IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION Case No.

D10318053

JOH TYQUIN v CRAIG THOMSON

Plaintiff

Defendant

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MAGISTRATE: WHERE HELD: DATE OF HEARING: DATE OF FINDINGS: DATE OF SENTENCE: CASE MAY BE CITED AS:

C ROZENCWAJG MELBOURNE 2 5 DECEMBER 2013, 20 23, 28 29, 31 JANUARY 2014, 18 FEBRUARY 2014 & 18 MARCH 2014 18 FEBRUARY 2014 25 MARCH 2014 VPOL v THOMSON

SENTENCE (NOT FOR PUBLICATION)

APPEARANCES: For the Prosecution

Counsel Ms Lesley Taylor SC Ms Deborah Mandie Mr Greg James AM QC Mr Anthony Lewis

Solicitors Office of Public Prosecutions

For the Defendant

Galbally & OBryan

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D10318053 HIS HONOUR: 1. Craig Thomson, you have pleaded not guilty to the charges before the court, and following a summary trial have been found guilty of 65 counts of dishonesty offences. These occurred over a period of years between 2002 and 2007 when you were national secretary of the Heath Services Union. The offences exhibit a brazen arrogance and sense of entitlement when dealing with the funds of union members for your own personal needs. It matters not that many of the offences relate to the payment for sexual services but that does go to highlight the selfish personal ends for which these offences were committed. 2. Nothing has been put before me to suggest that these offences were committed for anything other than greed. 3. The total monies involved in the offences is $24,538.42 which, sadly, by todays standards is not regarded as at the higher end of offences of dishonesty, it is still significant. 4. Your counsel Mr James has submitted that the offences were not sophisticated nor organised but more in the nature of opportunism. 5. I do not accept this latter proposition. Whilst it is true the offences did not require planning or organisation they are committed in a fashion that clearly reflects your lack of concern for any accountability. In fact accountability in the national office of the HSU is not something I saw much of in the evidence led before this court. 6. For this blatant dishonesty to continue on a regular basis over a period of years says much about the lack of accountability. 7. This no doubt accounts for the flagrant and insouciant manner in which these offences were committed by you. I can only conclude that you were well aware that you had little to be concerned about as far as being brought to account for the commission of these offences. 8. That you brought about the resignation of an employee for inappropriate use of a union credit card and the introduction of proper guidelines for the uses of union credit cards, likewise reflects an attitude of entitlement to place yourself above such constraints of propriety. 9. Though the sum of money involved may not be the largest, these offences were committed by you in a position of trust. As the national secretary of a union funded by the fees paid by members from their wages you were charged to protect and advance the interest of those members in the industrial sphere. To use those funds in the manner in which you did represents a breach of trust of the highest order. 10. You come before the court without any prior convictions and references have been tendered on your behalf attesting to your otherwise good character and involvement in activities on behalf of the community. 11. Whilst lack of priors and good character are matters that a sentencing court must take into account, the nature of this offending and how badly it reflects on your

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D10318053 character means that less weight would be given to this consideration than otherwise. 12. Ms Taylor, Senior Counsel for the prosecution has stressed your utter lack of remorse which demonstrates an absolute void where one might expect some acceptance of responsibility. In my view that is not an inappropriate observation. 13. Whilst lack of remorse cannot be used as a factor of aggravation of an offence, it can be relevant to the issue of the need for specific deterrence. 14. Mr James of Senior Counsel submitted that prior to any sentence of this court you had already suffered the loss of your career, as any opportunity to work in the public or political sector is now effectively closed to you. He also referred to the extra-curial punishment you have suffered, being subjected till the present day to the extremely intrusive and intense media coverage and the public humiliation this has brought with it. 15. It is true, as Ms Taylor points out, that to a limited extent this is something you have brought upon yourself by engaging with the media in an attempt to convince them, and the Australian public of your innocence in these matters. No doubt this intense media focus is rooted in political machination as well as an attraction for the salacious. 16. It may however be said that the loss of ones career in such circumstances stems directly from the trust that reposed in you; a trust which you have breached by the commission of these offences. 17. There is therefore an inherent tension between the aggravating feature of a breach of trust and the factor in mitigation of having lost ones career. Clearly the loss of any future career in the public arena is a matter to be taken into account in the sentencing exercise. In the final analysis if may come down to a consideration of all factors in what is referred to as the intuitive synthesis in sentencing. 18. That said, I do acknowledge the intense media coverage of this matter to an unparalleled degree, in my experience. I also accept that this has caused significant distress to your wife and children. 19. To that extent I take it into account this feature of extra curial punishment, though as has often been said, an accused in the public arena must expect the public backlash and the stigma of public opprobrium. However, this aspect may be of lesser significance where the persons reputation and office have been used or abused in the course of the criminal conduct as is the case here, rather than being independent of the nature of the offending. 20. These are all matters that a court should take into account in the sentencing process. 21. This ought, however, be tempered with what McHugh J said in Ryan v The Queen [2001] 206 CLR 267 ..taking public opprobrium or stigma into account would seem to favour the powerful and well known over those who were lesser known. I see no reason why the well known individual should get a lesser sentence than the person who is hardly known in his or her community
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D10318053 22. It is important that the community have confidence in the administration of justice and that the principle of equality of justice applies to all no matter considerations of position or wealth. 23. The sentencing remarks of the trial judge in The Queen v Cobb [1999] FCA 159 are relevant to this case, though dealing with offences committed by an elected member of parliament: 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. 24. These comments are equally apt for an elected member of a union executive. 25. There have also been tendered, on your behalf, reports from psychologists Stephen Woods and Kaylene Akins. 26. Ms Akins was your treating psychologist over 4 sessions during 2012. Her diagnosis of mild depression, severe anxiety and severe stress attributed to the ongoing pressures of the proceedings, the media and the length of time it was taking for this matter to be resolved is understandable. 27. I note she did not prescribe medication but dealt with these issues through breathing and relaxation techniques and strategies to assist with difficulties with sleep and stress management. 28. The forensic report from Mr Woods, based on a single psychological session, post verdict on 4 March 2014, diagnosed you with clinically severe depression. 29. In any case, neither report would impact to lessen your moral or criminal culpability but rather confine a consideration of the application of the Verdins principles to the concept that a sentence will weigh more heavily on an offender due to physical or mental health issues than on a person in normal health. 30. Taking all these matters into consideration, I am in no doubt that a sentence of imprisonment is the only appropriate disposition in this matter. 31. The only question is whether it is to be served by way of immediate confinement. 32. This requires consideration of a further factor, the issue of delay. 33. Following your resignation from the HSU in December 2007, an exit audit was conducted by the union followed by an investigation by Slater and Gordon. The matter was then referred to Fair Work Australia in 2008, which completed its report four years later, in May 2011. It was then referred to the NSW police who then
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D10318053 referred it to the Victorian Police on 16 September 2011. You were finally charged on 30 January 2013. 34. As Mr James said in his submissions, since the charges were laid you have, through your legal representatives, attempted to expedite the hearing of these charges. This has certainly been the case since this matter first came before me at committal mention last year. 35. The authorities recognise that delay in bringing prosecutions before the courts may give rise to a sense of unfairness, leaving an accused in a state of uncertain suspense causing stress and uncertainty in the lives of people facing the possibility of prosecution. Where no further offending has occurred, this permits the courts to exercise a flexibility in sentencing that may otherwise not have been available. 36. As Vincent AJA said in R v Schwabegger (1998) 4 V R 649 there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be maintained. 37. In the course of this case reference has been made to proceedings in Fair Work Australia. Whether those matters impacted on the delay in bringing this matter before the court I am unable to say. 38. However, even allowing for the aspect of delay, having regard to such a significant breach of trust and the brazen manner in which the offences were committed over a lengthy period of time, in the absence of any mitigating factors to reduce your moral culpability, I have concluded that a custodial sentence with some period of immediate confinement is warranted. 39. The offences for which you are to be sentenced, represent a series of offences of a similar character for the purposes of section 9 of the Sentencing Act 1991, for which it is appropriate to impose an aggregate sentence.

ORDERS: Convicted and sentenced to an aggregate sentence of 12 months imprisonment of which 9 months will be suspended for a period of 2 years.

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