R v Ehrmann[2001] QCA 50

COURT OF APPEAL

McMURDO P

THOMAS JA

WILSON J

CA No 253 of 2000

THE QUEEN

v.

KAREN LYNN EHRMANN

BRISBANE

DATE 21/02/2001

JUDGMENT

THE PRESIDENT:  The applicant, Ms Ehrmann, pleaded guilty in the Townsville District Court on 11 August 2000, to 24 counts of forgery and 23 counts of uttering.  She was sentenced under section 21B Crimes Act 1914 (Cth) to imprisonment for a period of three years, with release after serving nine months on a recognisance of $1,000 to be of good behaviour for five years. She claims the sentence was manifestly excessive.

Ms Ehrmann was a member of the Australian Labor Party, an elected councillor in the city of Townsville, and secretary of her local branch.  From 1993 to 1996 she forged 24 applications for enrolment on the Commonwealth Electoral Role. 

Each of the applicants named on the enrolment forms was a real person. In some instances the applicant on the enrolment form knew nothing of the enrolment.  In other instances the applicants signed forms but left details blank.  Ms Ehrmann filled in a false address and sometimes other details without the applicant's authority.  No one consented to Ms Ehrmann's behaviour.

The ALP required its candidates to be selected at a plebiscite of members enrolled in that electorate.  In 1993 Ms Ehrmann and Shane Foster, also a City Council alderman and ALP member, formulated a plan to stack electorates with voters who did not live in that electorate so that those names could be used in preselection ballots to secure the endorsement of candidates favoured by Ms Ehrmann and Foster.

Ms Ehrmann used in the electoral forms the residential addresses of people close to her, such as her parents, children, and at least one other ALP member.

The postal addresses used were, in the main, post office boxes held in the names of Ms Ehrmann, Foster, or their nominees.  The ballot papers and plebiscites were almost invariably sent to the postal address.  In one instance a flat was rented by an associate of Ms Ehrmann; Ms Ehrmann paid the bond and rent; the flat was unoccupied and appears to have been used solely for the purposes of electoral fraud.

In 1993 Ms Ehrmann and Foster forged and uttered six electoral forms for use in a preselection ballot for a candidate they favoured in the local elections. 

In 1994 she forged and uttered 12 forms which she anticipated would be used by her in a preselection ballot on the retirement of a local member of parliament.  As the member of parliament did not retire, it is unknown what use was made of the false enrolments.

In 1996 the sitting State member did in fact retire and Ms Ehrmann forged six false enrolment forms for the purposes of securing her own endorsement as the ALP candidate. She was endorsed convincingly without the need to rely on the false enrolments, but she forged the forms with the intention that they would be used and, if necessary, relied on.  Ms Ehrmann was successful in obtaining preselection, but after being charged with these offences withdrew her endorsement.

Shane Foster pleaded guilty to 11 counts of forgery and 11 counts of uttering prior to his committal.  He was extremely co-operative with the prosecution and undertook to give evidence against Ms Ehrmann should she go to trial.  Like Ms Ehrmann he had no prior convictions and a number of excellent references were tendered on his behalf.

On 17 March 1999 Foster was sentenced to three months imprisonment with immediate release suspended for five years.  Were it not for his plea of guilty and very extensive co-operation the sentencing Judge indicated that the term of imprisonment would not have been suspended.

Ms Ehrmann's plea was not as timely as Foster’s. Whilst her lawyers requested a committal by way of hand up statements, the prosecution insisted on full evidence and she was committed for trial on over 60 charges.  Her lawyers made a number of written submissions to the prosecuting authorities and on 30 May 2000 the prosecution agreed to accept her plea of guilty to the present charges in full discharge of the indictment against her.

The prosecution case against her was rightly described as overwhelming.  Had the matter proceeded to trial it would have taken two to three weeks and necessitated the calling of 70 witnesses.

The prosecution submitted at sentence that bearing in mind the maximum penalty of 10 years' imprisonment on each count, the appropriate sentence was imprisonment for three years with 12 months to be actually served.  Defence counsel submitted that whilst a term of imprisonment was warranted the mitigating factors justified its full suspension.

The prosecution further submitted at sentence that Ms Ehrmann's criminal actions were done with the intention of benefiting her.   Defence counsel emphasised that Ms Ehrmann was pressured by others to commit the offences especially by Lee Birmingham, the ALP State organiser.  Electoral fraud was widespread in the ALP long before her involvement.  The forged enrolments were not used to vote in any local, State or Federal elections, but only for internal ballots.  They made no difference to any actual preselection.

The applicant has not had an easy life and has had her share of disappointments and heartbreak.  Despite this she has worked hard in the paid workforce and as a volunteer.  Her many excellent references tendered at sentence attest to her noteworthy achievements in the community and to her hard work to provide financially and emotionally for her children and grandchildren. It is tragic that these very significant achievements have been sullied by her serious shabby and unlawful behaviour.

She, her brother and grandchild were involved in a serious motor vehicle accident in September 1995.  At the time of sentence she was in need of gall bladder surgery.

Since being charged Ms Ehrmann has, not surprisingly, suffered from stress.  She has lost all prospects of a career in politics and her reputation as a valued and respected citizen in the Townsville community has been irreparably damaged.

She has suffered severe economic hardship and has been forced to sell her home.  She and her friends have been harassed by unknown, or unnamed persons.  A term of imprisonment has also meant her separation from her eight year old grand-daughter whom she helped to rear and also to nurse back to health from the serious injuries (which included a broken neck) suffered in the motor vehicle accident.

The learned primary Judge took into account all these mitigating factors, but rightly noted the seriousness of the crimes which interfere with the integrity of the electoral roll and affect the confidence of the public and the democratic process.  Such conduct increases public cynicism towards those who are involved in politics.  A reliable electoral roll and public confidence in it are matters fundamental to an effective democracy.

It is an aggravating factor when the perpetrator of the electoral fraud is a holder of public office and an office holder in a major political party.

Ms Ehrmann's counsel seeks leave to rely upon an affidavit of Stephen Lambrides, Deputy Director, Major Project Official, Misconduct Division, Criminal Justice Commission and junior counsel assisting the Honourable T F Shepherdson QC in an investigation into allegations of electoral fraud. Mr Lambrides relevantly deposes:

”In the course of the investigation Ms Ehrmann was interviewed and subsequently summoned to give evidence at the public hearings.  She gave evidence on 3, 4 and 11 October 2000, but it is not strictly correct to suggest that she co-operated and assisted.  She was obliged by law to answer questions.

During the hearings Ms Ehrmann gave evidence of a general nature of what she said was the extent of her knowledge of electoral fraud as well as providing some insights into the functioning of ALP State conferences, selection of delegates for such conferences and activities of certain factors.  She also made a number of specific allegations against a number of other persons.  These persons were summoned to give evidence and denied the allegations.  Ultimately, the Commission has no way of determining to what extent Ms Ehrmann was truthful in her evidence.

At the completion of hearings Counsel Assisting made closing submissions on the evidence to Mr Shepherdson.  In relation to the evidence or information given by Ms Ehrmann no recommendation for prosecution action was submitted by Counsel Assisting”.

The Court has power to admit new evidence in an appeal, but it is not lightly exercised, although it is not unusual to receive updated information about an applicant's performance on community based orders.

To be admitted it is usually necessary to show that, by its admission, some other sentence is warranted in law, for example, that the sentence imposed was manifestly excessive.

Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed. See R v Maniadis [1997] 1 Qd R 593, 596-597, and R v Leith [2000] 1 Qd R 660, 661.

In March 2000, Ms Ehrmann offered to assist the Australian Federal Police as to electoral fraud and was interviewed by them in April.  Although it was her intention to assist the authorities, the prosecution submitted at sentence that the information provided by her led nowhere.

The learned sentencing Judge referred to Ms Ehrmann's co-operation with the authorities and gave it some weight as a mitigating factor, although rightly concluded it was not as significant as in cases where real assistance is given in a timely fashion, for example in Foster's case.

Ms Ehrmann's allegation made at her sentence of widespread electoral fraud was not in itself a mitigating factor. With the benefit of hindsight, it seems plain that whilst it did not directly provide admissible evidence to establish a charge against any individual, it was certainly a catalyst leading to the establishment of the Shepherdson Inquiry into electoral fraud.

The extent of Ms Ehrmann's co-operation with the Shepherdson Inquiry, which was required by law, does not suggest that her Honour's assessment of Ms Ehrmann's limited co-operation at the time of sentence was incorrect.  It does not demonstrate a basis upon which her sentence could be shown to be manifestly excessive.  I would refuse the application to receive the further evidence but I note that even if the evidence were to be received by this Court it does not, in my view, significantly improve Ms Ehrmann's position.

The sentence has not been attacked on any other basis.  It is not, for example, suggested that there is unreasonable disparity between the sentence imposed on Ms Ehrmann and that imposed upon Foster.  Foster pleaded guilty to a lesser number of charges and did so at an extremely early stage, offering his full co-operation with the authorities, including an offer to give evidence in any trial involving Ms Ehrmann.

The seriousness of Ms Ehrmann's conduct in fraudulently tampering with the electoral roll, especially as a holder of public office and of an office within a major political party, cannot be down played.  As Mr Hanson QC has pointed out today, her conduct was a fraud upon opposing candidates for preselection and their supporters, a fraud upon the person who was falsely enrolled and a fraud upon the public in that the candidate for their selection had not been honestly chosen according to party practices.

Her conduct justified a salutary penalty as a deterrent to others who might contemplate such behaviour and also to show the abhorrence of the community towards conduct which would jeopardise our treasured democratic system.  The sentence was within the appropriate range and the early recommendation for release adequately recognised the significant mitigating factors in this case.  I would refuse the application for leave to appeal against sentence.

THOMAS JA:  Ms Ehrmann engaged in a form of political cheating designed to obtain personal advantage for herself and her political allies.  She has to this point served six months of the mandated nine months of a three year sentence. The main thrust of the helpful submissions of Mr McLennan on her behalf is that she should be immediately released because of certain events since her sentence, notably the Shepherdson Inquiry at which Ms Ehrmann gave evidence.

The submissions are based on an affidavit of Mr Lambrides which is said to show that the learned sentencing Judge undervalued Ms Ehrmann's co-operation.  It is also urged that the value of that information and co-operation can now be seen more clearly in the wake of the Shepherdson Inquiry and it could at the time of her sentence.  It is said that there will be a miscarriage of justice unless the Court refers to the events that have occurred after sentence.  Mr McLennan refrained from submitting that his client should be rewarded for triggering the Shepherdson Inquiry, although such perception seems to me to underlie some of the submissions.  It is suggested that the allegations made on her behalf by her counsel have now been verified and that her Honour may have given more weight to them if she had had the benefit of hindsight.  In particular, the applicant's value as an informer is said to have been underrated by the learned sentencing Judge.

Having studied the material, it seems to me that her Honour acted on what Ms Ehrmann's counsel alleged on her behalf and that there is no sufficient reason to think that her Honour entertained doubts or reservations about the context in which Ms Ehrmann offended.

No false assumptions have been demonstrated on the part of the learned sentencing Judge.  The fact that many others were guilty of similar malpractice was not a mitigating factor and it is not a mitigating factor now.  It is therefore immaterial that her assertions in this respect may have been vindicated by a public inquiry.

It therefore seems to me that the further evidence that was tendered on appeal designed to show the course of that inquiry and the extent to which Ms Ehrmann participated in it should not be received, consistently with the principles in the Queen v Maniadis [1997]1 Qd R 593. I would add that the further evidence does not in any event carry sufficient weight or conviction to justify the view that the sentence was erroneous. 

It was not otherwise contended that the sentence is not sustainable.  In a case such as this I consider deterrence to be a very important factor.  The crime is not victimless, as was submitted below.  Public morality, the democratic process and the public at large are the victims of such distortions.  I do not think that the Courts can send a signal that the electoral system may be polluted by forgery as it was here, without serious punishment. 

The sentence therefore cannot be regarded as excessive. I would refuse the application.

WILSON J:  I agree with the President and Justice Thomas that the affidavit of Mr Lambrides ought not to be admitted and with the reasons given by their Honours.  I can see no error in the approach of the sentencing Judge.  Accordingly, I,too, would refuse the application for leave to appeal against sentence. 

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused. 

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