FEDERAL COURT OF AUSTRALIA The Queen v Cobb [1999] FCA 159 THE QUEEN v MICHAEL ROY COBB AG 114 OF 1998 SPENDER, HIGGINS & WEINBERG JJ 26 FEBRUARY 1999 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 114 OF 1998 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: MICHAEL ROY COBB Respondent JUDGES: SPENDER, HIGGINS & WEINBERG JJ DATE OF ORDER: 26 FEBRUARY 1999 WHERE MADE: CANBERRA THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 114 OF 1998 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: MICHAEL ROY COBB Respondent JUDGES: SPENDER, HIGGINS & WEINBERG JJ DATE: 26 FEBRUARY 1999 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 This is a Crown appeal against the leniency of sentences imposed upon the respondent in the Supreme Court of the Australian Capital Territory on 16 November 1998. 2 On 30 October 1998 Michael Roy Cobb was found guilty by a jury on five counts of imposing upon the Commonwealth by an untrue representation, contrary to s 29B of the Crimes Act 1914, and one count of defrauding the Commonwealth, contrary to s 29D of that Act. At the times of the commission of these offences, the respondent was a member of the House of Representatives, having been first elected to parliament in 1984. All of the charges on which he was convicted arise from claims made by him for the payment of allowances payable to him as a consequence of his position as a member of parliament. 3 The first four of the imposition counts allege that at various times in 1994 the respondent had submitted claims for private vehicle allowance, representing in each case that he had used a particular Ford Falcon sedan with a cubic engine capacity of 4100-4200 cc to travel specified distances. Each of these counts in the indictment alleged that the imposition by the untrue representation was "with a view to obtain a benefit, namely, an increased allowance". It was not in dispute at the trial that the respondent had used a Daihatsu motor vehicle with an engine capacity of 1300 cc, and that a higher allowance was payable in respect of travel with a vehicle with a greater engine capacity. It was a requirement that a claimant had to specify the type of vehicle and its engine capacity on the claim form. The respondent asserted, both in his initial record of interview with the police and at trial, that he did not know that there was a different allowance for large and for small cars. 4 The fifth count of imposing upon the Commonwealth concerned a representation by the respondent in late 1994 that on 96 occasions he had been accompanied by a staff member on electoral business. The respondent requested that the amount payable in respect of such travel, an amount of $5,088.00, be sourced from his staff travelling allowance and applied towards his (overspent) charter allowance. In fact there were only 7 occasions on which he had been accompanied by a staff member, so that on 89 of the instances represented by the respondent he had not been accompanied by a member of staff. 5 The count of defrauding the Commonwealth was based on a claim by the respondent that he had stayed overnight in Canberra on 27 October 1995. The respondent claimed he had stayed overnight in his office at Parliament House before getting an "early start" on the following morning to travel to his electorate. The travelling allowance paid in respect of this claim was $145.00. The evidence before the jury established that the vehicle used by the respondent was filled with petrol at 8.37 pm on the evening of 27 October 1995 at Parkes, New South Wales, and that on the following day, 28 October 1995, he had attended a function in Wilcannia in western New South Wales, arriving there in time for lunch. 6 On 16 November 1998 Einfeld J convicted the respondent of each of the six counts on which he had been found guilty. In respect of each of the first four counts of imposition he imposed a fine of $1,000.00, and in respect of the count of imposition concerning staff travel, a fine of $5,000.00 was imposed. In respect of the offence of defrauding the Commonwealth, his Honour imposed a sentence of imprisonment for two years to be wholly and immediately suspended upon the respondent entering into a recognisance self in the sum of $5,000.00 to be of good behaviour for a period of two years and paying into court not later than 16 December 1998 the balance of the sum of $5,625.68 which had been wrongly paid to him as a result of the offences committed by him, and his conduct in relation to counts 10 and 11, of which he was acquitted. His Honour also imposed a fine of $5,000.00 in respect of the offence of defrauding the Commonwealth. 7 The grounds on which the Crown appeals are that the learned sentencing judge erred in that the individual sentences which he imposed with respect to each count were manifestly inadequate and that the total effect of the sentence of two years' imprisonment, suspended immediately upon entering into a recognisance self in the sum of $5,000.00 to be of good behaviour for two years, with total fines of $14,000.00, was manifestly inadequate. 8 The central contention on behalf of the Crown was that the learned sentencing judge should have sentenced the respondent on the basis that there were six offences of fraud, conduct of dishonesty occurring over a long period of time and involving a significant breach of trust by a person in a position of responsibility, and that consequently the learned sentencing judge was obliged to impose at least a short term of actual imprisonment as part of the sentence. 9 In relation to the first four counts of imposition, the case was left to the jury on the basis that it was unnecessary that they find that the respondent intended to obtain an increased allowance in order to convict. Notwithstanding the particularisation in the charges that the object of the untrue representation was to obtain the additional allowance, the Crown successfully argued, over the objections of the defence, that the trial judge should direct the jury that any payment was sufficient, and the jury did not have to be satisfied that the representation was made with a view to obtaining the additional allowance. Whether or not his Honour was correct to permit the Crown to so alter the basis upon which it had put its case is not in issue on this appeal. 10 The result is that the jury did not need to determine whether that more culpable, even fraudulent, intention was present. However, his Honour was invited, for sentencing purposes, to find that it was. His Honour declined to do so. 11 There is an issue as to whether or not it was open to his Honour to have found, in effect, an intent to defraud, when that intent is not an element of an offence contrary to s 29B (which carries two years' imprisonment), though it is of an offence contrary to s 29A (false pretences - 5 years ) and s 29D (defrauding - 10 years). In our view, it is unnecessary to determine that question. It may be assumed for present purposes that his Honour would have been entitled to find such an intent as an aggravating circumstance. It is apparent that his Honour declined to do so. 12 The prosecution contends that in failing to sentence the respondent on the basis that there was in each of the first four imposition counts an intent by deception to obtain the additional allowance, Einfeld J was in error. However, for that to be so, it would have to be concluded that it was not open to his Honour to sentence the respondent upon any other basis. 13 That contention must be rejected. There was evidence from Mr Cobb that though he knew the car to be falsely identified in the first four counts, he did not realize or advert to the consequence that he could gain payments to which, otherwise, he was not entitled. The jury did not necessarily reject that evidence when they convicted the respondent upon these counts. They had been directed, at the Crown's instigation, that they could convict the respondent without finding that he knew that he was not entitled to the extra amounts. To accept the Crown's contention, his Honour would have had to reject that evidence beyond reasonable doubt. Accepting for present purposes that it was open to his Honour to have rejected the respondent's evidence, he did not. Having regard to the manner in which the Crown conducted the prosecution, his Honour was not, in our opinion, obliged to do so. 14 In any event, even had that more culpable intent been found, it could not be said that the sentences imposed, viewed in their totality, were manifestly inadequate. 15 Whether the sentence of two years' imprisonment should have been wholly suspended is a matter on which judicial minds might differ. However, given the mitigating factors which were correctly identified by the sentencing judge it cannot be said that the sentences imposed were outside the range of what might be permissible, or that his Honour's discretion in any way miscarried. 16 It is not as if his Honour overlooked any relevant matter concerning the seriousness of the offences. In charging the jury he said: "…you must also consider the personal responsibilities of elected members of parliament amounting to a sacred trust not to claim or take public money which they know is not lawful and not accurate and especially not to make claims which are admittedly false as a consequence of which public money was paid and used." 17 In his sentencing remarks he said: "Undoubtedly, Mr Cobb breached the trust reposed in elected Members of Parliament. Undoubtedly, any such breach is serious…" His Honour later said: "The matters raised in this trial are of great importance to the Australian people. Whatever they think of the political games played by professional politicians, they must believe in their personal integrity and financial probity. Anything less invalidates the very basis of our liberal democracy, breeds the idea that cheating is quite acceptable, especially of public money, and encourages a belief that all Australians are not equal before the law. As a consequence, sustained and serious departures from high standards by public officials requires significant punishment and the imposition of penalties to deter further offences, in this case, not only by Mr Cobb who has left public life, but by others tempted to offend. Some judges have persuasively argued that it will be rare in such circumstances that a gaol term is not ordered. There is much to be said for that view. I must also take into account what Mr Cobb has already suffered for his crimes.… Even if he is not imprisoned, he will have been very severely punished. The question whether the need to enforce the highest criteria of integrity for elected parliamentarians will be met by anything less than imprisonment, is more difficult. Having considered all these matters, in addition to the jury's conclusions, my own impressions of Mr Cobb, the evidence of his good character from people in good standing in the community, and counsel's submissions, I have determined that imprisonment is not called for in this case." 18 As noted earlier, it was the Crown's contention that a short period of actual imprisonment should have been part of the sentence. 19 In the context of a Crown appeal it would not ordinarily be appropriate to substitute for a wholly suspended term of imprisonment the requirement that the respondent serve a short part thereof as actual imprisonment. To impose such a sentence, rather than a wholly suspended sentence, might be thought to be tinkering. An appellate Court's intervention on a Crown appeal requires more than mere inadequacy. The principle of restraint in Crown appeals based upon the doctrine of double jeopardy would demand that, even if the Court considered the sentence to be inadequate, it should refrain from adjusting it in the manner contended for by the Crown in this case. 20 The Court is not satisfied that the sentences imposed were in all the circumstances outside the appropriate range available to the sentencing judge. No error has been demonstrated in the exercise by Einfeld J of his discretion wholly to suspend the term of two years' imprisonment. 21 The appeal will be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 26 February 1999 Counsel for the Appellant: Mr R Hanson QC with Mr G Bellew Solicitor for the Applicant: The Commonwealth Director of Public Prosecutions Counsel for the Respondent: Mr I Temby QC Solicitor for the Respondent: Messrs Phelps Reid Date of Hearing: 23 February 1999 Date of Judgment: 26 February 1999