New South Wales Court of Criminal Appeal CITATION : Regina v Clark [2001] NSWCCA 69 FILE NUMBER(S) : CCA 60492/00 HEARING DATE(S) : 6 March 2001 JUDGMENT DATE : 6 March 2001 PARTIES : Regina v Peter James Clark JUDGMENT OF : Meagher JA at 1, 24, 26; Hulme J at 25; Smart AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/3017 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : (A) J Crespo (R) C P O'Donnell SOLICITORS : (A) G H Healey & Co - Bondi (R) Commonwalth DPP CATCHWORDS : Sentencing - Extended course of dishonesty - Whether subsequent offences correctly taken into account LEGISLATION CITED : Crimes Act 1914 (Cth) CASES CITED: The Queen v De Simoni (1981) 147 CLR 383 at 389 DECISION : Leave to appeal against sentence refused IN THE COURT OF CRIMINAL APPEAL 60492/00 MEAGHER JA HULME J SMART AJ Tuesday 6 March 2001 REGINA v PETER JAMES CLARK JUDGMENT 1 MEAGHER JA: I will ask Smart AJ to give the first judgment. 2 SMART AJ : Peter James Clark appeals against the severity of a sentence of imprisonment for two offences of stealing property belonging to the Australia Postal Corporation contrary to section 71 of the Crimes Act 1914 (Commonwealth) . 3 The first offence occurred between 14 March 1997 and 19 June 1997 when the appellant stole $3312.70 from the Woollahra Post Office. The second offence occurred between 29 July 1997 and 8 April 1998, when the appellant stole $47,910 from the Coogee Post Office. The appellant was convicted by a jury after a five day trial. 4 As to the first offence, the appellant was sentenced to a fixed term of imprisonment of eight months. For the second offence the appellant was sentenced to two years' imprisonment and ordered to be released after serving eight months upon entering into a recognisance to be of good behaviour. The sentences were to be served concurrently. 5 The applicant was the Acting Postal Manager at Woollahra Post Office and the Postal Manager at Coogee Post Office. The two offences involved repeated acts of dishonesty by the applicant who, over an extended period, created a number of false computer records each time he took funds from Australia Post. The computer records were designed to give the impression that the payments were legitimate refunds or compensation payments made to customers. Evidence given at the trial established that the applicant created the false records in an attempt to cover up the offences. 6 Two fellow employees gave evidence that the applicant had suggested that they tell investigators that they had thrown some records out during a clean-out. One of the employees stated that the applicant later told him that he might have to go to Court and give false testimony about the missing records. Neither of the employees was cross-examined about this evidence. 7 The Crown relied on the evidence as admissions implicating the applicant in the commission of the offences and establishing his consciousness of guilt. 8 In his remarks on sentence the judge stated: "The problem is that not only did he steal the money but that when the matter was being investigated he approached members of the staff to try and cover for him." 9 Counsel for the applicant also relied on the discussion that took place between counsel and the judge during the course of argument and the judge's comment at page 5 of the transcript: "He tried to get other people involved in protecting him and lying for him and he pleaded not guilty, as he is entitled to do. There is no problem about that, but having pleaded not guilty and maintaining that plea as he does he loses the mitigation he would have received had he pleaded guilty. In cases like that there is substantial mitigation." 10 The judge had earlier commented that the applicant had shown absolutely no remorse concerning these matters. 11 Counsel submitted that when the judge's observations in the course of argument were coupled with what he said in his judgment, it was plain that the judge was using the material in relation to the two employees by way of aggravation of the applicant's criminality. Reference was also made to a passage at page 6 of the transcript, where the judge reminded counsel that his submission as to non cross-examination of the employee did not get away from the conduct in relation to the employees. I am wary about placing reliance on comments made in argument. I prefer to rely on the reasons given by the judge in his remarks on sentence. 12 The judge also stated that the evidence indicated that the applicant was a person who suffers from an anxiety state associated with panic attacks and has for a number of years. The judge further stated: "It may well be that to some extent once his fate has been determined there will be some improvement in his anxiety state, but if there is not it is capable of being ... properly treated by the authorities, but I do take it into consideration as a factor which lessens to some extent the amount of general deterrence that is available." 13 The judge took into account the applicant's age (he was born on 3 August 1948) and his unfortunate upbringing. He was institutionalised between the ages of eight and fourteen and then had to fend for himself. He had no prior convictions. The judge noted that the applicant committed the offences while in a position of trust. 14 The judge held that, notwithstanding the applicant's health problems and after taking into account the relevant matters under section 16A of the Crimes Act 1914 (Commonwealth) , the authorities required him to impose a full-time custodial sentence. He was correct to so hold. That is the position, even if the factors regarded by the judge as aggravating were not present. 15 The essence of the offences was that a substantial sum, over $50,000, had been stolen over an extended period by a person who was in a position of trust and authority and he had falsified computer records in an attempt to cover his tracks. The judge applied section 16G of the Act and also took into account that the applicant had repaid $10,000 and that to some extent, because of health problems, he would serve the time "hard". 16 The applicant contended the judge should not have had regard to the applicant's conduct after the commission of the stealing offences as that conduct did not involve offences of a similar nature. 17 It was submitted that the judge had incorrectly treated the conduct of the applicant with the two employees as an aggravating factor. There were apparent further alleged offences in respect of which the applicant had not been convicted. Reliance was placed upon The Queen v De Simoni (1981) 147 CLR 383 t 389 per Gibbs CJ. 18 Conduct which is relevant on the question of guilt is not necessarily relevant on the question of penalty. I think the judge probably took into account the applicant's attempt to, in effect, pervert the course of justice. That was not a crime with which the applicant was charged. 19 The applicant contended the judge was not entitled to express the views earlier quoted as to the applicant's medical prognosis. 20 The Court was referred to passages in Dr D M Grace's reports. Before us the applicant stressed that he was not able to receive the appropriate treatment in gaol, in that he was not allowed to have Murelax with him and take it as he felt he needed it. It had to be taken on prescription and at the hands of a nurse. The proper medical care of the applicant is a question primarily for the prison authorities and while there may be some difficulty with the taking of Murelax in prison, this does not of itself warrant the setting aside of the judge's sentence. 21 The applicant further contended that the judge had incorrectly assessed the assistance which the applicant's girlfriend could give him. Counsel pointed to the terms of the report of Dr D M Grace indicating she had had, and still has, serious health problems. The judge probably had in mind the encouragement she could give and support in the form of listening and counselling. Of course, poor health on her part could restrict even this kind of support. 22 The applicant submitted the sentence was excessive in all the circumstances and that the judge placed too much weight on public and personal deterrence. I regard the sentence imposed by the judge as a lenient one, even if the assumption is made that the complaints as to the applicant's conduct after the offences, his medical condition and his wife's assistance, are made good. I have earlier set out the essence of the offences. Not only was the head sentence lenient having regard to the objective criminality and the applicant's subjective factors, but the non-parole period was exceedingly lenient. 23 A non-parole period of eight months demonstrates that the judge made full allowance for the applicant's subjective features and his medical condition. It was not reasonably open to the judge to have imposed a lesser sentence. 24 In my opinion, the application for leave to appeal should be refused. 25 MEAGHER JA : I agree. 26 HULME J : I also agree. 27 MEAGHER JA : The orders of the Court therefore are the orders proposed by Smart AJ. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.