REGINA v GENTZ

COUNSEL : D J Fagan SC (Crown/Appl)) M A Marty (Resp) SOLICITORS : Commonwealth DPP (Appl) Christopher Levingston & Associates (Resp) CATCHWORDS : DECISION : Appeal dismissed

60362/99 NEWMAN J SIMPSON J HIDDEN J

1 NEWMAN J: This is a most extraordinary appeal. The Crown has appealed against a sentence of periodic detention for two years imposed in the District Court by Dodd, DCJ on the respondent. I say "extraordinary" because this case has, as its nub, events which occurred after the commission of the subject crime. Perhaps it would be best if I turn at the outset to the matter which brought the respondent before the District Court. 2 She stood charged, and indeed pleaded guilty, to the charge of defrauding the Commonwealth contrary to s 29D of the Commonwealth Crimes Act 1914. Her criminal involvement came about as a consequence of duties she had been performing within the Department of Defence. Between January 1997 and May 1998, the respondent performed a dual role at the Defence National Stores and Distribution Centre at Moorebank. She was employed as both a system operation manager and a certifying officer. Normally, the administrative arrangements would require that those positions be operated by separate persons. Apparently, for reasons of economy, a decision had been made that one person could do both roles. 3 Effectively that meant that within the department the system of checks and balances as to expenditure of Commonwealth monies was removed. 4 The long and short of it was that between those dates in January 1997 and May 1998, the respondent carried out a system of defrauding the Commonwealth involving the not unfamiliar procedure of raising false invoices which nominated as persons, and I use it in the sense of legal persons, for payment which, in fact, meant the funds went directly to her. 5 Eventually, as is often the case, she was found out when, perchance, somebody started to scrutinise what was going on. However that scrutiny ultimately revealed that a sum of some $196,000 had been obtained by the respondent by virtue of her fraudulent scheme. Indeed, when she gave an account of where she had expended the money, some $26,000 odd still remained unexplained. 6 In the normal course of events the respondent would have received a substantial term of full-time custody. As has rightly been submitted on behalf of the Crown, in matters of this type in the ordinary course of events, general deterrence is a matter of great importance. Indeed, there are numerous decisions of this Court which indicate that that is the case. The Crown, quite properly, has referred us to a number of those decisions in respect of the Commonwealth, the case of Regina v Martin (1994) 74 A Crim R 252; Regina v Rush (Victorian CCA, unreported, 23 September 1994); Regina v Forbes (NSW CCA, unreported, 27 March 1997) and, of considerable importance, Regina v Riccord (NSW CCA unreported 9 May 1997.) 7 In Riccord the then Chief Justice, Gleeson CJ, opened: "The Crown observes, rightly in my view, that there are two notable omissions from his Honour's reasons given for the course he took, and that the absence of those matters indicates error. First, there is no reference to the objective seriousness of the case. The fraud practiced upon the Commonwealth by the respondent involved a substantial amount of money and took place over a number of months. His offence was objectively serious. Further, and most importantly, no reference is made to the consideration of general deterrence, which is of particular significance in relation to an offence of this character." 8 Riccord, who was a licensee of a post office, by dint of issuing no less than 130 money orders to himself, defrauded the Commonwealth of $115,534.98. 9 In this case, the court, exercising principles of double jeopardy, the learned trial judge having imposed, a recognisance, quashed the recognisance and inserted, in lieu thereof, periodic detention of 18 months, but making it plain that double jeopardy alone saved the applicant from full-time custody. 10 Thus, this Court has made it plain that in cases of fraud of this type involving the Commonwealth, considerations of general deterrence are, in the ordinary course of events, a matter of great moment and will result in the imposition of a sentence involving full time custody. Indeed in the subject case Dodd, DCJ appreciated that and indeed, made that plain. 11 In one passage he made, using a direct reference to the respondent herself, this comment: "You expected to go to gaol. You were correct in that expectation. This is a serious offence. You were trusted. You breached that trust repeatedly and systematically over a long period for your own greed. You are not an evil person but you succumbed to temptation when given an opportunity to commit this offence. You knew you were doing wrong and you consciously kept doing it." 12 It is, I should add, not an unusual situation in the experience of the courts that when a person does find themselves both charged and ultimately convicted of an offence of this nature, they are persons of absolutely impeccable prior good character. For that very reason, namely their impeccable past good character, people are in fact appointed to positions of trust. It is when they abuse those positions of trust that the question of general deterrence comes most powerfully into play. His Honour fully recognised that. 13 I have repeatedly referred to the phrase, "in the ordinary course of events." What I have not mentioned are the extraordinary events which occurred following the respondent's apprehension. 14 She had, in her second marriage, apparently enjoyed an excellent relationship with her husband. When she was apprehended and indeed had made a very full disclosure of her guilt, albeit ultimately still not a full disclosure of where all the money had gone, but a full disclosure of guilt in the record of interview, she held, as I understand it, a family conference. Her de facto husband, one Mark Payne, was present at the conference and so were her daughters who were born of a previous relationship. One daughter, Rebecca, was born on 3 November 1973 and the other, Rachel, born on 8 October 1976. 15 The next day Mr Payne attacked the respondent and her daughters with a claw hammer with, it seems, an intention of killing all three and then had the intention of suiciding. All three women suffered extensive physical injuries. Sadly, the respondent's daughter, Rebecca, suffered permanent brain damage which has required on-going treatment and rehabilitation. While the daughter Rachel and the respondent apparently made quite a good physical recovery from the extraordinary assault carried out, the daughter Rachel continues to suffer psychological effects. 16 His Honour, having pointed out that this is a case where, in the ordinary course of events, general deterrence is important, rejected a submission made on behalf of the respondent that he should decline to order a sentence of full-time custody on the basis that it would cause hardship to the respondent's daughters. His Honour in so doing, with respect to him, was right in law. 17 The second argument which had been advanced before his Honour, and one which he accepted, was that the respondent had been punished already. He accepted the concept that double punishment is not a matter which the law countenances. I have some difficulty, may I say, in accepting his Honour's reasons as so stated, and indeed it may well be that his Honour has fallen into error in making that finding. 18 However, this is a case where extraordinary events occurred following the commission of the crime. So extraordinary that in my view takes it without normal sentence considerations in a case of this type. In my view, when one looks at cases such as Regina v Scognamiglio (1991) 46, A Crim R 81; Regina v Letteri, CCA unreported 18 March 1992, and indeed, cases such as Regina v Alpass, the law does recognise that there are extraordinary cases where the factual material takes the case outside the normal mainstream of approach. Perhaps Mahoney ACJ encapsulated the underlying philosophy in that approach in Kable v The Director of Public Prosecutions, (1995) 36 NSWLR 374, where he observed: "If justice is not individual, it is nothing." 19 In my view this case is so extraordinary that the normal considerations of general deterrence, which demand that persons who breach as significantly as the respondent did here, a position of trust involving the embezzlement of a large sum of money should be sentenced to full-time custody, is taken away by the extraordinary events which followed the commission and revelation of the crime committed. 20 While, as I have said, I have doubts as to the validity of his Honour's acceptance of the second argument, I am of the view that if the court were to resentence it would impose no greater sentence that that which his Honour imposed, namely the sentence of periodic detention and accordingly I would not allow the Crown appeal. 21 SIMPSON: I agree and I would add only this: When this and other appellate courts recognise exceptional circumstances warranting the departure from a general principle, the words uttered are not empty rhetoric and lip service. They are intended to acknowledge the reality of extraordinary circumstances, which these courts cannot anticipate. This is precisely such a case. It not only justified, but demanded, an individual approach to sentencing. 22 Its circumstances were such as to relegate considerations of general deterrence, the absence of reference to which in the remarks on sentence was relied upon by the Crown Prosecutor as demonstrating error, to a position of no importance at all. The current emphasis on uniformity, or at least consistency of sentencing, is not intended to confine sentencing judges to a straitjacket not designed to accommodate the extraordinary case. In my view his Honour was perfectly correct in declining to impose a sentence of full-time custody. 23 HIDDEN J: I also agree that the appeal should be dismissed for the reasons given both by Newman J and Simpson J. 24 NEWMAN J: The order of the Court will be as I proposed.

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