IN THE COUNTY COURT OF VICTORIA
(Un) Revised
(Not) Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL JURISDICTION
AP 14-0597
DIRECTOR OF PUBLIC PROSECUTIONS
v
CRAIG THOMSON
---
JUDGE:
WHERE HELD:
HER HONOUR JUDGE DOUGLAS
Melbourne
DATE OF HEARING:
DATE OF SENTENCE:
17 December 2014
CASE MAY BE CITED AS:
DPP v Thomson
MEDIUM NEUTRAL CITATION: [2014] VCC
REASONS FOR SENTENCE
--Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
--APPEARANCES:
Counsel
For the Crown
Ms L. Taylor QC with
Ms D. Mandie
For the Accused
Mr G. James with
Mr E. Lewis and
Mr E. James
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134
Solicitors
HER HONOUR:
1
This is an appeal against conviction and sentence from the Melbourne
Magistrates' Court on 25 March of this year in relation to 65 charges which
comprised 16 charges of theft and 49 charges of obtain a financial advantage
by deception. This is a re-hearing.
2
Mr Thomson pleaded not guilty through his counsel to each of the charges and
as I have stated, no evidence was called. The case was put before the court
by use of a document, "Statement of undisputed facts", which was tendered.
There were issues as to the legal principles to be applied, to the facts and as to
the application of the law as I found it to be to those facts.
3
On Monday 15 December 2014, as it was a re-hearing from the Magistrates'
Court, I was the tribunal of law and the tribunal of facts. On that day I made
orders and provided reasons. The decision of this court was delivered on 15
December as follows:
4
Convicted of 13 of the 16 charges, that is 9, 22, 32, 47, 58, 151, 160, 163, 169,
173, 219, 220 and 223. I was not satisfied beyond reasonable doubt of the two
charges of theft, so I found him not guilty of Charge 27 and Charge 222. T
5
The prosecution withdrew one charge, 221, after I ruled as a matter of law. As
to the 49 charges of obtain property by deception, as the onus is on the
prosecution to prove its case beyond reasonable doubt.
As I stated last
Monday, it was regrettable that the prosecution decision was to charge the
appellant with obtain a financial advantage by deception in error as it was
alleged the financial advantage was evasion of the debt to the credit card
provider and, as a matter of law, for reasons I provided, my decision was in the
circumstances I had no option but to find the appellant not guilty of the 49
charges which were Charges 2, 5, 16, 18, 20, 41, 56, 75, 76, 86, 95, 114, 119,
124, 130, 132, 174, 177, 178, 179, 181, 182 to 6, 195 and 197 to 218.
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SENTENCE
DPP v Thomson
6
It is important that today I reiterate my statement that my decision on that day,
to acquit the appellant of those 49 charges, must not be taken as an
endorsement by this court in relation to his conduct of using HSU funds for his
own purposes. It does not.
7
Today, 17 December 2014, a plea hearing was conducted. Ms Taylor QC, with
Ms Mandie, appeared to prosecute and on behalf of the appellant Mr James
QC, with Mr Lewis, and Mr James, appeared. Mr James made submissions
and relied on a document headed, "Police submissions," which was tendered.
8
I must now sentence Mr Thomson solely on the 13 charges of theft, of which I
convicted him. I must not, and do not, take in to account, nor do I sentence him
in relation to the conduct in which he was engaged in relation to the 49 charges
of obtain a financial advantage by deception, upon which I acquitted him, and
they were the bulk of the allegations. That is the system in our criminal justice
system and I must and do abide by it.
9
The maximum sentence for the offence of theft is ten years' imprisonment.
10
As to the offending, the charges for which I will sentence Mr Thomson were
committed over the period 2003 to 2007: 2003 Charge 9; 2005, Charges 22,
173, 223; 2006, Charges 32, 151, 160, 163; 2007, Charges 47, 58, 169, 219
and 220. I have left out one. In any event, I will move on, but I think I probably
left out one. Hopefully the gist of the offending throughout those years is clear.
11
The convictions are in relation to the use, by Mr Thomson, of cash he withdrew
from
automatic
teller
machines,
using
the
Health
Services
Union
Commonwealth Bank of Australia MasterCard for personal expenses, thereby
assuming the rights of the owner of the cash, his employer, the Health Services
Union, or the HSU. The offending involved a significant breach of trust, in
particular, given his position as the national secretary of the HSU. He continued
to abuse the trust placed in him in that very senior position.
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DPP v Thomson
12
On Monday I ruled that he acted dishonestly, which was one of the issues in
the case. My decision was that he knew, during the period of the offending,
that he had no legal right to use the cash as he did. The evidence was
overwhelming as to his dishonesty. The rules were clear, that the HSU funds
were to be only used for HSU business. At the relevant time he had a law
degree and had worked with the HSU for a substantial period. From around
1988 he was employed by the HSU as an industrial officer with the New South
Wales branch. Then in August 1999, he was elected assistant secretary of the
New South Wales branch.
13
On 16 August 2002 he was elected to the position of the national secretary of
the HSU. Around 14 December 2007, he resigned, having been elected as a
member of the federal Parliament in the seat of Dobell. That occurred on 24
November 2007.
14
As to his role during the period of the charges, as the national secretary, the
members of that union, the Health Services Union, pay receive and they are
received from state branches as capitation fees, along with other union funds.
Together they are deposited in the HSU credit union account, to be applied for
the payment of HSU business. It was Mr Thomson's role to keep the accounts
and records of both incoming capitation fees and expenditure of the HSU at a
national level.
Consequently, as the national secretary he was ultimately
responsible for keeping and lodging the proper financial records of the HSU.
15
As the national secretary he had, not only a Diners Club credit card, but also a
Commonwealth Bank of Australia MasterCard. Many other members of the
HSU had each of those credit cards, but Mr Thomson was the only person in
the HSU with a PIN number, a personal identification number, which allowed
him to withdraw cash, as a cash advance, by use of that CBA MasterCard. One
each of the occasions in the 13 charges of theft, he withdrew cash by use of
that MasterCard.
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DPP v Thomson
16
There is an issue as to the total amount stolen. The prosecution say $6650 and
the defence say $4500. The prosecution case is I ought infer the total amount
withdrawn on each occasion was used for an unauthorised purpose, as there
was no other explanation given and all the foreseeable expenses he would incur
were paid for by the HSU. Ms Taylor referred to the statement of undisputed
facts in relation to other occasions he used particular sexual services and the
submission is that I can infer from that, that what is said to be the usual price,
or going rate, or sexual services on the occasions where there was no evidence
specifically of what he paid.
17
Mr James submitted that I can only sentence on the known amount of cash he
used and in the absence of evidence cannot assume the entire withdrawn was
used as alleged.
18
My decision last Monday when I convicted the appellant was on the basis of the
material in the statement of undisputed facts solely in relation to each charge.
I have set out the amount that I was satisfied of, noting it is a particular only.
Today I am asked to draw inferences from the other services provided on earlier
occasions. As I have already decided the amount stolen, I consider in the
circumstances of this case it would be inappropriate to revise the quantum,
taking into account that the amount of difference is $2,000 which would make
no difference whatsoever to any disposition I impose.
19
The gravity of the offending is the gross breach of trust involved.
The
seriousness is reflected in the continued confidence, or arrogance, of Mr
Thomson in having no regard for the responsibility imposed in him and the trust
reposed in him by his employer as he abused that position by deliberately using
the funds for his own purposes, which I describe from the material as "selfindulgent behaviour". That includes charge 173, a lunch with his wife. The
amount spent on that lunch was $400 including a bottle of wine for $200. Other
offences involve paying for sexual services.
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DPP v Thomson
20
The gravity of the offending is the use of his employer's money, entrusted into
his care as a senior person really equivalent to the CEO for expenses that he
should have and could have paid for himself. I disagree with the analysis of the
reason for Mr Thomson's offending as described as the "frailties of a man away
from home" or family pressures - to financially support his family. It is not the
concern of either a judge of this court or the criminal justice system that he
engages sex workers, but it is the concern and it is my business as the judge in
this case that he used his employer's funds to do so. Being away from home is
not to the point, it is why he used his employer's cash and not his own.
21
The moral culpability in the circumstances is high.
Relevant sentencing
considerations include a combination of just punishment, general deterrence,
specific deterrence, denunciation by the court of what he did as well as matters
put on his behalf including rehabilitation.
22
As this offending involves a breach of trust, as I have stated, general deterrence
- that is deterring others requires substantial weight.
Specific deterrence
requires substantial weight as the offending was carried out over a period of
time on a number of occasions, successfully at the time, given his authority as
the equivalent of a CEO.
23
General deterrence is particularly important as this type of offending is difficult
to detect and involves a considerable amount of time and resources by
investigators, in this case the Victoria Police. The investigation in my view was
comprehensive, and the investigators carried it out in an impressive manner
with an eye to detail, which is warranted in a case such as this. I do not accept
the description of delay in the sense of undue delay
24
The complication of this case required numerous enquiries and documents. As
Mr Thomson pleaded not guilty, there is no evidence of remorse, and thus no
evidence that he has shown insight. It was not just the plea of not guilty, it was
the way he has conducted himself that I consider there is no evidence of insight
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DPP v Thomson
as to his offending.
25
I sentence Mr Thomson as a person without a prior criminal history of any
kindas a man who has reached the age of 49 years. However, as has been
stated, in offences involving conduct where there is a breach of trust, in
particularly by a person in a senior position who is seen as an honest and
reliable person to be in that position, that situation of no prior criminal history is
of less importance than other offending as had he had prior convictions he
would not have been in the position to carry out this offending.
26
As to the delay, which I consider is an inappropriate word, and I will call it the
period which elapsed between the commission of the offences and the filing of
the charges, which I accept was due to the complexity of the investigation, I
accept that it has been hanging over the appellant's head for some time and
that it has been stressful for him and his family and I take that into account as I
must.
27
Mr Thomson's personal circumstances are set out in the psychological report
of Stephen Woods and Associates, dated 16 March 2014 and I take into
account the contents of that report as well as an updated report dated 12
December 2014. As I stated, I take into account the contents of those reports
as well as the references that were tendered. I accept that Mr Thomson
continues to have the support of his friends and family. However, upon reading
the contents of those reports, I consider those people although well-meaning
have a misconceived view of his honesty.
28
His personal circumstances are that he has since remarried and has two
children of that marriage.
29
I accept Mr James', I will not say submissions, but his instructions that Mr
Thomson and his family have spent over $400,000 in legal fees from the time
he was charged with 225 charges until today. Of course, as he is entitled to,
he maintained his plea of not guilty throughout that period.
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DPP v Thomson
30
He is currently working from time to time on a non-permanent basis as a
consultant and his wife works part-time. I have been informed he has no assets
and his instructions are that it is likely he will have difficulty finding employment
because of his tarnished reputation. As the sentencing judge, I must impose a
just sentence, taking into account the seriousness of each of the offences, the
gravity of the offending conduct, applying relevant sentencing principles and
current sentencing practices in relation to the offences as referred to by each
member of counsel. I have also taken into account the personal circumstances
and matters in mitigation.
31
On behalf of the prosecution, it is submitted that, applying the relevant legal
principles, only a prison sentence ordered to be served immediately is the
appropriate disposition and if I do otherwise, I would run the risk of running into
appellable error, given the egregious breach of trust and the fact that the
appellant's position was the CEO with the authority given to him and the trust
given to him in that position.
32
A decision of the Victorian Court of Appeal was relied on, DPP v Peter Couper,
dated 10 April 2013.
That case was an appeal by the Director of Public
Prosecutions on the basis that the judge erred in imposing a sentence that was
manifestly inadequate and made errors. The appeal was on the basis that the
imposition of the Commonwealth jurisdiction's equivalent of a suspended
sentence was inadequate.
33
In that case, the accused did not personally receive any money as a result of
his offending. He committed the offences in his role as the Chief Financial
Officer of a publicly listed company and recorded false transactions deliberately
and it also involved the unwitting staff to participate in the fraud. This was
considered by the Court of Appeal very serious as it was, in the circumstances,
capable of undermining confidence in the integrity of financial markets. I want
to read part of that case.
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34
The Court of Appeal was Appea Harper and Tate JJA and Williams AJA. Tate
JA's judgment is the one I will refer to and the other judges agreed. She said
this:
35
"The offending took place in the context of the global financial crisis that had an
adverse effect on On Q, which is the company. In particular, BXP, because
BXP had borrowed heavily to finance a large extension in its activities in the
early 2000s. Indeed, it was said at that time the offences were committed On
Q was haemorrhaging money."
36
BXP I should have said for the purpose of the transcript is Bill Express Limited,
and On Q, is On Q Group Limited. That was paragraph 9. I will now refer to
paragraph 91. The court said this:
37
"The sentencing judge considered that the offences against s. 64 of the ASIC
Act also demonstrated that the respondent, while otherwise a man of
impeccable morals, was capable of extremely serious and dishonest behaviour,
which represented a betrayal not only of his personal values, but the
professional standards designed to protect members of the public who invest in
companies such as BXP. Indeed, she considered that the respondent standing
as a person of honesty and good character also revealed that he must have
known that all of the conduct that constituted his offending was entirely wrong."
38
At 105 I am referring to, because I, upon an analysis of this case, it is a different
situation to this case and what I am about to read, I am reading to illustrate the
difference, and this is what the court said:
39
"It is tempting to consider financial crimes as wholly distinct from crimes
involving physical violence of destruction of property. But crimes which impair
the fair, orderly and transparent conduct of financial markets carry with them a
measure of criminal culpability comparable to other more traditional offences.
This is particularly so when the financial crime involves deceit and a fraud
perpetuated not only on an unidentified class of individuals who purchased and
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SENTENCE
DPP v Thomson
sold BXP shares during the relevant times, but a fraud perpetuated on the
general public who are entitled to rely upon the integrity of the market and the
appropriate enforceability of the offences which the Commonwealth Parliament
has created in them."
40
Reference was made to a decision of T Forrest J. in a matter of R v Chan,
(2010) 79 ACSR 189, where His Honour referred to the situation that if financial
markets lack integrity, public confidence in them is necessarily eroded. The
court, in this case, referred at p.108 to the offending having the potential to
impair the efficacy and integrity of the market in public securities. The effect of
the offending in Couper's case, where millions of dollars were the subject of the
false accounting, was more widespread, adversely affecting the community,
and in particular referring to public confidence in the integrity of financial
markets.
41
In this case it is very serious offending. However I sentence Mr Thomson on
the effect of these thefts on the HSU, his employer. Although it is appalling, in
particular the breach of trust of the CEO, the consequences were not as
widespread.
42
The disposition I impose must send a message to other people who are either
tempted to, or do, think of abusing the trust placed in them by their employers,
especially when in very senior positions, and are tempted to behave arrogantly
as though they are beyond reproach; and also to people who behaved, as Mr
Thomson did, with little insight as to the seriousness of the offences.
43
Denunciation and just punishment are also relevant, and as I said, also at the
same time must take in to account matters put on behalf of the accused, in
particular rehabilitation, and I accept his chances of rehabilitation are
reasonably good.
44
I take in to account in his favour that, given his position, there has been an
enormous amount of publicity which has permanently damaged his reputation.
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DPP v Thomson
I might say this, given his position that allowed him to carry out these offences,
it does not surprise me that he received the publicity, it was well deserved. I
am not critical of the press at all, as the public must be informed. Nevertheless
I accept that his reputation has been tarnished permanently and I also accept
that that is a form of punishment, to some extent.
45
I also take in to account the matter raised on behalf that he has been adversely
affected, as he was concerned about the effect of the lowering of his reputation
in the eyes of the public, and the publicity, on his family. There is also the
financial difficulties his family have encountered.
46
I take in to account in his favour the compensation order made in the sum of
$5650.
47
This case, as I said to counsel, has been a very difficult decision for a trial judge,
as although Mr Thomson's conduct has amounted to a serious breach of trust,
by a man in a very senior position who has shown a flagrant disregard for his
employer, using all the funds that are the subject of these charges for his own
self-indulgent purposes over the period, the amount, upon a consideration of
the law, is not such that as a matter of law a term of imprisonment is within the
sentencing range.
48
A term of imprisonment ordered to be wholly suspended must not be imposed
unless the tribunal of law, myself, a judge, is satisfied, using the relevant legal
principles, that a term of imprisonment is appropriate. I have come to the view
that it is not appropriate. I must apply the relevant law and I accept the
submission of Mr James that taking in to account all the evidence relied on, and
the inferences relied on, as the amount stolen was at the highest, which is the
Crown position, six and a half thousand dollars, a term of imprisonment to be
served immediately or suspended is not in the range of dispositions.
49 In the circumstances, I consider that a disposition that would reflect the
concern I have for the moral culpability, which is high, to deter others, to deter
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DPP v Thomson
him, to denounce his behaviour and conduct, in particular the breach of trust, is
a monetary penalty. The law provides, for the imposition of a monetary penalty,
and I will refer to s.49 of the Sentencing Act, and pursuant to s.51, "If a person
is found guilty of two or more offences, which are founded on the same facts,
or form, or a part of a series of offences of the same or similar character, the
court may impose one fine in respect of the offences."
50
As I am hearing offences that are indictable, but heard summarily, I am sitting
in the role of a magistrate, as far as my powers to sentence, and I therefore
have the power, pursuant to s.51, to impose an aggregate sentence. Now, in
determining the amount, I must take in to account the seriousness of the
offending, as well as the financial circumstances of the offender, his capacity to
pay, and the proportionality of the offending to the amount. Now, from what I
have been told, currently he has no assets, his work prospects do not look
particularly good at this time.
51
However, he is being assisted by his family who I have been informed he will
repay as soon as he can. Mr Thomson is an educated man who has held
responsible positions and I consider that I ought not give a fine of a lesser
amount of his financial circumstances today, as I consider on the material that
he is likely to be able to obtain a loan or pay his family back or however he
wants to do it, to be able to pay his fine. So what my orders will be, I will take
into account all the matters, I will convict him of each of the 13 charges and I
will impose an aggregate fine of $25,000.
52
MR JAMES: As Your Honour pleases.
53
HER HONOUR: How long do you need? If I can put it that way? I think I can
only give you three months and then he has to continually - I'm not sure - - -
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54
MR JAMES: We'd ask for that three months.
55
HER HONOUR: Yes.
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DPP v Thomson
56
MR JAMES: It may be that other matters of a financial priority will lose their
priority and have to be deferred and that is something with which those involved
will have to - - -
57
HER HONOUR: I think as a creditor, the fact that if he does not pay, he could
end up in prison. It means that it goes up the list of priorities, Mr James.
58
MR JAMES: And particularly, he's got to know - - -
59
HER HONOUR: And - - -
60
MR JAMES: - - - that unless it is paid within the time allowed or an extension
allowed by the court, the sanction is gaol.
61
HER HONOUR: Exactly.
62
MR JAMES: Thank you, Your Honour.
63
HER HONOUR: Very well. Are there any other matters? Ms Taylor, Mr
James? No. I am only asking just in case. Very well, thank you for your
assistance. We will now adjourn.
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