Citation: R v Bernard [1999] NSWCCA 156
Court: Court of Criminal Appeal, New South Wales
Date: 11 June 1999
Judge(s): Grove J; Carruthers AJ
Background
The applicant, a medical practitioner, had become involved in commercial ventures separate from his medical practice. When those ventures began to fail, he passed three valueless cheques totalling approximately $470,000 across two banks, exploiting his status as a valued customer to draw against uncleared deposits. This practice, historically known as "kite flying," involved manipulating the clearance lag between banking institutions.
The applicant was sentenced in the Newcastle District Court on two counts of passing valueless cheques, with one further similar matter taken into account. He received fixed terms of 12 months and 3 months imprisonment respectively, both to be served by way of periodic detention (a form of part-time imprisonment served on weekends). He was also bankrupt at the time of sentencing, and evidence before the sentencing judge indicated he suffered from a diagnosed mental illness that affected his capacity to manage the pressures of both his medical practice and his business ventures.
The applicant sought leave to appeal against the severity of his sentence, arguing in part that he would benefit from a community service order rather than periodic detention, as uninterrupted weekends would assist him in rebuilding his damaged medical practice.
Legal Issues
- Whether the sentencing judge placed excessive weight on general deterrence when imposing sentence
- Whether the sentencing judge breached the principle in R v De Simoni by effectively punishing the applicant for a more serious offence (fraud or obtaining a benefit by deception) than the charges for which he was convicted
- Whether the overall sentence was manifestly excessive in the circumstances
Decision
The Court of Criminal Appeal found the application entirely without merit and refused leave to appeal.
On the question of general deterrence, the Court observed that the sentence was far from the maximum available. The order for periodic detention already built in a significant element of leniency. Further, by the time of the appeal, the applicant had completed the second count in full and had progressed to stage two of periodic detention on the first count, which the Court characterised, consistent with its earlier decision in R v Hallocoglu, as no more onerous than community service in practical effect.
On the De Simoni argument, the Court found no breach. Although the sentencing judge had used the word "fraud" in passing remarks, the Court interpreted this as a reference to the inherently dishonest nature of the applicant's conduct rather than as an indication that the judge was sentencing for a more serious offence. The Court noted that the judge had expressly acknowledged the prosecution's decision not to proceed with charges of obtaining a benefit by deception, and there was no indication he had punished the applicant beyond the scope of the offences for which he was convicted.
The argument that a community service order would be preferable because it would leave the applicant's weekends free was also rejected. The Court found no principled basis for disturbing the sentence on those grounds.
Orders Made
- Leave to appeal refused
Key Takeaways
- The Court of Criminal Appeal confirmed that periodic detention, particularly once a detainee has reached stage two (equivalent in effect to community service), can represent a substantially lenient outcome rather than a harsh one.
- A sentencing judge's use of the word "fraud" does not automatically constitute a De Simoni error. Where the remarks as a whole reflect a reference to the dishonest character of the proven offending rather than punishment for an uncharged offence, no breach is established.
- Where a sentence already reflects significant leniency through a collateral order such as periodic detention, a submission that an even less onerous penalty is warranted faces a high bar.
- The personal circumstances of an offender, including mental illness and professional damage, are relevant mitigating factors but do not guarantee a reduction in sentence when the objective seriousness of the offending is significant.
- Passing valueless cheques in large sums, even without a formal fraud charge, was treated by the Court as conduct that is self-evidently dishonest and properly the subject of general deterrence considerations.
Legislation and Cases Referenced
Cases:
- R v Hallocoglu (1992) 29 NSWLR 67
- R v De Simoni (1981) 147 CLR 383
Legislation: No specific legislation was cited in the judgment text.