5.4.2 Were the suspended sentences of imprisonment of six months legally unreasonable?
91 Turning then to the question of whether the DFM's sentence was unreasonable, first, it is evident that the DFM has not relied upon statistical data or specific comparative decisions to make his finding as to what civilian courts have imposed for like offences. Rather, as the respondent submits, the DFM has made a qualitative assessment having regard to the seriousness of the charges in this case and the objective seriousness of the offence as indicted by the maximum penalty of 10 years imprisonment. I note in this regard that it is not suggested that any statistical data was provided to the DFM.
92 Secondly, the respondent rightly conceded that, while not required by s 70(1) of the DFDA, it was open to the DFM to consider the sentence which a civilian court might have imposed on a criminal prosecution of the same offences. In other words, it was not suggested that s 70 contained an exhaustive code of the matters which may be taken into account by the service tribunal in assessing the sentence to be imposed in the particular case. However, the applicant's reliance here upon Tables A, B and C to establish such a deviation from comparable cases as to demonstrate that the DFM must have acted unreasonably suffers from a number of difficulties as follows.
(1) Section 70(1)(b) of the DFDA expressly provides that in sentencing, the service tribunal must take into account the need to maintain discipline within the defence force. This highlights the different purpose served by military disciplinary law, as opposed to the criminal law, and therefore the fallacy in assuming that sentences imposed in the civil context in otherwise comparable circumstances can set a benchmark by which to determine whether sentences imposed in the context of the military discipline are legally unreasonable. It follows, as senior counsel for the respondent submitted, that the contention that s 70(1)(a) requires any exact correlation with sentences imposed by civil courts is inconsistent with s 70(1)(b) which recognises that the military context is "distinct and significant".
(2) Further and in any event, statistical evidence of the kind on which the applicant here seeks to rely is unhelpful, given the fact specific, balancing exercise involved in the sentencing process. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained in Hili v The Queen [2010] HCA 45; 242 CLR 520:
48… Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
Thus, subsequently in The Queen v Pham [2015] HCA 39; 256 CLR 550 (Pham), French CJ, Keane and Nettle JJ held at [28] that:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(See also Barbaro at [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ))
(3) The concerns expressed in these High Court authorities are illustrated by the tables relied upon by the applicant. These contain a statistically small number of sentences (particularly Tables B and C), and lack anything other than the most basic of information about the personal circumstances of those offenders: see above at [80].
(4) Moreover, the statistics relied upon by the applicant relate only to New South Wales and do not depict sentences imposed in comparable cases throughout the Commonwealth: cf Pham at [24].
(5) Even putting these difficulties aside, the High Court has held that, "….in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as 'yardsticks' that may serve to illustrate (although not define) the possible range of sentences available": Pham at [29] (French CJ, Keane and Nettle JJ) (referring to Hili at [54]; and Barbaro at [41]). As the joint judgment held in Hili at [54], a history of sentencing can establish a range of sentences that have in fact been imposed, but "…does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits." By analogy, the comparative material on which the applicant relied could not define the outer limits of a reasonable decision.
93 Having regard to these considerations, the statistics relied upon by the applicant fall well short of demonstrating that the sentences of imprisonment which were imposed were so excessive as to be legally unreasonable.
94 Thirdly, the applicant also sought to rely upon sentences imposed by service tribunals in other matters. Redacted copies of the sentencing remarks in those other matters were tendered by the first respondent (exhibit R-1). I refer to the cases by reference to the tab behind which they are located in exhibit R-1 save for two loose copies of decisions also included in the bundle comprising the exhibit which are referred to as the s 56 DFDA (2015) decision and the s 135.2 CCA (2015) decision respectively. The cases in Exhibit R-1 are of limited utility insofar as they are relied upon as comparative cases for the following reasons:
(1) Four of the comparative cases relied upon involved convictions under s 145.1 of the Criminal Code Act among other offences, being cases no. 1, 3, 6 and 7. While no sentence of imprisonment was imposed with respect to the convictions under s 145.1, the reasons for the punishment were not disclosed in cases no. 1, 6, and 7. As such, the personal circumstances of the offender and offending which were taken into account are unknown.
(2) With respect to case no. 3, the flight sergeant pleaded guilty to ten charges (1 charge, using a forged document, Criminal Code Cth s.145.1); two charges, disobeying a lawful command (DFDA s.27); one charge prejudicial conduct (DFDA s.60), one charge making false entry in a service document (DFDA s.55(l)(b)), and four charges unauthorised modification of restricted data (Criminal Code Cth s.478.1). The offences concerned altered PMKeys entries relating to the offender's IR status and a false entry in her record of training that she had completed her weapons-handling test. The offender was sentenced to forfeiture of seniority, a fine of $3600, and a severe reprimand. The circumstances of the offending and offender however bear little resemblance to those in the present case. The DFM found that the offender's conduct relating to the altered PMKeys entries was opportunistic, with the other charges (which comprised a single course of conduct) to cover up her earlier offending as the more serious. That conduct was towards the low end of conduct intended to be caught by s 145.1, although that did not mean that it was not serious especially in a military context. Factors balanced in the sentencing process included her plea of guilty, her demonstration of remorse, that the risk of reoffending was low and her prospects of rehabilitation excellent, that there was no loss to the Commonwealth, the fact that her offending conduct prevented her from taking part in the deployment she sought, and the expectation that defence members of her rank will set an example to others.
(3) No reasons for punishment were disclosed in cases no. 2 and 10, so that they take the matter no further.
(4) The remaining cases involving different offences further demonstrate the dangers in simple numerical comparisons between sentences. For example, in the s 56 DFDA (2015) decision where a FLTLT was convicted of knowingly making false or misleading statement contrary to s 56 of the DFDA, sentencing proceeded on the basis that there is no evidence of financial gain being concealed by the offender and that there was tangible evidence of contrition and remorse. As a further example, the s 135.2 (2015) decision where a WGCDR was convicted of obtaining a financial advantage contrary to s 135.2 of the CCA, the DFM categorised the offence as "regulatory in nature and, significantly… does not entail an element of dishonesty."
95 Notwithstanding the differences, however, consistent principles can be seen to emerge from a consideration of the cases on which the applicant sought to rely where reasons were available which align with those applied in the present case. Importantly, these include the seriousness of offending where benefits designed to ameliorate the rigours of service are concerned, given that the chain of command must be able to trust members of the ADF. For example, in case no. 8 an Army BDR was convicted of two counts of obtaining a financial advantage and two counts of making a false statement in a service document. In the course of his sentencing remarks, the DFM emphasised that "[t]he system of allowances made available to members of the ADF effectively means that the Commonwealth places their trust in their employees to only use those allowances appropriately and when authorised to do so. The law recognises in the case of offenders of this kind that general deterrence is an important sentencing objective." The DFM later emphasised the point again, finding that that "the victim is the Commonwealth and the offending involves a breach of trust. In a service where there are a multitude of allowances available for members, trust in Defence members who are granted such allowances is imperative for the proper operation of the system."
96 Finally, as the respondent contended, in determining whether the sentencing remarks of the DFM demonstrate jurisdictional error, the DFM's view as to the likely sentence which a civilian court might have imposed should be read fairly bearing in mind that this was an ex tempore decision and in the context of the sentencing remarks as a whole. In this regard, ultimately the DFM did not impose a sentence of imprisonment even approaching the three year sentence of imprisonment which he expected in all of the circumstances may have been imposed if charges of this seriousness had been before a civilian court. Rather, when the sentencing remarks are considered as a whole, the DFM's view on the likely sentence by a civilian court did not ultimately sound in any significant way in his decision as to the appropriate sentence, as senior counsel for the respondent submitted. In particular, in deciding to sentence the applicant here to a suspended sentence of six months imprisonment concurrently for charges 9 and 11, it is apparent that those particular matters which the DFM weighed against various mitigating factors were:
(1) the objective seriousness of the charges for which a maximum penalty of 10 years imprisonment was prescribed;
(2) that the applicant had used calculated strategies to abuse the system of rental assistance;
(3) that he had shown contempt for the privilege of rental assistance by his emails; and
(4) that he had knowingly and deliberately destroyed the trust on which the ADF relies from its members.
97 In line with the principles earlier explained, the question is not whether this court agrees with the sentence, that is, whether this court would have imposed the same sentence. The parties proceeded on the basis that it was necessary for the applicant to establish legal unreasonableness in the jurisdictional sense. In approaching the exercise of sentencing in the manner outlined above at [96] and explained in more detail earlier, no such error is apparent from the DFM's reasoning; nor may it be implied from the outcome. Rather, it is apparent that in line with s 70(1)(a) and (b) of the DFDA, the DFM has had regard to the need to maintain discipline in accordance with s 70(1)(b), taken account of the matters required by s 70(2), and applied sentencing principles in line with s 70(1)(a). As to the last of these matters, his approach reflects among other things the principle that a sentencing judge in a civilian court must take account of all of the circumstances of the offence and the offender so as to balance the many different and conflicting features, and reach a single sentence for each offence: Wong at [75]-[76]: Barbaro [43].
98 Finally, the applicant's reliance upon his expressions of remorse and the expert evidence led as to his mental state in support of his submission that the sentence was unreasonable ignores, with respect, that the DFM was not persuaded by the applicant's statements of remorse and did not accept the expert evidence. It was rightly not alleged that those findings were tainted by any error of a jurisdictional kind.
99 In all of the circumstances, therefore, I do not consider that the applicant has established that the suspended sentences of imprisonment were legally unreasonable or failed to take into account sentencing principles as required by s 70(1)(a) of the DFDA.