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Court of Criminal Appeal 6 March 2001

Regina v Clark

[2001] NSWCCA 69

Fraud & dishonesty
SENTENCING EXTENDED COURSE OF DISHONESTY

Citation: Regina v Clark [2001] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 6 March 2001
Judge(s): Meagher JA, Hulme J, Smart AJ

Background

The appellant, a postal manager employed by Australia Post, was convicted by a jury of two offences of stealing from his employer. The first offence involved the theft of approximately $3,300 from the Woollahra Post Office between March and June 1997. The second, more serious, offence involved the theft of nearly $48,000 from the Coogee Post Office between July 1997 and April 1998.

The appellant carried out the thefts over an extended period by creating false computer records designed to make the stolen funds appear as legitimate customer refunds or compensation payments. Evidence also emerged at trial that he had approached two colleagues and encouraged them to tell investigators that records had been discarded, and later suggested that one of them might need to give false testimony in court.

At sentence in the District Court, Gibson DCJ imposed a fixed term of eight months for the first offence and two years' imprisonment with a non-parole period of eight months for the second offence, to be served concurrently. The appellant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge improperly treated the appellant's post-offence conduct (approaching colleagues to cover up the crimes) as an aggravating factor, given that no related charges had been laid
  • Whether the principle in The Queen v De Simoni (1981) 147 CLR 383 precluded the court from having regard to uncharged conduct of a different nature when assessing penalty
  • Whether the judge incorrectly assessed the appellant's medical prognosis and the support available from his partner
  • Whether the overall sentence was excessive in the circumstances

Decision

Smart AJ, with whom Meagher JA and Hulme J agreed, acknowledged that the sentencing judge probably did take into account the appellant's apparent attempt to pervert the course of justice, which was conduct for which no charge had been laid. This raised a concern under the De Simoni principle, which holds that a sentencer must not punish an offender for a more serious offence than the one charged. Smart AJ also noted caution about placing too much weight on comments made during argument, preferring to focus on the judge's formal remarks on sentence.

Notwithstanding that concern, the Court found the sentence was lenient rather than excessive. The core of the offending was serious: a position of trust had been abused, a substantial sum exceeding $50,000 had been taken over an extended period, and elaborate false records had been created to conceal the thefts. These features, considered together with the appellant's subjective circumstances, supported a full-time custodial sentence.

The Court rejected the remaining grounds of appeal. The question of appropriate medical treatment in custody was primarily a matter for prison authorities, and any difficulty with medication administration did not warrant disturbing the sentence. The non-parole period of eight months was described as exceedingly lenient, demonstrating that the judge had made full allowance for the appellant's personal circumstances, health, and age.

Smart AJ concluded that no lesser sentence was reasonably open on the facts, even accepting the appellant's contentions about aggravating factors, medical condition, and the availability of support from his partner.

Orders Made

  • Leave to appeal against sentence refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that conduct relevant to guilt is not automatically relevant to penalty, and a sentencing court must take care not to punish an offender for uncharged offences under the principle in De Simoni.
  • A finding that a sentence may have incorporated impermissible aggravating factors does not automatically lead to a successful appeal where the overall sentence is demonstrably lenient on the objective facts.
  • Where an offender abuses a position of trust, steals a substantial sum over an extended period, and takes active steps to conceal the offending, a full-time custodial sentence will ordinarily be required even where significant subjective mitigating factors are present.
  • Difficulties with the administration of medication in custody do not, without more, provide a sufficient basis to set aside an otherwise appropriate sentence.
  • In dismissing the appeal, the Court characterised both the head sentence and the non-parole period as lenient, underscoring that leniency in a challenged sentence is a significant obstacle to a successful severity appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including ss 16A, 16G and 71

Cases
- The Queen v De Simoni (1981) 147 CLR 383 (High Court of Australia, Gibbs CJ at 389)