The Queen v Selle[1998] QCA 291

COURT OF APPEAL

McMURDO P

PINCUS JA

MACKENZIE J

CA No 205 of 1998

THE QUEEN

v.

ALEX SELLEApplicant

BRISBANE

DATE O7/08/98

JUDGMENT

PINCUS JA: The applicant was convicted of offences of dishonesty in the District Court and was fined and ordered to pay compensation and convictions were recorded. The only complaint made by counsel for the applicant for leave to appeal against sentence was as to the recording of convictions. There were three charges against the applicant to which he pleaded guilty. The first was that he dishonestly applied to his own use certain gravel, and the second and third were that he was privy to omitting from a document called a "Private Works Undertaking" the fact that certain equipment owned by the Inglewood Shire Council was used, with intent to defraud.

The judge remarked during the course of argument that he did not intend to impose any additional penalty because of these second and third offences which I have mentioned. It seems, therefore, that His Honour regarded them as of minor significance and that one should focus for the purposes of this application upon the principal offence.

The applicant was an overseer at relevant times, employed by the Council. He made arrangements with landholders on behalf of the Council to extract fine gravel from their lands. What he did over the relevant period was to sell off coarse gravel, which was a by-product of the process of extraction, at a profit of about $4000, that being paid by the purchasers of the gravel to a company which was associated with the applicant and another person.

It has been pointed out by counsel for the applicant that during the argument on sentence, the prosecutor told the judge, in effect, that Council policy was that it exercised a discretion whether or not to dismiss employees who had a criminal conviction and that because of the references which the applicant had, one would be surprised if recording of a conviction resulted in the applicant being sacked. The judge made no comment on that submission, nor did His Honour express any view as to the likelihood of the applicant being dismissed. The applicant now desires to adduce evidence to show that he has in fact been dismissed and to show that this occurred because of a letter which the Criminal Justice Commission wrote to the Council, just after the trial.

This Court might well admit evidence of events which occurred after sentencing as showing that the basis upon which a particular person was sentenced was seriously erroneous. An example, perhaps, would be a case where an applicant said below he would make prompt restitution of money dishonestly obtained, but was sentenced on the basis that that was a false promise although it turned out to be a true one. The present is not such a case. There was an obvious possibility that, on being convicted, the applicant would be dismissed, as commonly appears to happen with employees found guilty of substantial dishonest conduct. That the risk has eventuated, that is the risk of dismissal, does not falsify any of His Honour's reasons, nor show that His Honour exercised his discretion wrongly.

Counsel for the applicant has stressed the personal circumstances of the applicant, that he is a man in his 50s, that he has been with the Council for a long time; no doubt this is a sad and serious event in his life. From that point of view, some might feel sympathy for him. Nevertheless it is as I have said, quite a common consequence of serious dishonesty in employment that the offender loses his job; it is a risk that such people run.  The fact that, in this case, the risk eventuated does not seem to me to take the case into a special category: it would have to be in a special category to justify our interference with the learned primary judge's discretion. His Honour exercised it in a way which, in my view, was plainly within the range of a proper exercise of discretion and I see no ground for interfering with the outcome.

I would, for myself, decline to admit the further evidence which has been tendered and I would dismiss the application for leave to appeal.

THE PRESIDENT: I agree.

MACKENZIE J: I agree.

THE PRESIDENT: The orders are:

Application to admit further evidence refused.

Application for leave to appeal against sentence refused.