so that the sentence of fifteen months commences on 22 May 2003 and the non-parole period of 6 months commences that day and expires on 21 November 2003.

The applicant is eligible for release on parole on 21 November 2003 **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Regina v Gardiner [2002] NSWCCA 209 FILE NUMBER(S) : CCA 60128/02 HEARING DATE(S) : 23 May 2002 JUDGMENT DATE : 5 June 2002

COUNSEL : (A) C Steirn SC (C) P G Ingram SOLICITORS : (A) James A Hall (C) S E O'Connor CATCHWORDS : Sentencing - fraudulent misappropriation and false swearing - importance of repayment - same day admission of false swearing - protective custody - former police officer and personal danger to him - serious medical condition - special circumstances - prior bravery Sentencing Act 1989 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Assets Recovery Act 1990 Phelan (1993) 66 A Crim R 446 R v Simpson [2001] NSWCCA 534 CASES CITED: R v GDR (1994) 35 NSWLR 376 Pearce v The Queen (1998) 194 CLR 610 Ryan v The Queen (2001) 75 ALJR 815 DECISION : See para 60

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