Citation: Regina v Gardiner [2002] NSWCCA 209
Court: Court of Criminal Appeal, New South Wales
Date: 5 June 2002
Judge(s): Dowd J, Smart AJ
Background
The appellant was a former New South Wales Police Sergeant with many years of service who, over nearly three years from 1996 to 1999, misappropriated approximately $72,500 from the NSW Police Cricket Association. He had served as the Association's President and at times also as its Secretary and Treasurer, giving him control over funds received from an external printing and publishing arrangement. He systematically diverted cheques from that arrangement into his personal bank account, using the money for personal and family expenses including to address a gambling problem.
The appellant also gave false evidence before the Police Integrity Commission in April 2000, initially denying receipt of any cheques made out to him personally. During the same hearing, after detailed questioning made his denials untenable, he admitted he had lied under oath.
He pleaded guilty in the Local Court to 15 counts of fraudulent misappropriation and one count of false swearing, and was committed for sentence to the District Court. He then sought leave to appeal against the sentences imposed on the misappropriation counts, arguing they were excessive. The appeal against the false swearing sentence was not pressed.
Legal Issues
- Whether the sentences on the fraudulent misappropriation counts were manifestly excessive, having regard to the totality of the objective and subjective circumstances
- What weight should be given to repayment of misappropriated funds in sentencing for this type of offence
- Whether the appellant's status as a former police officer, his consequent need for protective custody, and his serious medical condition constituted special circumstances warranting a longer ratio of parole to non-parole period
- Whether the admission of false swearing on the same day it occurred was a relevant mitigating factor for the false swearing count
- How the false swearing sentence should be structured to run cumulatively on the misappropriation sentences
Decision
The Court of Criminal Appeal partly allowed the appeal. It found that the District Court had fallen into error on certain counts by failing to reflect the full significance of several mitigating factors, including the appellant's prior good character, his lengthy and decorated police service, his serious ongoing medical condition (which affected his experience of custody), his need to serve time in protective custody as a former police officer, and the partial repayment of the misappropriated funds.
On the question of repayment, the Court confirmed that repayment is a significant mitigating factor in fraud and misappropriation cases, reflecting both remorse and a concrete effort to reduce harm to victims. The Association had received approximately $13,000 back prior to sentencing, reducing the net loss to around $59,500.
The Court also considered the unusual circumstances of the false swearing count, noting that prosecutions for false swearing or perjury where the witness corrects their evidence in the same hearing are uncommon. The Court did not regard the 15-month sentence with a six-month non-parole period for that count as lenient, contrary to the Crown's submission. Special circumstances were found to justify the structure of that sentence given its cumulative operation on the misappropriation counts.
For the three counts involving the largest individual amounts ($10,000 and $14,000), the Court allowed the appeals, quashed the original sentences, and substituted revised terms. The sentences on the remaining 12 counts were upheld and all counts continued to be served concurrently.
Orders Made
- Leave to appeal granted on the fraudulent misappropriation counts
- Appeals dismissed on Counts 1, 2, 3, 4, 6, 8, 9, 10, 12, 13, 14, and 15 (fixed terms ranging from six to fifteen months, all concurrent)
- Appeals allowed on Counts 5 and 11: sentences quashed and replaced with 21 months imprisonment, non-parole period of 15 months, commencing 22 February 2002 and expiring 21 May 2003
- Appeal allowed on Count 7: sentence quashed and replaced with 2 years imprisonment, non-parole period of 15 months, commencing 22 February 2002 and expiring 21 May 2003
- Commencement date of the false swearing sentence (Count 16) varied so that the 15-month sentence (with a six-month non-parole period) commences 22 May 2003, expiring 21 November 2003
- Appellant eligible for release on parole on 21 November 2003
Key Takeaways
- Repayment of misappropriated funds is a meaningful mitigating factor in sentencing for fraud and misappropriation offences, and the Court of Criminal Appeal affirmed its relevance here even where repayment was only partial.
- A former police officer's need to serve time in protective custody, and the heightened personal risk that status creates in prison, are recognised as factors that make imprisonment more burdensome and may affect the appropriate sentence structure.
- Serious medical conditions affecting an offender's experience of custody are relevant to the exercise of sentencing discretion, particularly when assessing special circumstances for the purpose of adjusting the non-parole to total sentence ratio.
- Where cumulative sentences are imposed, it is permissible to find special circumstances and adjust the non-parole period on the later sentence to account for the overall time the offender must serve before becoming eligible for parole.
- Prosecutions for false swearing or perjury where the accused corrects their evidence during the same proceeding are uncommon; the Court observed this fact without treating the same-day admission as eliminating the seriousness of the original conduct.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Assets Recovery Act 1990 (NSW)
Cases:
- Phelan (1993) 66 A Crim R 446
- R v Simpson [2001] NSWCCA 534
- R v GDR (1994) 35 NSWLR 376
- Pearce v The Queen (1998) 194 CLR 610
- Ryan v The Queen (2001) 75 ALJR 815