No. 231 of 1998
- I shall ask my brother Tadgell to give the first judgment in
this matter.
TADGELL, J.A.:
- The applicant, Christopher Jablonka, seeks leave to appeal
against a sentence imposed on him in the County Court on 16 September
last
year. He had pleaded guilty on 14 September to one count of making a false
document contrary to sub-s.(1) of s.83A of the Crimes Act 1958 (count 1) and to
one count of using a false document contrary to sub-s.(2) of that section
(count 2). He was sentenced to be imprisoned
for three-and-a-half years on
count 1 and for three years on count 2, producing a total effective sentence of
three-and-a-half years.
A non-parole period was fixed of two-and-a-half years.
- Each count arose from the one document, which bears the date 4
August 1993 and describes itself as the last will and testament
of David
Michael Shannon of 44 Kooyong Road, Armadale, Victoria. Mr Shannon, an artist,
died unmarried on 17 October 1993, aged
70. His estate, the bulk of which
consisted of paintings executed by him, was sworn for probate at some $1.4
million. At the time
of his death he was suffering, and had suffered for some
years, from AIDS and Parkinson's disease. He was, especially toward the
end of
his life, physically incapacitated to a serious degree, tremulous and inclined
to be mentally confused. He had been receiving
regular home nursing assistance
from the Stanhope Nursing Service since June 1990. In December 1990 the
applicant, a male nurse,
joined that organisation. He was first assigned to
care for Mr Shannon in January 1991 and ultimately became Shannon's principal
care-giver.
- Mr Shannon instructed Messrs Aitken, Walker and Strachan,
solicitors, to prepare a will, which he executed on 19 April 1988. The
will
appointed one of the testator's nephews and one Rowe as executors and named the
latter as residuary beneficiary after making
provision for six pecuniary
legacies to others, each of $25,000. On 6 March 1992 Shannon made a codicil,
also prepared for him by
Aitken, Walker and Strachan, by which he revoked the
pecuniary legacies and substituted six others of $10,000 each, including one
to
the applicant. In other respects the codicil confirmed the
will.
- Following Shannon's death the executors of the will applied
for a grant of probate. The firm of Aitken, Walker and Strachan, acting
on
their behalf, corresponded with the applicant as a beneficiary but he did not
in his response make any mention of any inconsistent
testament. It was not
until 17 November 1993 that the firm received advice from the firm of Sevdalis
and Associates of their possession
of a document presented as a will attested
by Mr Shannon on 4 August 1993. By the terms of that document the applicant
and a sister-in-law
of Shannon's were appointed executors and the applicant was
substituted for Rowe as residuary beneficiary of the estate, and there
were
otherwise four pecuniary legacies of $10,000 each. Caveats were apparently
filed with the Registrar of Probate on behalf of
the executors of the 1988 will
and the present applicant.
- The putative will dated 4 August 1993 occupies a single sheet
of Shannon's A4 letterhead and is principally, although by no means
expertly,
typewritten. At the top centre of the page is typed "Date 4th of August 1993"
and immediately below that is written, by
an evidently quivering hand, "4th
August 1993". At or near the foot of the page in the centre there are written
two signatures,
apparently of Mr Shannon. One reads "D.M. Shannon" and
immediately beneath that is the other, reading "Michael Shannon". Crowded
into
the bottom left-hand corner of the page are the names and particulars, all
handwritten, and signatures of three persons apparently
in the capacity of
witnesses. These are of Warren Trompf, pharmacist, Peta Hooley and Anthony
John Woollard, in that order. The
accounts given to investigating officers by
these three of their signing are not immediately reconcilable, if reconcilable
at all.
- Mr Trompf has stated that as a pharmacist he has witnessed
many documents. He had no specific recollection of signing the document
in
question but could recall signing a document for an elderly, sick man in his
car outside the pharmacy. The document had already
been signed, he said, and
he had required the man to sign it again in his presence. He stated that he
would not have signed the
document in the cramped position above the other
signatures as indicated by the current state of the document, and he drew from
this
that the other signatures had been added after his own. He was unable to
state the date of his signing the document. If Mr Trompf's
account be accepted
as relating to the putative will, it would seem that he was the first so-called
witness to sign, and that at
the time he signed neither of the other so-called
witnesses was present and Shannon's two signatures were affixed. It would
follow
that Shannon could not have signed in the presence of the other two
so-called witnesses, or either of them.
- Peta Hooley was, between February 1992 and October or November
1994, in a de facto relationship with the applicant, to whom she
bore a child
on 18 September 1993. She made three relevant statements to police and had
earlier sworn an affidavit in support of
an application to obtain probate of
the putative will. In the final statement she said that on a date prior to
September 1993, when
she was very large with child, she had been asked by the
applicant to attend Shannon's house and there, in the company of Shannon
and
Woollard, she had signed the will. She was not sure whether Shannon had signed
in her presence or before but believed the signature
of a chemist was already
on the document. In the earlier statements she had falsely obscured the
duration of her relationship with
the applicant and stated falsely that she had
seen Shannon sign the will. She did so, she stated, under the instructions of
the
applicant. After Shannon's death the applicant telephoned Hooley and asked
for her opinion as to whether he should submit the will.
She said it was
nothing to do with her. The applicant told her to think of their child, and he
later arranged for Hooley to attend
the offices of his solicitors, Sevdalis,
where she swore her affidavit.
- Anthony Woollard was a builder engaged to do renovation work
on the applicant's house. He has stated that he recalls being asked
by Shannon
to witness his will, that he observed Shannon sign and then signed in Hooley's
presence. He could neither recall the
date of his signing nor account for
Trompf's signature or the repetition of the deceased's signature on the
document.
- Plainly enough the statements of the nominated witnesses,
which were available to the learned sentencing judge, at least throw
serious
doubt on the circumstances of execution of the putative will. The statements
of these persons obviously conduce also to
a serious doubt that Mr Shannon knew
and approved of all of the contents of the putative will. Further doubt as to
the validity
of the document was provided by a report prepared by Mr L.W.
Timewell, a well known and very experienced expert document examiner,
whose
services were retained by the solicitors for the executors of the 1988 will in
the course of their application for a grant
of probate of that instrument and
their opposition to any grant of probate of the putative 1993 will. Timewell
scientifically examined
the 1993 document and a typewriter and a typewriter
ribbon on which the document, among others, was produced. By reference to the
results of his examination he offered the following conclusions, among others:
(a) that the 1993 document was not typed all at the
one time but was developed
over a period during which other documents, including correspondence bearing
dates, were produced by the
same typewriter and ribbon; (b) that the 1993
document had probably been originally begun on 14 or 15 October 1993 and had at
some
later stage been backdated to 4 August 1993; (c) that the five signatures
on the document, that is, the two Shannon signatures and
those of the three
so-called witnesses, appear to be written in at least three different inks;
(d) that the Shannon signatures and
the signature of Trompf were added before
paragraph 8, which was a clause revoking prior wills, and also before the last
five lines
of the attestation clause; (e) that the attestation clause, or most
of it, was typed after and around the D.M. Shannon signature
and was typed over
part of that signature.
- Timewell's conclusions, which were provided in a very
comprehensive report dated 6 March 1995, were evidently accepted, or
substantially
accepted, by the applicant or those advising him. No attempt was
made to persist in an objection to a grant of probate of the 1988
will or to
pursue an application for a grant to the putative 1993 will. An order absolute
for a grant with respect to the 1988 will,
but not the codicil, was made on 3
August 1995 by consent of counsel for the executors and the solicitor for the
present applicant.
- Most of the information I have just stated about Timewell's
report and the probate proceedings was opened to the County Court judge,
but a
very little of it I have derived from the court file relating to those
proceedings.
- In, I think, January 1995 the applicant was interviewed by
police in connection with the putative 1993 will but he declined to
comment.
He was charged with perjury in relation to a short affidavit sworn by him on 25
July 1994, apparently in support of an application
or intended application for
probate of the 1993 document. It is instructive to read the three substantive
paragraphs of the affidavit,
which are as follows:
"1. On the 4th day of August 1993 I attended at the pharmacy of Mr
Tromph [sic] at 1028 High Street, Armadale, in company with Mr
Shannon. Mr
Shannon had wished to have his will certified by Mr Tromph.
2. On the 4th day of August 1993 I spoke to Mr Tromph inside the pharmacy and
he was kind enough to attend to Mr Shannon outside
at the car in order to
certify the will as desired by Mr Shannon.
3. The reason therefore that the third signature appeared on the will in
addition to those of Mr Shannon and the witnesses was
intended to confirm and
certify Mr Shannon's last will."
- The affidavit was false at least as to the date 4 August
1993, referred to in paragraphs 1 and 2, as is now conceded on behalf
of the
applicant. The perjury charge, however, was ultimately withdrawn and the two
counts on which he was sentenced replaced it.
- Upon the plea it was, as I gather, common ground that the
applicant typed the 1993 document on Shannon's typewriter. As I understand
the
transcript, the applicant's counsel, Mr Phillip Dunn, Q.C., conceded in
accordance with the opening made to the judge by Crown
counsel that the date
and most of the attestation clause and clause 8 (the revocation clause) were
typed in October after Trompf
signed. Initially, according to Timewell's
report, the attestation clause read simply "Signed by the abovenamed David
Michael Shannon"
on one line. At some time later, five following lines were
added, being obviously in part fitted around and typed over the signature
"D.M.
Shannon". The five added lines read more or less conventionally, though with
some textual imperfections, "as and for his last
Will and Testament in the
presence of us both being present at the same time who at his request and in
his presence and in the presence
of each other have hereunto subscribed our
names as witnesses".
- The judge in his sentencing remarks expressed himself to be
satisfied that, notwithstanding the two signatures of the deceased,
the
putative will "in no way reflected his testamentary intentions". His Honour
also expressed himself to be satisfied that "you",
referring to the applicant,
"plotted an opportunity to overturn the testator's intent in the full knowledge
of the testator's assets.
I am also satisfied that you worked at the deception
over a period of time." His Honour also said that he found that the use of
the
deceased's typewriter had been "designed to give a façade of
authenticity" to the document. The judge also said that
"it is clear from some
of the depositional material that you were overbearing and lordly, inclining to
manipulate the relationship
for your self interest. ... His vulnerability
provided you with your opportunity to preserve a proper balanced professional
relationship,
or, as you chose, an opportunity to exploit the dependency and
vulnerability." Towards the end of his remarks the learned judge
told the
applicant that his conduct was "an overt attack upon civilised values".
Obviously, therefore, his Honour took a very poor
view of the case that was put
by Mr Dunn for the applicant, and the sentence he awarded is thus
explained.
- The notice of application for leave to appeal complains in
grounds 1 to 4, variously expressed, that the judge impermissibly characterised
the extent of the applicant's criminality. In substance - I need not read
their terms - these grounds allege that the judge wrongly
proceeded on the
footing that the applicant had fabricated the entirety of the 1993 document in
finding that it "in no way reflected"
the testamentary intention of Mr Shannon.
It is said that in doing so the judge travelled beyond the particulars of the
falsity of
the document as opened to the judge by the Crown, which were in
substance common ground on the hearing of the plea. The point made
for the
applicant on the plea, which as it is now submitted his Honour ignored, was
that the applicant had not been charged with
typing a document which in no way
reflected Shannon's intentions. Counsel also put to the judge that his
instructions were that
"the bulk" of the document was typed by the applicant at
the direction of Shannon, who because of his afflictions was unable to manage
to do it himself. The sentence was, accordingly, criticised in this Court as
being both inconsistent with the facts which were accepted
as common ground and
proceeding on a basis that could not be taken to be proved beyond reasonable
doubt. The testamentary intention
of Mr Shannon, it was said, could at best be
no more than a matter of speculation. Moreover, it was said that the
applicant's counsel
had not been given the opportunity to make a response to
the factual basis inconsistent with the agreed facts on which the judge
was
proposing to sentence the applicant. It was said also that the evidence shows
or suggests that the deceased knew the document
he was signing was a will and
that, to put the matter at its lowest, it could not be assumed that the
document did not express or
accord with his testamentary intention. It could
not be supposed or concluded beyond reasonable doubt, it was submitted in this
Court, that the deceased had not intended to benefit the applicant: he had,
after all, previously provided in the codicil for a
bequest to him.
- In summary, the submission relying on grounds 1 to 4 was that
the judge in part sentenced the applicant for wholly inventing the
will and
thus overturning the deceased's testamentary intention. In sentencing in that
way, the judge gave no opportunity to counsel
to deal with the question of
aggravation, contrary to what was required in such authorities as R. v. Storey
[1998] V.R. 359. On the evidence, it was submitted, the most that the judge
could conclude was that there was a document that the deceased intended
to be
his will, typed by the applicant at the dictation of the deceased, and that the
gifts made by clauses 3, 4, 5 and 6, which
were the only dispositive clauses,
were intended by him. Other matters added, perhaps without the knowledge of Mr
Shannon, were
added for purposes consistent with those that he intended. Thus,
as it was submitted, the learned judge misjudged the basis on which
the
applicant fell to be sentenced for the admitted infractions of sub-ss.(1) and
(2) of s.83A which were, when viewed in their proper perspective, comparatively
venial rather than comparatively aggravated. It was submitted
that less
culpability should be assigned to an act of fabrication of parts of a will done
with the view of carrying out the will-maker's
intention rather than to a
fabrication designed to further the desire of the fabricator himself.
- There is, I think, some force in these submissions. I do not
detect any evidence or admission that demonstrates or would allow
an inference
that the dispositive clauses of the 1993 document were otherwise than in
accordance with Mr Shannon's intention. It
appears to me, therefore, that the
learned judge misled or may have misled himself in expressing his satisfaction
that the document
in no way reflected Mr Shannon's testamentary intentions. It
may well be, so far as the material discloses, that Shannon had made
up his
mind to make a new will to provide for the disposition of his estate in
accordance with the dispositive clauses as typed by
the applicant in the
document at Shannon's direction. For the respondent in this Court, counsel in
effect conceded as much. It
was erroneous to have been influenced, as the
judge appears to have been in passing sentence, by his view that the
dispositive clauses
did not reflect Shannon's intention. His Honour's
sentencing remarks give the strong impression that the applicant fell to be
sentenced
on the footing that he was responsible as a formulator rather than an
amanuensis of the dispositive provisions of the 1993 document.
That was not a
permissible basis for the sentence which must, because of the error, be set
aside, the application for leave to appeal
being allowed accordingly. Again,
Mr Gyorffy for the Crown did not resist that conclusion.
- Mr Woinarski, for the applicant, directed substantial
argument in this Court towards a conclusion that, because there could be
no
proper inference drawn against the applicant that what he did was contrary to
the desires of Mr Shannon, the criminality of his
conduct was slight. This, in
my opinion, is not necessarily so. The culpability of the applicant's conduct
is not to be gauged
merely by reference to the wishes or desires of, or its
impact upon, Mr Shannon. The offences to which the applicant pleaded guilty
are not necessarily limited to their effect on Mr Shannon. A moment's
reflection should reveal that the making in 1993 of the document
professing to
be a will of Mr Shannon and its publication was calculated to affect others
than him. The document was obviously inimical,
actually or potentially, to the
interests of those who stood to benefit from the 1988 will. From the point of
view of the best interests
of those people, it was immaterial that Mr Shannon
desired to disinherit them if he did not effectively do so. Mr Woinarski
conceded
for the applicant, inevitably as I should think, that the putative
1993 will stood no realistic chance of a grant of probate upon
being subjected
to scrutiny. A conclusion that it had been duly executed and attested in
accordance with s.7 of the Wills Act 1958, which applied to the 1993 document,
was not probable. What Mr Shannon might or might not have desired to achieve
by the 1993 document
was substantially immaterial to a consideration of the
criminality on the applicant's part in purporting to erect the document to
a
state of validity and promulgating it as a valid will. Those who were
concerned to prove and benefit under the 1988 will and the
codicil to it were
entitled to do so unless a subsequent valid testamentary instrument disentitled
them. The intention or desire
of Mr Shannon, as opposed to his execution of a
valid subsequent testamentary instrument, was nothing to the point in terms of
their
entitlement. Those beneficiaries under the 1988 will and the codicil
were victims of the applicant's crimes, even if Mr Shannon
was not, although it
is by no means to be assumed that he was not.
- Mr Woinarski further submitted that, because the flaws in the
putative 1993 will were fairly readily detected, the offences should
be
regarded as less serious than if a more sophisticated means of deception had
been practised. I find it difficult to give much
weight to that contention.
The fact is that the applicant, although not in a fiduciary relationship to
Shannon, was practically in
a position of utmost trust. It cannot be assumed
that Shannon authorised the applicant to falsify the 1993 document by, for
example,
attempting to make it look as though it had been duly attested. The
handwritten date near the top of the document, if it was written
by Shannon, is
admittedly puzzling. Both it and the typewritten date above it, both false,
were presumably put there for a purpose
which might or might not have an
innocent explanation. No explanation of this or of any other of the
falsifications was forthcoming
from the only available source, and it cannot be
assumed that the handwritten date is exculpatory of or favourable to the
applicant
in an assumption that it was written by Shannon.
- The applicant's crimes are, in my opinion, to be treated as
serious because of the nature of the falsified document and the applicant's
position towards Shannon, which in some respects gave him practical dominion
over his vulnerable patient. The falsification of the
document was, of course,
a prerequisite to its use, and perhaps for that reason the learned judge
regarded the offence against sub-s.(1)
of s.83A as deserving a somewhat
stronger sentence than the offence against sub-s.(2). In the circumstances,
however, I am disposed
in this case to treat the two offences as akin to two
sides of the same coin, and not to distinguish between penalties for them.
For
much the same reason I would not accede to the Crown's suggestion that there
should be any cumulation of the sentences.
- The applicant is Polish-born and now aged 38 years. He came
to this country some 18 years ago. He has no prior convictions and,
so far as
appears, is proficient as a nurse. He married last year and there is one child
of the marriage. He is the father of two
older children. I have considered
the factors in mitigation that were placed before the judge and on which Mr
Woinarski relied,
without much elaboration here, including the pleas of guilty
and the delay between the applicant's first being charged and the final
disposition. It seems unlikely that the applicant would re-offend, and the
matter of his deterrence specifically does not loom large
in the sentencing
process.
- The factor of general deterrence, however, is of a quite
different order. The case is one which in my opinion demands a sentence
that
will make an example of the applicant such as to send a message to the
community that the falsification of a will by a person
in a position of trust
towards the would-be testator is to be very gravely regarded by the law. I
would propose that the applicant
be sentenced on each of counts 1 and 2 to be
imprisoned for three years and that there be a non-parole period of two
years.
PHILLIPS, C.J.:
- I agree with the conclusions of Tadgell, J.A. and I would
subscribe to his Honour's reasons therefor.
PHILLIPS, J.A.:
- I agree also.
PHILLIPS, C.J.:
- The orders of the Court are:
The application for leave to appeal against sentence is
granted, the appeal treated as instituted, heard instanter and
allowed.
The sentence imposed on the applicant in the court below is
varied so as to set aside the sentence there imposed on count 1 and the
non-parole period there fixed. In lieu thereof the applicant is sentenced to
be imprisoned on count 1 for three years. The sentence
on count 2 is
confirmed, making for a total effective sentence of three years. The Court
fixes a new non-parole period of two years.
The Court declares that the applicant has already served 149
days of pre-sentence detention as part of the said sentence and directs
that
the making of this declaration and its contents be entered in the records of
the Court.
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