My friend and colleague Luke Dam wrote to me about a story appearing in Victoria’s Herald Sun newspaper “SES raises safety over equipment theftshttp://lnkd.in/bjM2rw6.

The story reports on thefts from SES units including incidents where unit members have fraudulently obtained benefits by either taking money, or getting the SES to pay for private expenses.   In one case a Unit Commander entered a plea of guilty ‘… to charges of making false documents after he stashed $14,000 of SES funds in a secret bank account and in a safe. He admitted forging minutes purporting to be from a unit meeting, which gave him the authority to be the sole signatory for the unit’s account’. The Unit Commander ‘was found guilty without a conviction and fined $600’.

Luke asks ‘How can there be no conviction if they’ve been found guilty? Is that correct? Is there a trigger point or is it a discretionary call?’

It is in fact a discretionary call.  The Sentencing Act 1991 (Vic) s 7(1) says: “If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act…” it then goes onto list a number of sentencing options, most, but not all, of which start with ‘record a conviction and …’   A court may, however:

 (e) with or without recording a conviction, make a community correction order in respect of the offender; or

(f)  with or without recording a conviction, order the offender to pay a fine; or …

(j) without recording a conviction, order the dismissal of the charge for the offence…

In deciding whether or not to record a conviction:

 … a court must have regard to all the circumstances of the case including—

(a) the nature of the offence; and

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects. (Sentencing Act 1991 (Vic) s 8(1)).

If no conviction is recorded, a person can honestly say, if completing a police or other check, they have never been convicted of an offence and automatic penalties that apply ‘on conviction’ (such as loss of licence for drink driving) do not apply, as there is no conviction!

Now I don’t know anything about the Unit Commander referred to in the paper but one can see why some of those issues could be relevant.  Think of s 8(1)(b) and (c) above.  Someone’s who has risen to the rank of Unit Commander can probably point to, apart from this offence, good character and contribution to the community.  He may well be severely impacted by a conviction in that it may affect his employment and the court may think that the consequences of his volunteering should not extend that far, particularly if volunteering for the SES has been a significant part of his life, perhaps that gave him social status and credit, and that has now been lost to him. In Castle v DG SES [2008] NSWCA 231 the court held that the potential ‘damage to the claimant’s reputation’ meant that a unit controller should have been given the opportunity to be heard before the unit of which he was in charge was disbanded and his position as ‘controller’ removed.  The standing one has as a unit controller was considered sufficient in that case, and equally the loss of standing on being found to have fraudulently appropriated funds, whilst justified, is not insignificant.   In that sense being caught will have impacted upon his ‘social well being’ sufficiently so that the further consequences of a conviction are not warranted.

There is also the issue of ‘the nature of the offence’.  We don’t know but can imagine that one’s service to an organisation like the SES may well contribute to one’s offending and so the nature of the offence.  Organisations like the SES recognise that service with them can be damaging (see Creating a network of support <http://www.ses.vic.gov.au/media/news/news-items/creating-a-network-of-support>; in NSW see Critical Incident and Counselling Services http://www.ses.nsw.gov.au/volunteering/cics/).  If it is recognised that people can be harmed by their service, it also has to be recognised that not everyone responds to that harm in the same way or even acceptable ways.  The SES may want to assist members ‘who may be experiencing or have experienced a traumatic incident or stressful reactions following their operational involvement in an event’ (http://www.ses.nsw.gov.au/volunteering/cics/cisp) or events and hopefully that includes all members regardless of how their trauma manifests itself.  Services should not only support those who demonstrate their trauma in ‘acceptable’ ways (crying, loss of concentration) but not those who behave in an ‘unacceptable’ way (violence or other crime).  The courts may deal with their crime but if it is a manifestation of their service, then the SES (or other service) should still be willing to support them.

Another issue in organisations like SES is that there is a limited pool of members to appoint to positions of authority. If the role of Unit Commander was a full time, paid job there would be a wider selection of applicants and people may be prepared to move to take up the job.   Where it’s a volunteer position the pool of potential appointees is largely limited to the members of the unit.  Picking the best candidate may be a matter of picking the one person left standing after the call for volunteers; and that person may not be fully up to the job; they may have been a great team leader or rescue operator, but does that make them a financial manager?  I note that the Auditor General’s report into the NSW SES has noted the need to assess what volunteer staff are required and recruit accordingly (New South Wales Auditor-General’s Report, Performance Audit Management of volunteers: NSW State Emergency Service (2014)).

It may be that a Unit Commander is appointed to a job they are not really suited for and not given adequate direction and supervision so opportunities for fraud, or just mistake, may well present themselves.  That person also needs to be supported by the Service, which should also take responsibility for the systems and process that are in place to protect its assets.

Did any of this apply here?  I of course have no idea of the facts of the case reported here and whether the members were just ratbags, or whether after years of service, perhaps pressure from home, many, many hours of unpaid work, compounded by traumatic events, some opportunity presented that but for their service they would never have acted upon.  If that’s the case (or somewhere between those two extremes) a court may well take that into account when considering ‘the nature of the offence’ and determine that if they are now removed from their role, probably removed from the SES, the likelihood of reoffending is low so that a conviction is not warranted.

It may be, I would even hope that in the right circumstances it would be, the case that the SES would have stood by the member and said in effect – they did the wrong thing, they even hurt us, but they are one of ours and if their service harmed them then we need to support him or her.  If that did occur (and again to reiterate, I have no idea if it did, or would or should have in this case) that would go a long way to convincing a court that a conviction is not warranted.

To return to Luke’s question, yes there can be no conviction even if a person is found to have committed an offence.  There is no ‘trigger point’, each case has to be judged on its merits, so it is a discretionary call, butt, like all sentencing decisions, it is not an unlimited discretion.  The court has to consider the matters set out in the Sentencing Act 1991 (Vic) s 8(1) plus general principles of sentencing law (which one can’t begin to spell out here).