Clarkson v Ingram [2021] QDC 153

DISTRICT COURT OF QUEENSLAND CITATION: Clarkson v Ingram [2021] QDC 153 PARTIES: MATTHEW DANIEL CLARKSON (Appellant) v REBEKAH INGRAM (Respondent) FILE NO: D386 of 20 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Southport DELIVERED ON: 2 August 2021 DELIVERED AT: Southport HEARING DATE: 22 July 2021 JUDGE: Kent QC DCJ ORDER: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – WHETHER ERRORS ESTABLISHED – where the appellant appeals the sentence pursuant to section 222 of the Justices Act 1886 – where the appellant pleaded guilty to making a false or misleading statement in a document – where a conviction was recorded – whether the sentence was manifestly excessive – where the appellant seeks leave to adduce new evidence – where the evidence was available prior to sentence – where the appellant submits that the offence was of a trivial nature – where the appellant submits that reparation was not considered – where the appellant did not advance an argument as to reparation at sentence – where the appellant submits that there was not a fair hearing LEGISLATION: Corporations Act 2001 (Cth) ss 1308, 206B Crimes Act 1914 (Cth) ss 16A, 19B Justices Act 1886 (Qld) s 222 Limitation of Actions Act 1958 (Vic) Limitation of Actions Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld) CASES: Andelman v The Queen [2013] VSCA 25, cited Cobiac v Liddy (1969) 119 CLR 257, discussed -- 1 of 21 -- 2 Commissioner of Taxation v Baffsky [2001] NSWCCA 332, cited Gallagher v The Queen (1986) 160 CLR 392, cited Isherwood v Tasmania [2010] TASCCA 11, cited Kearnsley v R [2017] NSWCCA 28, cited Kentwell v R (2014) 313 ALR 451, cited Logan City Council v Brooks [2020] QDC 24, cited Lowndes v The Queen (1999) 195 CLR 665, cited MacPherson v R (1981) 147 CLR 512, cited Mancini v Vallerlonga (1981) 28 SASR 236, cited O’Connell v Western Australia [2012] WASCA 96, cited Pavlovic v Commissioner of Police [2006] QCA 134, cited R v Abdi [1994] QCA 402, cited R v Pham (2015) 325 ALR 400, cited R v Tomaiuolo [2007] SASC 34, cited R v Wall [2002] NSWCCA 42, discussed Riddle v Riddle (1952) 85 CLR 202, cited Spies v The Queen [2000] HCA 43, cited Tomasevic v Travaglini [2007] VSC 337, cited Walden v Hensler (1987) 163 CLR 561, cited Wood v Marsh (2003) 139 A Crim R 475, cited COUNSEL: S Blaxland for the Appellant M Potts for the Respondent SOLICITORS: Arcuri Lawyers for the Appellant Director of Public Prosecutions for the Respondent Introduction [1] The appellant pleaded guilty in the Magistrates Court at Southport on 16 November 2020 to one charge of making a false or misleading statement in a material particular contrary to s 1308(2) of the Corporations Act 2001 (Cth) (the respondent to this appeal, the original complainant, is a representative of ASIC). He represented himself at sentence. The maximum penalty in the summary jurisdiction was 12 months imprisonment and/or a pecuniary penalty in the sum of $12,600.1 [2] The offending came about because of the appellant’s involvement in a company, Bidding Buzz Pty Ltd, of which he was the sole director. On 25 July 2019, the appellant electronically signed a Form 6010 Application for Voluntary Deregistration of a Company, in relation to Bidding Buzz, which was false in that it declared that the company had no outstanding liabilities whereas in truth the appellant was aware of a judgment against the company in favour of a Ms Hearn in the sum of $19,900 1 Crimes Act 1914 (Cth) s 4J (3). -- 2 of 21 -- 3 together with an application fee of $159, the total then being $20,059. This was as a result of orders of the Victorian Civil and Administrative Tribunal (“VCAT”) of 20 December 2018. [3] The signed form was lodged with ASIC on 25 July 2019 by the appellant’s tax agent and caused Bidding Buzz to be deregistered. [4] After reasonably extensive submissions, the Magistrate imposed a $2,000 fine with a conviction recorded and the appellant was ordered to pay court costs. Nature of appeal [5] The appellant appeals against the severity of the sentence, and in particular he is concerned about the recording of a conviction. The grounds of appeal are, generally, that the sentence was manifestly excessive, particularly as it relates to the recording of a conviction. A further ground of appeal was added by leave to the effect that the appellant was denied a fair hearing in that he was not made fully cognisant of his rights to the full range of sentencing options available pursuant to s 19B(1)(d) of the Crimes Act 1914 (Cth). [6] Section 222(2)(c) of the Justices Act 1886 (Qld) (“the Justices Act”) provides for an appeal against sentence where an appellant has pleaded guilty. In order to succeed, the appellant must establish some legal, factual or discretionary error.2 It is not a question of whether I would have imposed a different sentence as a matter of sentencing discretion, rather, error must be demonstrated; the sentencing discretion allowed to sentencing judges and magistrates is of vital importance to the system.3 As the ground of appeal sets out, absent other identifiable error, the appellant must demonstrate manifest excess, that is, that the sentence was outside the permissible range of sentences for the offender and the offence.4 Sentencing is a discretionary judgement that does not yield a single correct result.5 [7] A number of issues arise in the appeal which will be considered sequentially. 2 McDonald v The Queensland Police Service [2017] QCA 255 at [47]. 3 Lowndes v The Queen (1999) 195 CLR 665 at 671. 4 See R v Pham (2015) 325 ALR 400 at [28]; Kentwell v R (2014) 313 ALR 451 at [35], [42]. 5 Kentwell v R, supra, at [42]. -- 3 of 21 -- 4 First issue: Application for leave to adduce further evidence [8] The appellant also seeks leave to adduce fresh or additional evidence under s 223 of the Justices Act, namely an affidavit of Matthew Daniel Clarkson (the appellant) sworn 14 December 2020. Submissions were heard as to this aspect during the argument of the appeal, and I indicated that I would reserve my decision on the point. [9] Fresh, additional or substituted evidence may be adduced if the court is satisfied there are special grounds for granting leave. If the court grants leave, the appeal is by way of re-hearing on the original evidence and on the new evidence adduced.6 [10] The three main considerations relevant to the issue are set out in Gallagher v The Queen7 as whether “the evidence relied on could with reasonable diligence have been produced by the accused at the trial”; whether “the evidence is apparently credible (or at least capable of belief)”; and whether “the evidence, if believed, might reasonably have led a tribunal of fact to return a different verdict”.8 [11] These propositions were cited with approval in Pavlovic v Commissioner of Police.9 [12] No doubt the evidence, which seeks to tease out further details as to the impact of a recording of a conviction on the appellant (relating to his business activities)10, may be considered to be credible or capable of belief. However, it is not clear that the evidence relied on could not, with reasonable diligence, have been produced by the appellant at the sentence. Indeed, he made submissions along similar lines to the content of the affidavit material, although not in the same depth. Further, for the reasons which follow, particularly the Magistrate’s acceptance of the proposition that the recording of a conviction would cause significant difficulties for the appellant in management of companies, and a company in particular concerning a child care centre, it is not clear to me that there is any basis to say that the content of the affidavit might reasonably have led to a different result; the matter proceeded on the same or similar basis as if the now proposed evidence had been given. Thus, the respondent submits, and I accept, that the first and third considerations in Gallagher are not 6 Logan City Council v Brooks [2020] QDC 24 at [3]. 7 (1986) 160 CLR 392. 8 See p 395-396. 9 [2006] QCA 134 at [31]-[36]. 10 There were some other passages in the affidavit as to the offence which might be regarded as traversing the plea of guilty, this was not persisted with at the hearing of the appeal, as set out below. -- 4 of 21 -- 5 satisfied and thus, in my conclusion, the application for leave to adduce fresh or further evidence should be dismissed. Statutory Framework [13] Section 1308 of the Corporations Act 2001 (Cth) as at July 2019 provided relevantly: 1308 False or misleading statements (2) A person who, in a document required by or for the purposes of this Act or lodged with or submitted to ASIC, makes or authorises the making of a statement that to the person’s knowledge is false or misleading in a material particular, or omits or authorises the omission of any matter or thing without which the document is to the person’s knowledge misleading in a material respect, is guilty of an offence. Section 206B provided relevantly: 206B Automatic disqualification—convictions, bankruptcy and foreign court orders etc. Convictions (1) A person becomes disqualified from managing corporations if the person: (b) is convicted of an offence that: (ii) involves dishonesty and is punishable by imprisonment for at least 3 months; (2) The period of disqualification under subsection (1) starts on the day the person is convicted and lasts for: (a) if the person does not serve a term of imprisonment—5 years after the day on which they are convicted; The Crimes Act 1914 (Cth) provided relevantly 19B Discharge of offenders without proceeding to conviction (1) Where: -- 5 of 21 -- 6 (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: (c) dismiss the charge or charges in respect of which the court is so satisfied; or (d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or -- 6 of 21 -- 7 (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs— by specified instalments as provided in the order; and (iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed. Section 16A provided relevantly: 16A Matters to which court to have regard when passing sentence etc.— federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Note: Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence: -- 7 of 21 -- 8 (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (ma) if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. -- 8 of 21 -- 9 Nature of the sentence proceeding [14] As the transcript reveals, the Magistrate, in my respectful view, conducted the hearing quite carefully. The appellant’s plea is recorded at p 2 of the transcript. At p 3, the prosecutor thoroughly set out the facts and noted the effect of s 206B of the Corporations Act that the defendant will be disqualified from managing a company for a period of five years if a conviction is recorded; there is no doubt that from that point onwards, at least, all parties were aware of that consequence, and indeed significant argument was directed to it. Indeed, it is reasonably clear that the appellant was aware of it in advance and fairly well prepared for it. [15] As the prosecutor submitted, this is a circumstance which the court may take into account, however, should not be considered extra curial punishment, rather being an outcome that flows from the due administration of the judicial process as a matter of law.11 [16] At p 4, the prosecutor acknowledged the appellant’s guilty plea, identified some of the relevant authorities and statements of principle applicable to this kind of offending and the importance of general deterrence, and submitted that a fine would be the appropriate penalty. [17] The appellant accepted the accuracy of the facts. He undertook an explanation to the effect that he was acting under incorrect advice from his accountant as to the legal nature of the claim (he said he was told the claim had “expired” as it related to a transaction six years prior; if this was said it was incorrect, because the creditor had a judgement in place and thus at least a number of years left, at that stage, to enforce it).12 [18] This caused the prosecutor to raise concerns as to whether the appellant was retreating from his plea of guilty and the Magistrate mentioned at p 1-6 of the transcript at l 36 that this could lead to the plea being re-opened. The appellant seemed to again fully 11 See e.g. Kearnsley v R [2107] NSWCCA 28 at [76]–[77]. 12 15 years from the day it became enforceable under the Victorian Limitation of Actions Act 1958, s 5(4); possibly 12 years under the Limitation of Actions Act 1974 (Qld), s 5(4) and (4A); leave may be needed to start an enforcement proceeding after 6 years after the day of the order, Uniform Civil Procedure Rules 1999 (Qld) r 799. -- 9 of 21 -- 10 accept that the document was, to his knowledge, at the time, false or misleading in a material particular; he said: “I’m more than happy to stick with the original pleading, remove the comments about making an error, your Honour.”13 This seems, with respect, an appropriate response and one which may not have been improved upon by a qualified legal representative, given the circumstances. [19] Character references were tendered. There was a clear discussion as to the impact the conviction would have on the appellant’s plans to operate a childcare centre.14 He thus sought to have no conviction recorded, in the context of a discharge (indicating he was aware of this option) or a fine. He explicitly mentioned s 19B of the Crimes Act. The Magistrate then raised the (correct) proposition that there is no power to impose a fine without a conviction being recorded, and that if she were to proceed under s 19B, she must be satisfied as to the two stage test enunciated in cases such as R v Wall.15 Reference was there made to Commissioner of Taxation v Baffsky.16 [20] The section, as her Honour said, should be approached in two stages: first, the identification of one or more of the factors identified in s 19B(1)(b); secondly, the determination, having regard to the factors identified, as to whether one of the conclusions in the section (as to it being inexpedient to inflict any punishment, or any punishment other than a nominal punishment, or that is expedient to release the offender on probation) is made out. [21] Her Honour dealt with these matters after hearing submissions. The prosecutor referred to R v Abdi,17 where Macrossan CJ observed that: “I do not think that any substantial case is made out that the applicant will be significantly disadvantaged beyond the average person’s situation by the fact of the recording of a conviction.” In the absence of such a case being made out, no error was found; McPherson J. A. also referred to the need to show a particular detriment beyond that 13 T1-6 ll 40-41. 14 T1-8, ll 16-17. 15 [2002] NSWCCA 42 at [72]. 16 [2001] NSWCCA 332. 17 [1994] QCA 402 -- 10 of 21 -- 11 normally experienced by anyone in the community having a conviction against his name. Of course, in this case the detriment was identified. [22] Submissions were also made referring to passages in R v Wall that:18 “In the context of white collar crime of this sort, there is another good reason for recording a conviction, since that would have imposed a limitation upon the respondent’s ability to commit another similar offence. He would have been disqualified from managing a corporation for the period specified by s 206(B) of the Corporations Act 2001, a right which he had clearly forfeited by his breach of trust and act of dishonesty as an office holder of a public company.”19 The company under consideration in this case does not appear to have been a public company. This was not the subject of submissions, but may represent a difference from Wall; to what degree is difficult to assess, however the distinction may not be crucial or decisive. [23] The referenced passage continued: “Although s 206(B) is not intended as a means of exacting further punishment, the recording of convictions in such cases has been recognised as having a particular significance…. by reason of the restrictions to which they give rise, and also by reason of the need for general deterrence.” [24] Refence was made to Spies v The Queen20 and Justice Gaudron’s observation that: “… members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their position and breach the criminal or company law do not escape conviction.” [25] The prosecutor thus argued that the relevant test was not satisfied in the present case, and that the appellant failed each stage thereof. The appellant responded that a conviction will impact his ability to operate the childcare centre, and because of his background and character with no convictions, a fine without recording a conviction was argued for (as noted above, he had also earlier mentioned a discharge, which was legally available as a penalty if a conviction were not recorded). The Magistrate fairly pointed out that this was not possible if a fine was being imposed. Her Honour went 18 Supra. 19 At [87]. 20 [2000] HCA 43. -- 11 of 21 -- 12 on to explain that there is a two stage test and the three factors in the first stage.21 She indicated that she did not think the offence was trivial. The appellant said that there was nothing more he could add. As to his financial circumstances, the appellant informed the Magistrate that he drew $80,000 a year from his property development income. The decision [26] The Magistrate took into account the appellant’s guilty plea and said that it was indicative of remorse and gave him the full benefit of it. She had regard to all of the factors in s 16A (1) and (2). Her Honour rehearsed the facts, and referred to some of the authorities, in particular, R v Wall. She indicated that she took into account the references and that he was someone of previous good character and had donated to charity. Her Honour set out the various factors under s 19B. She observed, with reference to authority, that the fact an offender has no previous convictions is relevant but not of itself sufficient to not record a conviction. She concluded that the offence was not trivial with reference to observations from Walden v Hensler22 where Brennan J stated: “Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed.” [27] That is, one looks at the offending, rather than a generic description of the offence in the statute. Her Honour also referred to Mancini v Vallerlonga:23 “An offence is not trifling, if it is a typical offence of the class proscribed. And, where the breach is deliberate, it can rarely be characterised as trifling.” [28] Her Honour noted that there was no evidence put before the court in relation to extenuating circumstances (I do not understand the factor of extenuating circumstances to have been pressed at the hearing of this appeal). Thus her Honour concluded the first stage of the test against the appellant, however her Honour – appropriately - went on to consider the second stage and whether it would be inexpedient to inflict any punishment or any punishment other than a nominal 21 T1-13. 22 (1987) 163 CLR 561. 23 (1981) 28 SASR 236. -- 12 of 21 -- 13 punishment or expedient to release the offender on probation. Her Honour referred to Baffsky24 for the proposition that the exercise of the discretion has been referred to as “exceptional and rare and special and singular”. Her Honour considered the consequences of the conviction and the fact that adverse consequences would flow. She noted a proper foundation should be laid in relation to that. Her Honour said that recording the conviction was not intended to further punish the appellant (an apparent reference to the comments in Wall at [87]; see [23] above). Her Honour referred to the statement of principle from Spies. She concluded that the first stage was not satisfied but, in any event, it was not inexpedient to inflict any punishment or any punishment other than nominal punishment, nor was it expedient to release the appellant on probation. She concluded a fine should be imposed. [29] In my view, the above reasoning was thorough and careful. The Magistrate considered all aspects of the relevant statutory tests. Second issue: s 19B – The “antecedents” factor [30] The appellant argues that the Magistrate reached the wrong conclusion as to s 19B. As to the first stage of the process, it is said that the appellant’s character, antecedents and age are very relevant. He has no criminal history and otherwise good antecedents including his charitable work. These were matters the Magistrate referred to25; the submission is they were not given due weight. [31] Her Honour explained why the “antecedents” factor was not satisfied, in her view, with reference to authority.26 In my view, there is no error demonstrated in this reasoning. Third issue: s 19B - The triviality factor Appellant’s submissions [32] It is also submitted that the Magistrate erred in not finding that the offence was of a trivial nature. The appellant refers to Cobiac v Liddy.27 The appellant cites the 24 Supra. 25 Decision p 3 ll 20-35; p 4 ll 1-4. 26 Decision p 4 ll6-19. 27 (1969) 119 CLR 257. -- 13 of 21 -- 14 following passage from the judgment of Justice Windeyer, I think for the proposition that sometimes apparently serious offences can nevertheless be regarded as trivial: “Certainly a charge of driving when drunk could seldom be dismissed on the ground that the offence was of a ‘trivial nature’, although the Road Traffic Act s 47(4) does speak of a first offence as capable of being ‘trifling’. But, recognising the offence as serious, and that a conviction of it must bring a heavy penalty upon the offender, is not to say that such an offender can never be dealt with under the Offenders Probation Act.” [33] The case concerned a man of 72 years of age driving whilst intoxicated, who crashed into another car and left the scene of the accident. The Magistrate convicted him of the second and third charges, but, although he was found guilty of the first charge of drink driving, instead of proceeding to a conviction he was discharged, under a provision similar to s 19B. The reason was that the conviction of drink driving would have been a second offence and he would have been subject to a mandatory prison sentence of at least one month. He was the carer for his 87-year-old sister who lived with him. The majority judgment in the High Court, of Barwick CJ, Kitto J and Owen J, referred to the appellant’s age as being undoubtedly a fact that the Magistrate was entitled to consider. He was also entitled to consider the penalties he was planning to impose for the other two offences, which would in effect have prevented the appellant from ever driving again. In this context the majority (with whom Windeyer J agreed) concluded that the appellant’s age was a fact which the Magistrate was entitled to consider as were the other penalties to be imposed and that sending the appellant to jail would subject him to distress by reason of his being prevented from caring for his sister; these matters made it expedient to take the course of dismissing the complaint rather than convicting him. Thus, it was found that there was material on which the Magistrate could exercise his discretion. So, the judgment of the majority, as I understand it, did not focus on the factor of triviality, rather the appellant’s age and personal circumstances (the “antecedents” factor) seemed to be the driving factors. The quoted passage from the judgement of Windeyer J does not appear to be the ratio decidendi of the case, and in any case I am doubtful whether Cobiac v Liddy has much direct relevance to the present case which displays more differences than similarities. -- 14 of 21 -- 15 [34] The appellant further argues that when considering triviality there must be reference to the actual conduct constituting the offence committed rather than simply to the statutory provision prescribing the maximum penalty. This is correct.28 [35] Thus, in relation to the first stage of the relevant test, the appellant argues, I think, that both - the first factor of the appellant’s character, antecedents and age, and - secondly that the offence is trivial; are established, with apparent reliance on Cobiac v Liddy; - thirdly that as to triviality the Magistrate wrongly focused too much on the nature of the statutory offence rather than the actual conduct, in breach of the approach set out in Walden v Hensler, for example by focusing too much on the relevant intention. In this context it appeared to be argued at one stage – it is in the appellant’s further outline of argument - that the appellant clearly had not been deliberately dishonest. The respondent understandably raised the problem of such a submission tending to traverse the plea of guilty, and as I understand it, the appellant abandoned this position. Nevertheless, it is said that the appellant’s conduct is not at the serious end of the spectrum of such offending. Respondent’s submissions [36] On the triviality issue, particularly the third argument outlined above, the respondent firstly emphasised the elements of the offence. The first element was that he made or authorised the making of a statement in a document that was false or misleading in a material particular. The fault element is knowledge (s 1308(2)). The plea of guilty cannot thus be traversed and the appellant must be dealt with on the basis of the relevant knowledge. In my view this is correct. [37] The respondent submits the offence could not be regarded as trivial. R v Wall29 involved an offence against the same section of the Corporations Act as here. A 28 Walden v Hensler (1987) 163 CLR 561. 29 Supra. -- 15 of 21 -- 16 Crown appeal against the inadequacy of the good behaviour bond which was imposed at first instance was successful. The facts were that Wall was involved in a false statement in a document lodged with ASIC as to share capital; as here, he blamed his accountant and said he had signed a document without checking its contents. He was a party to the false form signed by the accountant, which had the effect of representing, in the context of entering into a lease, that the company had paid up share capital of $907,800, whereas the true position as to subscriptions for shares at around the relevant time was less than $300,000.30 Mr Wall had said to the accountant – who eventually gave evidence against him – “I owe you one mate” when this issue was discussed. [38] The court said that it was impossible to see how a Judge could have formed the view that a discharge was an appropriate sentence to reflect the objective seriousness of the offence. It could not have been considered to be trivial or committed under extenuating circumstances. It was a dishonest criminal act involving a serious breach of trust. Later, the judgment also referred to the purpose of the section being to protect the public from the effects of false or misleading information being provided. That would be seriously undermined without a significant element of general deterrence reflected in the sentence imposed for a breach of the section. Further, there was reference to the disqualification provision, and the court said: “Although s 206B is not intended as a means of exacting further punishment, the recording of convictions in such cases has been recognised as having a particular significance… by reason of the restrictions to which they give rise, and also be reason of the need for general deterrence…”31 [39] It is noteworthy that Wall was convicted after a trial, and thus did not have the benefit of the early plea of guilty that the present appellant does. Further, there was potentially a greater loss involved, for the Council which entered into the lease, than occurred to the judgement creditor in this case; although the Council likely had much greater ability to sustain the loss, in a relative sense. Nevertheless, in my view the respondent is correct; there is no basis to think the Magistrate’s conclusion as to lack of triviality in this case is incorrect; it was, as in Wall, a dishonest criminal act involving a serious breach of trust. The comments from Wall have application here. 30 At paragraph [64]. 31 See generally Wall at [78]-[80], [86]-[87]. -- 16 of 21 -- 17 [40] The respondent also refers to R v Tomaiuolo32 where the Court of Criminal Appeal observed that a failure to provide accurate information to ASIC constitutes a serious offence; the provision of accurate information to ASIC is fundamental to ensure that those who deal with corporations have current and accurate information. The section – s 1308 – was enacted for the protection of persons entering into commercial transactions with corporations.33 Imprisonment was considered appropriate in that case. [41] In my view the respondent’s submissions should be accepted on this issue; no error is demonstrated in the Magistrate’s conclusion that the offence was not trivial. Fourth issue: S 19B (1)(d)(ii) – The reparation factor [42] Another issue which was raised was whether the Magistrate had overlooked the possibility of reparation under s 19B(1)(d)(ii) as a condition of a discharge. The idea that was tentatively advanced was that perhaps the appellant could now offer, although he did not at the time, to make reparation by way of paying the outstanding judgment to the original judgment creditor. However, the respondent pointed out that such a course would not really be within the purview of s 19B, because the reparation referred to was “in respect of the offence concerned”. The judgment debt did not come about because of the offence; at most the offence made the judgment debt more difficult to recover. This lack of a causative nexus means that reparation, not being in respect of the offence, could not properly enter into the sentencing factors, as of course it had not at first instance. The respondent thus submitted that no error was identified on this issue; in my view this is correct. Fifth issue: S 19B - The inexpediency/ expediency stage Appellant’s submissions [43] The appellant further submitted that in relation to the second stage of the s 19B exercise, the inexpediency/expediency stage, the general matters relevant to the sentencing process set out in s 16A(2) of the Crimes Act, are relevant. No doubt this is correct. The appellant submits in his second outline of argument34 at p5 that the 32 [2007] SASC 34 at [48]. 33 At [47]. 34 Filed 4 March 2021, Court file document 8. -- 17 of 21 -- 18 Magistrate did not get as far as considering these matters, and should have done so. This seems quite incorrect, as set out below (see [47] and the relevant transcript references). [44] In any case, in support of this submission the appellant emphasises the nature and circumstances of the offence which are argued to be at the lower end of the scale. Section 16A(2)(f) is relied on. It refers to contrition including by taking action to make reparation. However, as outlined above, reparation does not really seem to surface in the circumstances of this offence. Certainly, the money has never been repaid, whether it is directly relevant to this offence or not. The appellant also relies on (g), that the appellant pleaded guilty at the earliest opportunity; clearly this is correct, and the plea was taken into account. Reliance is placed on (h), that the appellant has cooperated with law enforcement, although it is not specified how. This may be a reference to the plea of guilty (again, clearly this was taken into account). The appellant also refers to (j), the fact that the proceedings have had a deterrent effect on him; no doubt this is so. [45] Reliance is also placed on (p), the probable effect that the sentence would have on the appellant’s family or dependants. It is said that it can be assumed that the appellant’s wife will be affected. Presumably this is said to be because the appellant’s business would be affected along with his income, and that his wife would suffer as a result. This is possible but tenuous; there is no specific evidence or indeed submission referring to such a factor, or why it would distinguish the case from the general category of those to which the offence, and s 206B, relates. [46] It is submitted in this context that the word “expedient” has its ordinary meaning of “advantageous”, “desirable”, suitable to the circumstances of the case”.35 This is no doubt correct. Respondent’s submissions [47] As to the s 16A(2) factors, the respondent points out that the relevant factors were placed on record by the prosecutor and the appellant and referred to by the Magistrate in the sentencing remarks. As outlined above, the Magistrate referred to the early plea of guilty, demonstrating remorse and insight and saving of costs to the system; the 35 Riddle v Riddle (1952) 85 CLR 202. -- 18 of 21 -- 19 appellant’s lack of criminal history, and prior good character as supported by the references and charity donations; the facts of the offending and the context thereof; the importance of general deterrence; and the consequence for the appellant of the disqualification from managing a corporation for five years36. Contrition was specifically referred to37. [48] As outlined above, in my view the Magistrate was correct in concluding the appellant did not satisfy the first stage of the two stage test for s 19B. However her Honour, appropriately and carefully, went on to consider the expediency of imposing no or nominal punishment and had regard to the s 16A factors.38 She concluded that it was not inexpedient to inflict any punishment or to inflict any punishment other than a nominal one, nor was it expedient to release the appellant on probation.39 [49] The submission that the s 16A matters were not considered is not made out and no error is demonstrated in this part of the reasoning process. Sixth issue: Lack of a fair hearing [50] The appellant also relied on an added ground of appeal that he was denied a fair hearing in that he was not made fully cognisant of his rights to the full range of sentencing options available pursuant to s 19B(1)(d) of the Crimes Act 1914 (Cth). This relates to the idea of a bond and reparation not being specifically discussed. The submission is that this was not done, which gave rise to unfairness. It is also said the Magistrate did not take into account the issue of adequate punishment, s 16A(2)(k). The appellant refers to a number of cases on the court’s duty to advise a self- represented litigant,40 although the referenced cases concern trials rather than pleas of guilty; Tomasevic v Travaglini concerned an appeal, from a conviction after a trial. A number of the judicial statements referenced mention the need to avoid the judge being or being perceived as the litigant’s advocate. As was said in Andelman v The Queen, the touchstones are fairness and balance.41 36 Decision generally p 2-5. 37 Decision p 3 l 20. 38 Decision p 5. 39 Decision p 5 ll35-40. 40 MacPherson v R (1981) 147 CLR 512; Andelman v The Queen [2013] VSCA 25; Isherwood v Tasmania [2010] TASCCA 11; Tomasevic v Travaglini [2007] VSC 337. 41 At [62], referring to O’Connell v Western Australia [2012] WASCA 96. -- 19 of 21 -- 20 [51] As outlined above, the appellant did mention the idea of a discharge (i.e. a good behaviour bond, s 19B (1)(d)(i)), and the Magistrate thoroughly and fairly discussed the details of s 19B. As also outlined above, reparation does not seem to have been practically available. It certainly was not advanced by the appellant at the sentence hearing. [52] The Magistrate did refer to s 16A(1) and (2) and all of the factors therein. She specifically referred to the need to impose a sentence that is of a severity appropriate in all the circumstances of the offence.42 In these circumstances it is difficult to conclude that her Honour did not have regard to s 16A(2)(k), and in my view that proposition is not made out by the appellant. Respondent’s submissions [53] The respondent refers to Wood v Marsh43 as to the duties of a court when an unrepresented person is pleading guilty. At [35] the guidelines are described as including ensuring the defendant appreciates the plea is a matter for his own decision; he is entitled to seek legal advice and representation; he should be informed of the seriousness of the charge and the penalties that may be imposed; that he is entitled to put matters forward in mitigation; that he is entitled to dispute or comment on the facts; the court should be quick to recognise denials or explanations that suggest he should not have pleaded guilty (as occurred here); and generally ensure the defendant is appraised of his rights and duties, and be vigilant to keep the proceedings free from error or misunderstanding. The respondent submits the elements of this template were satisfied, as set out in the above summary of the proceedings. [54] As was said in Pavlovic v The Commissioner of Police: “It is well established that the fundamental importance of the neutrality of the trial judge in the contest between adversaries means that the judge should refrain from giving a party advice as to how to run his case.”44 [55] As to the explanation of the sentencing options, the respondent notes that the appellant indicated at the sentence that he had obtained legal advice and, as noted 42 Decision p 2 ll 12-14. 43 (2003) 139 A Crim R 475. 44 Supra, fn 6, at [22]. -- 20 of 21 -- 21 above, he did seek an order under s 19B of the Crimes Act. This in itself is suggestive of prior legal advice, and the appellant said he had spoken to a solicitor.45 As outlined above, s 19B was fairly extensively discussed. The respondent therefore submits that it cannot be said that the appellant was not made fully aware of all relevant matters. For similar reasons, the respondent rejects the submission that the appellant was denied a fair hearing. [56] In my view the respondent’s submissions on this issue should be accepted. The hearing was fair and no error is demonstrated. It was not for the Magistrate to conceive of and suggest the possibility of reparation which was not offered and probably not causally or legally linked to the offending. Indeed, if the respondent is correct in submitting that the reparation order was not available because it would not have been in “respect of the offence” – and I am inclined to conclude that she is correct – it would have been improper for the Magistrate to have raised it, thereby possibly imposing an unrelated burden on the appellant. Of course, had the appellant made an ex gratia payment to the creditor prior to the sentence, he may have been in a position to argue that this was relevant to his character, contrition and possibly even the issue of triviality; however this is not to say the Magistrate should have conceived of the idea of unrelated reparation, and that the failure to do so was somehow unfair. Other matters [57] The appellant during submissions criticised the Magistrate’s observation that recording of a conviction was not intended to further punish him.46 The complaint was that it did have that effect, and thus this represented an error in some way. In my view this misunderstands the observation, which was merely a reference to the intention and function of s 206B, as referred to in the quoted passages from R v Wall (supra). In my view there was no error in the observation. Conclusion [58] It follows from the above that the appellant has been unsuccessful as to all of the issues raised on the appeal. No relevant error is identified nor was the sentence manifestly excessive and in the circumstances the appeal is dismissed. 45 T1-2 l 21. 46 Decision p 5 l 29. -- 21 of 21 --