Director of Public Prosecutions v Moffat
[1998] QCA 383
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- Director of Public Prosecutions v Moffat[1998] QCA 383
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Director of Public Prosecutions v Moffat[1998] QCA 383
Director of Public Prosecutions v Moffat[1998] QCA 383
COURT OF APPEAL
McMURDO P
McPHERSON JA
SHEPHERDSON J
CA No 290 of 1998
THE QUEEN
v.
| CLIFFORD MOFFAT | (Respondent) |
| and | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | (Appellant) |
CA No 291 of 1998
THE QUEEN
v.
| CLIFFORD MOFFAT | (Respondent) |
| and | |
| ATTORNEY-GENERAL OF QUEENSLAND | (Appellant) |
BRISBANE
DATE 08/10/98
JUDGMENT
McPHERSON JA: These are appeals by both the Commonwealth Director of Public Prosecutions and the State Attorney-General against the inadequacy of sentences imposed on the respondent. He was convicted in the District Court at Brisbane on a Federal information charging five counts of forging and five of uttering documents issued by a Commonwealth department. He was also convicted on a State indictment charging him with two counts of forgery, each with a circumstance of aggravation, and two of uttering as well as one of fraud with circumstances of aggravation.
The total of the amounts involved in the State charges was some $20,680 of which that in count 3 was an amount of $14,680. On the Federal charges the total amount was $21,780 or thereabouts but there was also a schedule to which the respondent pleaded specifying 134 forging and uttering offences involving amounts totalling $83,172.69. The grand total for all offences was therefore $125,633.16. There is no prospect of restitution, the respondent having in August 1997 been made bankrupt on the application of the Commonwealth, apparently for non-payment of income tax.
The effective sentences imposed for these offences were imprisonment for nine months in respect of the Commonwealth charges and the State offence of fraud, and probation for three years for the State offences of forgery and uttering. However, the nine months was ordered to be served in the form of intensive correction or an order to that effect, which in practical terms meant that the respondent would not be continuously incarcerated.
There is a question whether such an order could legitimately be made in the terms specified by the learned sentencing judge; but, in the event, I do not consider it will be necessary to decide that question.
The respondent, who was aged 50 years at sentencing in 1998, was a chartered accountant who had been in private practice for some 20 years. The Commonwealth offences were committed when he received cheques from the Taxation Office drawn in favour of various of his clients. He endorsed them in his favour and then deposited them to the credit of his own bank account. In this way he obtained, in all, some $104,953 from the Commonwealth. The State offences involved his altering, by increasing, the amount on cheques drawn by clients in his favour for services rendered and, in the case of the fraud charge, depositing to his own account a cheque for $14,680 that ought to have been credited to his trust account. All the offences were committed during a period of about 18 months in 1996 and 1997.
The underlying explanation for his committing the offences was the respondent's pathological predilection for gambling. The money was squandered at the TAB. It seems that he had always been inclined to gamble. There is a psychologist's report that attempts to trace its origin back to childhood days, but he evidently kept the tendency within limits until later in his life. Two events are said to have resulted in his losing control over his gambling tendency. One was his accounting partner's death in 1985, which is said to have removed a restraint previously restricting his gambling habit. The other was his wife's sudden death in 1990. It may be noted, however, that he met his second wife in 1991 and married her in 1993. That marriage, I understand, still persists. It was in 1990 that he began to "borrow" from his clients, and by 1996 he had lost his house through failure to control his gambling habit. The offences charged were, it will be recalled, committed from early 1996 to mid-1997. He has lost the right to practise as a chartered accountant and at the time of sentencing was unemployed.
Apart from the subject offences, the respondent has had an unblemished history. He has a record of community service and some impressive written references in his favour. He helped to foster, and brought up as part of his own family, the daughter of his wife's deceased sister. It goes in his favour that instead of committing suicide, as he at one time contemplated, he instead went to the police and confessed his offences. His attitude throughout was one of complete cooperation and he pleaded guilty at the earliest practicable moment. Against this it must be said that his apprehension and his being charged with these offences were inevitable on any view of the matter. That does not seriously, however, detract from the mitigating impact of his cooperative conduct.
The fact remains that the offences were numerous and the total amount involved was large. His compulsive gambling habit may explain but it cannot excuse his extensive offending behaviour in this instance, any more than in any of the many other similar cases which have come before this Court. Many serious cases of this kind have gambling as their basic cause. Among the examples that have been cited to us are R v. Seeney (CA No 170 of 1988 11 August 1988) and R v. Peters (CA No 67 of 1989 16 May 1989) to which some further reference will be made later in these reasons. In that respect - that is, the gambling addiction - the respondent's problem really does not differ in substance from that of other individuals who commit serious offences because of personal problems with alcohol or drug abuse.
The maximum sentence for the Commonwealth offences, which are the main focus of attention here, is imprisonment for 10 years. The State offence under section 408C carries a similar maximum sentence where the amount of the misappropriation is over $5,000, which is the case in respect of count 3.
The head sentence imposed here of only nine months, taking even the Commonwealth offences alone, is substantially out of line with sentences for comparable offences of equal gravity that were less numerous and involved smaller amounts of money. Even counsel for the respondent at the hearing submitted that a head sentence of three years was appropriate with a prospect of release after six to nine months.
This accords with standards suggested in a number of decisions of this Court or its predecessor in the last 10 years. In R v. Phipps (CA No 80 of 1990 6 June 1990) the Court of Criminal Appeal increased the penalty from a five year recognisance to imprisonment for three and a half years to be released on a bond after six months. That was in respect of a single count of misappropriation of a sum of $42,000 committed by a senior postal clerk in the employ of the Commonwealth. In R v. Geaney (CA No 179 of 1990 29 October 1990) a sentence of imprisonment for three years was not disturbed in the case of a single count of misappropriation of over $100,000 by a company director. There was no recommendation for parole in that instance. In R v. Viola (CA No 134 of 1996 5 June 1996) convictions for eight counts of forgery and uttering by a solicitor's secretary were punished by reducing sentences on appeal from four years to three years with a recommendation for parole after 12 months. The offender there, who was aged only 22, forged signatures on eight cheques and took proceeds amounting to $65,000 or a little more.
R v. Seeney (CA No 170 of 1988 11 August 1988) involved a 38- year-old sales manager with an uncontrollable gambling habit, whose head sentence was increased from probation for three years to imprisonment for three years with a recommendation for parole after nine months. There was a plea of guilty to 113 stealing and four misappropriation counts involving a total of only $7,972. Another gambler, R v. Peters (CA No 67 of 1989 16 May 1989) was a bank accountant who sustained a three year sentence with parole after 12 months, which was not disturbed on appeal. There there were eight stealing counts as a servant, but also an offer of full restitution of $10,678 which was taken into account in arriving at the sentence.
It is, in my opinion, unnecessary to duplicate references showing that, in cases of this kind, a head sentence of three years appear to be a common measure with appropriate allowance being made for pleas of guilty and the offender's often good record in other respects as well as other personal factors by making a generous recommendation for early parole. Some period of actual custody has been the rule. That sentencing pattern will, if the sentence in this case is allowed to stand, be unnecessarily distorted and for no good reason that I can perceive in this particular case.
The pattern is also borne out by the more recent decision of this Court in R v. Holdsworth (CA No 94 of 1993 22 June 1993), where the offender was sentenced for offences of defrauding the Health Insurance Commission of an amount of $5,685.44 over a nine month period. The sentence imposed there was 12 months imprisonment with an order for release after three months. The amount, it will be noticed, was very much smaller than it is in this case.
I consider, therefore, that both appeals should be allowed and the sentences and orders below set aside. Instead, head sentences of imprisonment for three years should be imposed in respect of the offences in the two indictments with a recommendation for parole or release after seven months.
This will accord both with the comparable decisions already referred to and, as it happens, with the sentences that the learned sentencing judge said he originally had in mind after taking into account the respondent's personal circumstances, his extensive cooperation with the police and his early pleas of guilty.
The sentence of imprisonment for three years should, in my opinion, be imposed specifically in respect of count 3 in the State indictment which is a charge under s.408C of the Code of fraudulently appropriating $14,680 with circumstances of aggravation.
In respect of each of the other four offences in counts 1, 2, 4 and 5 of that indictment, I would impose a sentence, more or less nominal, of imprisonment for three months, with all sentences to be served concurrently. The head sentence is, however, intended to reflect the criminality of all of the matters covered by that indictment.
So much for the State indictment. Turning to the Federal information, the effective sentence in this instance should, in my opinion, also be imprisonment for three years. For convenience it should be imposed in respect of the offence in count 9 in that information, with the offences in the other nine counts each carrying a sentence of imprisonment for three months. In arriving at those sentences and in what follows the 134 offences in the schedule are, it should be recorded, expressly taken into account under s.16BA of the Crimes Act 1914. All of those sentences are to be served concurrently.
It is not possible in the case of the Federal offences simply to duplicate the recommendation for early parole made in the case of the State indictment. That is because s.19AC(1) of the Crimes Act requires, in the case of a sentence for three years or less, that a recognisance release order be made instead of fixing a non-parole period. For that it is necessary to go to s.20(1)(b) of the Act conferring power to order release, on security being given, after the offender has served a specified period of imprisonment.
In this instance the period that ought to be specified is, in my opinion, seven months. It would ordinarily have been nine months but account is taken, as I mention later, of the fact that the respondent has already undergone a period of intensive correction of about two months since the time of sentencing.
The respondent is, therefore, sentenced to imprisonment for three years in respect of the offence in count 9, and to three months in respect of the other nine offences in the Federal information, all to be served concurrently but subject to an order that, after serving seven months, the respondent will be released upon giving security by recognisance in the sum of $500 to be of good behaviour for three years. No order for payment of a pecuniary penalty under s.20(1)(a)(iii) is sought or is included as a condition of that recognisance.
The period of seven months is, as already mentioned, arrived at after taking account of the fact that the respondent has already served some two months under the terms of the intensive correction order imposed on 7 August 1997, which was the date of the sentencing.
Under s.16F(2) of the Crimes Act it is necessary that the following explanation be given to the respondent who, we are informed, is in Court:
(a)That under the sentence he will be required to serve a term of imprisonment of at least seven months;
(b)That it is a condition of the order that he be of good behaviour for at least three years;
(c)That if he fails to be of good behaviour for three years he may be dealt with by ordering that he serve the remainder of the three year term of imprisonment and that the recognisance he has given may be discharged or varied.
In so far as it may be necessary and possible to do so, it is further ordered that the terms of imprisonment imposed in both the Federal and State proceedings are to be served concurrently; and that those sentences are all ordered or directed to commence from today, that is, 8 October 1998.
A warrant will issue for the arrest of the respondent, which is to lie in the Registry for seven days or such other period as may be ordered.
THE PRESIDENT: The learned sentencing Judge showed commendable lateral thinking in imposing a combination of sentences in this case, namely, nine months imprisonment to be served by way of an intensive correctional order and a three year probation order which, in some ways, were comparable to the sentence which the appellants argue was appropriate, namely, three years imprisonment with a recommendation for parole after nine months.
These offences are, however, so serious that despite the mitigating factors and significant rehabilitation attempts of the respondent that it is my view that some actual period of custody must be served to bring home to the respondent the seriousness of his conduct and to deter others.
I agree with Mr Justice McPherson that the sentence imposed is inadequate. For the reasons given by him I agree with his proposed orders.
SHEPHERDSON J: I agree with the orders proposed by Mr Justice McPherson and the reasons which he has given. I also agree with the observations of the President.
THE PRESIDENT: The order of the Court is as set out by Mr Justice McPherson.
Mr Maguire, is it necessary in this case to make any recommendation about a suicide watch or‑‑‑‑‑
MR MAGUIRE: It's probably, Your Honour, in the circumstances in that he has been treated for a major depressive disorder and in view of his past conduct, yes.
THE PRESIDENT: Yes, the Court recommends to the Community Correctional Authorities that he be placed on suicide watch whilst in custody and note that he is currently on medication for a depressive illness. Yes, thank you.