TUESDAY 19 MARCH 2002
REGINA v. BRIAN TRIM
Judgment
1 GREG JAMES, J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court of New South Wales at Parramatta for two offences of obtaining financial advantage by deception. These are offences created by s.178BA(1) of the Crimes Act 1900, each of which is punishable by a maximum penalty of five years imprisonment. To each of these offences the applicant pleaded guilty before the Magistrate and adhered to his pleas before the learned sentencing District Court judge.
2 At the time the applicant was 65 years of age having been born on the 23 January 1937.
3 The applicant was sentenced on the first count to a fixed term of imprisonment for three years to date from the 16 March 2001, that sentence expiring on the 15 March 2004; on the second count the applicant was sentenced to imprisonment for three years and nine months to commence on the 16 March 2004 and to expire on the 15 December 2007. The learned trial judge imposed in respect of that latter sentence a non-parole period of one year to commence on 16 March 2004 and to expire on the 15 March 2005. The applicant had been on bail prior to his conviction on the 16 March 2001 when he was remanded in custody. The sentences therefore dated from the date the applicant first went into custody.
4 A number of grounds have been advanced in criticism of the sentences. For an understanding of those grounds some summary is necessary of the facts on which the applicant came forward for sentence. Each of the counts charged offences over a period, the first between the 5 May 1993 and the 8 October 1999 and the second the 2 February 1994 to the 29 October 1999. It can be seen that the periods overlapped. The first count was said to involve the obtaining of some $232,433.10, the second, further amounts totalling $213,200; thus the total amount taken by the offender over the total period was some $445,603.10. This amount was taken in what the trial judge referred to as a sustained course of criminality over a period of six and a half years involving the forging of cheques or the creation of false instruments involving some 878 separate cheques.
5 The applicant was of the age of 56 when he commenced this course of fraud and he continued it to the age of 62. He had had no prior convictions. He was a clerk employed by a firm of accountants for the purpose of maintaining and operating a trust fund established by a deceased husband and wife for the benefit of their children. That fund managed various business enterprises. The manager of the fund attended at the accountant's office to draw cheques on a fortnightly basis and the applicant from his position of trust took advantage of that circumstance to obtain cheques in his favour by manipulating the circumstances in which the cheques came to be signed. He either forged the signature of one or other of the signatories or both signatories and effected thereby fraudulent drawings from the accounts of the companies operated by the trust.
6 The applicant in those circumstances breached the trust placed in him not only by his employer, so found the trial judge, but also by the beneficiaries of the estate with whom he had been in regular contact. He had apparently fallen into these criminal ways by reason of his having developed what her Honour referred to as a "syndrome", that is to say, he had become a gambling addict. In particular he had spent this enormous sum of money on poker machines, horse racing and keno.
7 The trial judge made a positive finding that he would have had some winnings during this period but it appeared to her that those winnings too had been dissipated along with the money taken from the trust. She found that the applicant is dependent upon his wife who provided a statement and gave evidence in his favour.
8 The applicant's contention that his employers were at fault by failing properly to audit the accounts can be disregarded. There is nothing mitigatory in such a belief. In particular it only goes to emphasise the advantage he took of his position of trust. This, of course, was found by her Honour. He had had, she found, an unremarkable and relatively stable early life, although his first marriage had failed and he had married his present partner shortly prior to being detected for these offences. There are no children of that relationship.
9 At his age it has become apparent that there will be no reasonable likelihood of his being employed again when he is released from custody. He has no assets, there is no prospect of restitution and it is most unlikely that he would have any further opportunity in his lifetime to acquire assets to make restitution.
10 The trial judge found (and it is supported by the evidence) that he has always both drunk and gambled to excess, that his inability to fund his gambling from his own resources was the initial cause of the pattern of dishonesty that had brought him before the court.
11 He left his employment due to his high anxiety levels generated by his own dishonesty. For some months he was able to hold at bay those who were seeking from him audited accounts and even during that time he did not refrain from continuing his frauds. However, when spoken to by the police, he made full admissions.
12 There was some delay in the matter going forward occasioned by the necessity for proper investigation but that delay was occasioned by the nature of the accounting exercise involved rather than by any dilatoriness on his part or on the part of the prosecuting authorities.
13 The trial judge found (and it was the evidence from his referees and the opinion of his Probation and Parole Service officer) that he was genuinely ashamed and remorseful for his conduct, that there was no realistic likelihood of his offending in the future and that in effect there was no necessity to make particular provision for personal deterrence in the sentence since the experience of his being charged and in prison would act as an effective personal deterrent.
14 The learned trial judge, however, turned to general deterrence and in that connection found that it was necessary for there to be condign sentences for those who might be minded to abuse the trust imposed in them in like circumstances to the offender. It was an offence for which she properly held that there was no alternative to full-time imprisonment (notwithstanding that it will be the offender's first time in custody), that imprisonment would be most unpleasant for him and at his age such imprisonment would be especially onerous.
15 He suffers from neurodermatitis and high blood pressure which itself did not render the sentence much more onerous but which, taken in conjunction with his age, no doubt minded her Honour to remark:-
"It will no doubt be a most unpleasant experience having regard to his age and background".
16 He has attempted with some degree of success, the trial judge found, to turn away from gambling addiction and is apparently, according to the evidence of his wife, (which her Honour seemed to have accepted) able to drink and gamble in moderation. Her Honour concluded, and in my view rightly, that it is an appropriate matter in which to provide for a lengthy period on parole having regard to the necessity for the protection of the community, so that when the offender returns to the community he will not again be attracted to gambling and thus risk further criminality.
17 Her Honour was of the view therefore that there should be a variation of the normal sentence to parole period relatively pursuant to s.44(2). By that I understand that her Honour found all of those matters to be special circumstances such as would warrant a disturbance of the statutory ratio. Her Honour proceeded on the basis favourable to the offender that he was suffering from the syndrome to which I have referred. She had regard to various decisions and various authorities concerning individual sentences in like circumstances. She concluded:-
"Having regard to the period of time over which these offences were committed, the persistent criminality and the amount involved, the offender will be sentenced to a head sentence in each case to the full amount allowed by law namely five years".