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December 2014

Mick Baker versus Ralph Blewitt and others, WA Industrial Relations Court 1993 Part One

Ivory biggie

For some background you might find this article useful.

On 23 September 1993 the President of the WA Industrial Relations Commission heard Mick Baker's application for orders that Ralph Blewitt's decision to sack him be overturned.   The matter was listed for hearing on 17 November 1993, in between lots of evidence was sought out by the parties and I now have it and I'll publish it for you.

I've interviewed Ralph Blewitt on the record about what went on at the time and I'll publish that interview with him.

Baker had lost his job.  He was in a very good position legally to be compensated, he had plenty of witnesses and helpful documents.  He was all set to go with his lawyer briefed, ready for action and present at the court-room as the court was brought into session.

But Baker didn't turn up for the hearing.   His application was discontinued on the grounds that his lawyer could not contact him to receive further instructions.   Something made Mick Baker just cop his sacking sweet.

We'll try to find out what - or who - made him decide it would be in his best interests not to proceed.

Ralph Blewitt explains a little more about what happened in this audio interview:

Further background from the Royal Commission

We now know Gillard had been doing "unofficial" legal work for Bruce Wilson for at least 6 months prior to Slater and Gordon's September 1991 retainer as the AWU WA Branch lawyers.

In April 1991 she gave Wilson legal advice on how to remove the duly elected Secretary of the Branch saying at her departure interview,

Bruce had been an organiser of the Western Australian branch. He had had a falling out with the then secretary. The secretary had dismissed him, He had been appointed as a national organiser 'cause he enjoyed national support. He  had run in elections as national secretary contender. He hadn't been successful in that but he had run it close. He was at that point basically stalking the then WA secretary with a view to getting him out and taking his position, and he needed some legal advice about arrangements to do with that. And Graeme Droppit asked me if I would give him some advice when I was over there about those things…., and I stayed on in Perth on the Saturday for the purpose of meeting with Bruce Wilson.

Here's the Royal Commissioner in his report:

From 1989 or 1990 a firm of solicitors named Slater & Gordon had been acting for the Victorian branch of the AWU.   On the recommendation of Victorian AWU officials, in September 1991 the West Australian branch executive appointed Slater & Gordon to provide legal services for that branch.  One of the solicitors in the industrial unit of the firm was Julia Eileen Gillard.   She had risen fast in the firm to the rank of salaried partner.  She had been in practice for four years.   But she had done some work related to the West Australian branch of the AWU a little earlier. 

In an interview on 11 September 1995 Julia Gillard told her partners, Peter Gordon and Geoff Shaw, that in 1991 Bruce Wilson ‘was …  basically stalking the then WA secretary [Joe Keenan] with a view to getting him out and taking his position, and he needed some legal advice about arrangements to do with that’.

At the request of another Slater & Gordon solicitor she stayed in Perth after conducting some litigation in order to meet and advise Bruce Wilson.  Who, if anyone, was paying for this advice to the young pretender?  That is unclear.  But that was how she and Bruce Wilson first met in about April 1991.  They commenced what they called ‘a personal relationship’ in late 1991.

The Royal Commission did not inquire further about who retained Gillard or who paid her for her work to remove an elected state AWU Secretary.  It's hard to see any proper basis for her to act for an employee as he pursued his personal ambitions to remove an elected Secretary.  The Commissioner described it thus:

(Wilson) then succeeded in ‘persuading’ Joe Keenan to retire, and in his place he was elected Branch Secretary on 2 May 1991.

After the putsch came the purge.  Without much false sentimentality Bruce Wilson removed some officials – ‘dead wood’  – and replaced them with others he trusted.

Bruce Wilson’s election as State Secretary meant that he automatically became a Vice-President on the national executive.  That left a vacancy on the national executive, and Ralph Blewitt was elected to fill it.  Ralph Blewitt also became Assistant Secretary of the West Australian branch. 

The Commissioner exercises precision in his choice of words.  He described Wilson's manoeuverings against Keenan as a "putsch'.   Putsch is a German word meaning "a secrectly plotted and suddenly executed attempt to overthrow a government".  Many definitions include the descriptor "violent" - the Munich Beer Hall Putsch is a case in point.   Gillard was a partner with Wilson as he executed a Putsch against the AWU leadership.  She says she gave legal advice to Wilson, it can only have been personally rather than as a low level organiser at the AWU - but for what price?   What obligations did she incurr?

Having putsched Keenan out with Ms Gillard's help, Wilson went to work on purging other dissenters.

While Slater and Gordon didn't act for the AWU WA branch until September, 1991, On 21 August Ms Gillard gave this detailed legal advice to Wilson about the process of making favoured appointments within the rules.  

During the 6 months April to September 1991 Gillard demonstrate a preparedness to work outside the interests of the AWU (ie its elected leadership team) to help Wilson achieve his personal ambitions.   There is the sense of close partnership between them, with the driving force in that partnership being Wilson's personal interests rather than the interests of the AWU.

Over those 6 months Ms Gillard clearly became very well versed in the AWU's rules, her references to them in her legal work are exquisitely detailed.   She would have known that Wilson, as State Secretary could only act with directions from the Executive and with the acquiescence of the State President:

Sec at least exec

Exec not sec

President and secretary to sign

That last rule shows the sanctity with which the union's name was treated.   It wasn't something to be shared around - more of that later.

The rules show it's the Executive that gives the Secretary his power and authority.   Wilson wanted one that was rubber-stamp supportive.   Even after his move to Melbourne Wilson continued to manoeuvre that Executive into shape.

On 18 February 1993 Ralph Blewitt became WA State Secretary during an Executive meeting.  The minutes of that meeting record the first signs of trouble for Mick Baker.



By June 1993 there were many more upset AWU staffers than just Mick Baker.  With Wilson and his charisma in Melbourne, Ralph was struggling to implement the new agenda and the natives were revolting.

Glen Ivory was then the AWU WA State President.   His relationship with Ralph Blewitt was as between a company's chairman and the CEO.   The President is there for support and advice.

On 16 June 1993 Ivory arranged for a meeting of unhappy officials with their Secretary, Ralph.   HR managers today might call it a focus group or perhaps an intervention.  In the AWU it was called a "delegation" and the delegation went prepared.  Ralph apparently got it with both barrels.

The first action after the delegation was not a soft and fluffy EEO course or counselling for Ralph.   Wilson had one request  - that Glen Ivory document his discussions with staff in order to identify the dissenters.   Ivory put it into the form of a statement dated the next day 17 June, 1993.

(I have spoken with Ralph privately about this note and he has given me the go ahead to publish it.  He says it's pretty accurate and that he was never cut out to be a State Secretary, he only ever did what Wilson told him to do - and without the "young pretender"'s charisma he apparently executed poorly.)

Ivory 1993

Ivory 2

Ivory 3

Ivory 4

Ivory last page

That statement was produced by Ralph Blewitt to the WA Industrial Relations Court as an Exhibit after Wilson had instructed Ivory to put it down in writing.  

Mick Baker's fate was sealed from the moment Wilson read it.

One month later Ralph received instructions from Wilson that Baker was going to be "putsched" out of his job.   The letter falsely suggests Blewitt made the decision that Baker's services were no longer required.  But as the industrial relations commission heard, the decision to sack Baker was made by Wilson and it was Wilson who instructed Gillard to find a way to do it.   Here is the letter Ms Gillard prepared on Wilson's instructions. 

19 July, 1993 - Mick Baker is sacked.

Baker letter


Gina Rinehart working, employing and keeping agricultural assets in Australian hands.

Gina Rinehart could so easily pull up stumps and live the life of Riley.  Sometimes it must be tempting to tell Australia to stick it - particularly given the disdain and special contempt spewed her way by the ABC and Fairfax (whose employees' salaries she funds).

I admire her work - employing people, building wealth and paying somewhere north of $500M every year in tax to the Australian Government - without offshore tax havens.

The Abbott prejudice

I have spent a bit of time with Tony Abbott, I know him reasonably well.   I think he's a decent bloke who gets his kicks out of service to others.   My Aunt taught him at the Jesuit school St Aloysius - I'm told he was like that as a boy.      One feature I don't see in him is paranoia or  Machiavellian plotting against competitors that so many politicians seem to be driven by.

I have an opinion about him because I know him and I follow what he's up to - so I'm regularly surprised to hear reasonable people who don't know him rip into him as a misogynist, liar, incompetent, old-fashioned etc etc etc.

I always ask why they feel that way.   Very rarely I'll hear a personal story or observation as to how that person arrived at that opinion.   But a considered, informed opinion is rare - I almost always hear the well-used ALP slogans delivered with that insider smirk and a bit of a superior, informed laugh.   You know, the Abbott thing - you know what he's like?

Many of you have sent me notes about this story by Paula Matthewson published on the ABC's website The Drum yesterday.

Ministry reshuffle built on paranoia, not progress

Tony Abbott's ministry reshuffle may appear to be a reset in preparation for 2015, but in reality it is more about the PM's paranoia and tenuous leadership than it is about his Government's rejuvenation, writes Paula Matthewson.

Prime ministers usually reshuffle their ministry to provide a fresh aspect on their government while hopefully also evoking a sense of stability through the regeneration. But with one or two exceptions, like the promotion of Ley, Abbott's reshuffle is characterised by concessions to antagonists, throwing competitors in the deep end, and leaving the deadwood to atrophy.

Abbott's reshuffle may superficially appear to be a reset in preparation for 2015, but in reality it is more about the PM's paranoia and tenuous leadership than it is about his Government's rejuvenation.

Paula Matthewson is a freelance communications adviser and corporate writer. She was media advisor to John Howard in the early 1990s. She tweets and blogs as @Drag0nista. View her full profile here.

You can find Paula's bio here.  This week Paula's into the Prime Minister for changing his Cabinet.   Just 7 days ago she was into him for not doing it:

Does the ministry 'stability' border on stagnation?

In an effort to display stability Tony Abbott has resisted calls to reshuffle his cabinet, but that has meant keeping some deadwood from the Howard years and stifling ambitious backbenchers, writes Paula Matthewson.

During the Howard government years, the prime minister often took the opportunity to refresh his ministry by reshuffling it just before or after the Christmas break.

When done before Christmas, the reshuffle gave new ministers time to familiarise themselves with their portfolios and reduce the chance of newbie mistakes once the Parliament resumed in February.

Reshuffles conducted in January helped give a sense of renewal without upheaval, using the dawning of the new year as a way of drawing a line under the previous year and looking ahead to new and fresh perspectives and approaches.

This of course presupposes that Abbott is still in a position to do so. It's too early to gauge the true extent of combined party room angst over Peta Credlin's management style and the unshuffled ministry. Ultimately, it will be a different concern - that over the Government's poor electoral standing - that leads to the most destructive type of party room unrest.

Tony Abbott generally resists pushing himself into the limelight.   He doesn't do as many press conferences as did the Rudd/Gillard/Rudd "team" and he tends to ignore campaigns against him rather than taking on the people behind them.

Paula's two articles, just 7 days apart, are a good insight into the problem Tony Abbott faces.   At the ABC and other leftest refuges "something I think is good" immediately becomes "something I think is bad" when I find out it was done by Tony Abbott.

A Labor mate of mine says the problem for Labor is that the more you get to know Tony Abbott the more you like him - whereas the more you get to know Bill Shorten........

Tony Abbott would do a lot better if more people knew him.


The 2UE/2GB merger and how it may affect the news you hear - from Jason Morrison

Jason Morrison is one of the great newsmen of our generation - have a look at this background.


2UE & 2GB have been solid commercial rivals for close to 90yrs. As of today, two of Australia's oldest radio stations have the same ownership. Go back a decade or two and what’s happened today would be as unimaginable as Channels 7 and 9 merging or Parramatta and Manly becoming the same team – but this is a move for survival.

Both stations need to reduce costs to maintain profitability, as the share of advertising revenue going to radio is not keeping pace with rising operational expenses.

That said, I think people who think 2UE will cease being a talk station are misreading the market.

Despite all that the management has done to the station over the years, 2UE’s share of 4 or 5% listenership likes what’s there – and if 2UE wasn’t a talk station, they may go elsewhere and probably not to 2GB. It’s too great a risk for to many listeners for the new partnership.

2UE has a cumulative audience across the week of about 270k versus 2GB’s 520k. That’s a stack of people to risk let going elsewhere.

My prediction; 2UE will remain a low-cost but better-managed talk station.

The best hope will be the end of the era of constant changes to the 2UE line-up. Talk radio is about familiar voices.

I’ve felt for UE programme directors Peter Brennan and Clinton Maynard who’ve had to watch as decisions were made ‘around them’ by consultants and so-called experts, often to the detriment of the station.

Even in the 3 years that I worked at the station, 14 changes to the primetime line-up were made – versus 2GB, which had made only one. 
By contrast, 2UE’s weekend stars, George Moore and Paul B Kidd have been doing their great show for over a decade - largely untouched – and they are constantly number 1 in town. Not bad for two blokes on the number 7 station. There’s definitely something to that!

Sadly, the newsrooms again will probably end up feeling the impact of the merger the most. Radio newsrooms everywhere are under-resourced and the staff flog their guts out to cover the happenings in the country’s largest and wildest city.

Some sales and administration functions of the stations will probably be combined and that too will cause job losses.

Another prediction; 2CH will have to be sold but will continue to be operated by MRN but ‘controlled’ (as defined by legislation) by someone other than the present ownership – perhaps a friend of the present owner.

2CH has successfully ticked along as a budget operation for years. For much of the 90s (pre-Alan Jones) at 2GB, it was 2CH that actually propped-up the rest of the company financially.

2CH’s biggest fan is John Singleton who has always been very fond and supportive of the station.

22 years ago when 2MMM and 2DAY FM in Sydney merged, it stunned the radio industry. “How could two bitter rivals co-exist?” people asked. And, they’d only been up against each other for a decade!

Strange days indeed.



Fairfax announces it will merge with (read acquire) 2GB/Alan Jones/Macquarie Radio. Stand by for the "improvements".

University business schools will be writing up the case studies out of this merger for years. 

There might be two groups of people less likely to get on in business than Singo/Tate/Jones/2GB and Fairfax - but they'd take a bit of finding.

Singo's done a great deal, so has Alan Jones (that is it's a great deal for Singo and Alan).  

But poor fella 2GB when the Fairfax gurus start getting their PAs to "diarise a familiarisation visit" to help Alan and Ben improve and modernise their message.

Singo got it right first time when he said this about Fairfax leadership on 25 February 2014.

Sydney radio tsar John Singleton unleashed yesterday on his one-time would-be business partners at Fairfax Media, calling its chairman a “pompous pr..k” and the CEO an “idiot”.

Here's a summary of Singo's critique of the Fairfax leadership team.  I think the reasonable man, fully informed about the wonders of Hywood et al would be left with no alternative but to agree.

Singo sptray

Singleton suggested Fairfax chairman Roger Corbett should be president of the “Avoca bowling club” and claimed CEO Greg Hywood was a “third-rater” who had phoned him “almost in tears” over the money in consultancy fees down the drain when the talks fell over.

Singleton accused Mr Corbett of professing Christian values while buying into pubs and poker machines as CEO of Woolworths.

“I don’t profess Christianity and I don’t bash the bible. Nor do I ring people on Sunday nights sounding drunk outta my head. If he doesn’t drink, he certainly does a really good impression late on Sunday night. Let’s assume he was just tired. I am not making any allegations there,” Singleton said on air.

“If you are a proper chairman, a decent human being, not a precocious, pretentious pr..k — I apologise for that word — precocious, pretentious little whipper snapper like Roger Corbett.

“Roger wants to be chairman. Give the little bloke his chairmanship … he’s only got a year to go and then he can be president of the Avoca bowling club or rotary or something, some self-important, pompous, puffed-up job for him.

Of Mr Hywood he said: “He doesn’t know what he’s doing so he just hires consultants to tell him what to do. Obviously he does nothing except do what they tell him.”


Grab a drink and enjoy some afternoon Alan and Singo, very much on form here.   Then have a read of the Fairfax announcement to the ASX below.

Rule number one in the Mergers and Acquisitions caper is that there are no mergers, only acquisitions.   You are either acquired or the acquirers - someone is always on top, the shareholding is a pretty good clue.   In this case the genii at Fairfax get to prod and poke 2GB in order to synergise the rationalisation of the continuous improvement re-engineering focus group consultancy initiative or something.  And Singo and Alan will be nicely cashed up and laughing all the way to the Avoca Bowls Club for lunch with the Chairman.

Fairfax radio deal Fairfax radio two Fairfax radio 3

Fairfax radio 4 Fairfax radio 5 Fairfax radio 6

Audio of the actual police radio transmissions as the horror of the Cairns multiple murders unfolded

The young bloke from the Cairns van on that day had the awful job of reporting the result of the job his unit had been given.   The way the job was given out would give those coppers no idea of what they'd confront, "attend at an address after a report of possible stab wounds".

"The person here in front of me is the one who did it (allegedly), she's currently under arrest.   Can confirm multiple 501s (code for sudden death), at least 6 deceased people......."

The professionalism, speed, early recognition of the nature of the job and deployment of appropriate resources within minutes is a credit to the Queensland Police.   

Spare a thought for those poor buggers who have to live with the images of those kids in their heads forever.

Thanks to the website for these Queensland Police radio codes.

Qld codes

NSW Judicial Commission on "Breach of Trust" theft like Thomson's - "A fulltime custodial sentence will be imposed".

Remember when Craig Thomson's lawyer got a heap of charges knocked out because the alleged criminal acts took place interstate?

This link explains the extra-territorial provisions of the Crimes Act in Victoria that would have allowed Thomson to have those interstate matters dealt with.   He successfully objected to that happening - that had two effects.  

  1. It reduced the number of charges and dollar value involved in the matter before the Victorian courts.
  2. It left a heap of unresolved criminal matters that may need to be dealt with in places other than Victoria.

That must have seemed like such a great idea at the time.

Dr John Lourens prepared this table setting out the location of each alleged criminal act (the total number of charges was increased to 225 after this table was produced).

Location charges

On the face of it, that may be 64 oustanding matters to be dealt with in NSW.

The sentencing guidelines here are pretty clear - here's the link to the NSW Judicial Commission and its advice regarding sentencing for various categories of fraud and theft.

5. Breach of trust

Breach of trust can be relevant where it is an element of the offence (for example, s 172 Crimes Act 1900), or as a key feature of aggravation: R v Pont (2000) 121 A Crim R 302 at [43]–[44], R v Murtaza [2001] NSWCCA 336 at [15]. The fact that the offence involved a breach of trust is an aggravating factor to be taken into account under s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999: see Aggravating factors at [19-990] below.

What is a breach of trust? The breach of trust must be in direct contravention of what the offender was engaged to do: R v Stanbouli (2003) 141 A Crim R 531 at [35]. Hulme J said at [34]:

“The cases where, traditionally, breach of trust has been regarded as exacerbating criminality are where it is the victim of the offence who has imposed that trust — an employer defrauded by his employee, a solicitor who appropriates trust funds to his own use — or where the criminality involves a breach of that which the offender was engaged or undertook to do, e.g. a teacher or baby-sitter who indecently deals with the subject of his or her charge.”

General statements about breach of trust

In cases of serious white collar crime involving a breach of trust by a solicitor or another professional person standing in a similar position of trust, a full-time custodial sentence will be imposed, except in cases where there is some unusual feature: R v Boland (unrep, 13/10/98, NSWCCA); R v Pantano (1990) 49 A Crim R 328. Those placed in a special position of trust by the law and the community, such as solicitors and other professionals, who abuse that trust, call their profession into question and merit sentences calculated to ensure that other professionals will be left in no doubt that serious consequences will follow: Pont at [47].

Where the breach of trust is an element of the offence, it is not to be taken into account additionally as an aggravating factor: R v Martin [2005] NSWCCA 190 at [40] and see Aggravating factors at [19-990] below.

In R v Pantano (1990) 49 A Crim R 328, Wood J (with whom Carruthers J agreed) said at 330:

“… those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences.”

Legal practitioners

In the two-judge bench decision of Marvin v R (unrep, 1/11/95, NSWCCA), the offender, a solicitor, was convicted of forty-one counts of fraudulent misappropriation of funds contrary to s 178A Crimes Act 1900, and two counts of making and the using of a false instrument contrary to ss 300(1) and 300(2) Crimes Act 1900. Sully J said:

“Any solicitor who misappropriates clients’ funds for whatever reason, great or small, arguably good or arguably bad, commits a serious offence, not only in terms of contravening the relevant particular provisions of the Crimes Act, but in terms of the betrayal of public trust and confidence which such behaviour represents. It is appropriate to say simply that that must always be regarded by the Courts, of all institutions, as serious conduct meriting in any but the most exceptional cases, a custodial sentence.”

Marvin was cited with approval in R v Houlton (2000) 115 A Crim R 104 at [25]. The court in R v Smith (2000) 114 A Crim R 8 at [16] endorsed the sentencing judge’s observation that “It is necessary for the court to impose significant penalties as a lesson to other legal professionals … in a position of trust [so] that this kind of misconduct will not be tolerated”.

In Houlton, the respondent, a solicitor, pleaded guilty to five counts of fraudulent misappropriation totalling $347,000 under s 178A Crimes Act 1900, including 80 offences on a Form 1. His appeal against the three-year period detention sentence was dismissed. R v Hawkins (1989) 45 A Crim R 430 at 436 involved misappropriation of $6.6 million from clients and a company by a solicitor over a three and a half year period. Following a Crown appeal, the offender was resentenced to ten years with a balance of term of five years. Assi v R [2006] NSWCCA 257 involved fraudulent misappropriation and obtaining money by deception by a solicitor: ss 178A, 178BA. Following an appeal the offender was sentenced to a term of sentence of seven years and six months with a non-parole period of four years and six months.

The fact that the offender will be struck off the roll of solicitors can be to be taken into account as a matter of extra-curial punishment: Oudomvilay v R [2006] NSWCCA 275 at [19].

Senior employees

Positions of seniority in a company make it easier to cover tracks and discourage scrutiny and detection. The obligation to uphold the trust of employers in their employees and to deter breaches of such trust by senior employees means that the courts frequently respond to offences committed by senior employees with the imposition of a custodial sentence: R v Scott (unrep, 7/11/91, NSWCCA). This case involved a senior employee but a very small amount of money and a custodial sentence was imposed on the offender, however on appeal a sentence of periodic detention was imposed to preserve parity with the sentence imposed on the offender’s wife.

The court in R v Pantano (1990) 49 A Crim R 328 at 338 explained the different positions of employees and senior executives in sentencing for fraud offences:

“Although it is difficult to generalise and each case must be taken on its merits, the cases in which a subordinate employee guilty of serious dishonesty should receive a sentence of the same order as a senior executive are likely to be relatively few. This is because of the control exercised by the senior executive, his greater ability to defer and perhaps avoid detection, his grosser breach of trust by reason of has senior position, his greater duties and greater responsibility.”

County Court Judge finds DET SGTJohn Tyquin's Thomson investigation was difficult, comprehensive, impressive, and carried out with an eye to detail

There's been quite a bit of commentary in bars and the press about the way the Craig Thomson charges read, leading to the Appeal Court dropping major fraud charges against Thomson on purely technical grounds.

The Judge said this:

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. 

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.

But that is in relation to the advice given by Victoria's DPP.

She held special praise for Detective Sergeant John Tyquin and his crew at the Victoria Police Fraud and Extortion Squad.

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.

I agree with Her Honour about John Tyquin, I dealt with him during the case where I was a witness.  The Victoria Police Fraud and Extortion Squad has a hard won reputation for thoroughly prepared briefs produced after comprehensive investigations.

They should be proud of their work in the Thomson matter.

Craig Thomson seems to have received a low-range penalty - the DPP will have plenty to appeal

On 11 December this year the Chief Justice of the Supreme Court of Victoria sentenced a lawyer to 12 years gaol for breach of trust offences.

The way Chief Judge Marilyn Warren AC QC set out her reasons for judgement gave me much-needed hope.  Rereading them this morning has given me renewed confidence in the way our system is supposed to operate.  I was sufficienly moved to write to Her Honour on 11 December, 2014.

Your Honour,
I was moved by your ideals and the courage that accompanied your convictions as you sentenced the prisoner LINACRE this week after his series of fraud offences.
It must be distasteful and unpleasant work to turn your mind to what went on in his.   I imagine it's also a little solitary and that elevation to your office distances you somewhat from the support and feedback many of us enjoy in our jobs.
Having been so moved I thought I'd let you know how highly I thought of your work Your Honour.   If writing thus breaches any of your Court's protocols I'd hope that your Associate might simply return this note - but if you are able properly to read it I wanted to say thank you to you ma'am.
I'm in no way connected to the matter, I'm a latter-day journalist (publishing to the internet) and I wrote a small article about your decision here.  
Thank you for your service Your Honour.
Michael Smith

Compare and contrast that gaol sentence to the fine that finalised Craig Thomson's case.

The Victorian Sentencing Manual includes these sentencing guidelines for theft and dishonesty offences involving a breach of trust. - Sentencing guidelines for theft and deception offences


General guidelines - sentencing with respect to theft offences varies widely.

The cases indicate that offences committed in breach of trust, involving large quantities, over an extended period of time will normally attract a significant term of imprisonment.See the cases identified as ‘High value offending’ below. In De Stefano [2003] VSC 68, a case in which an accountant stole a total of $8.6 million from various individuals and companies, in sentencing the offender Kellam J said at [63]:

The breach of trust in which you have engaged is, as I have stated, gross, and involves large sums of money which were stolen over a long period of time. Those members of our society who hold moneys on trust on behalf of others and particularly solicitors, accountants and financial advisers, must understand that if they breach the trust of their clients, severe consequences will follow. The damage to individual members of our community by theft such as yours is extreme. Members of the community who were entitled to rely upon you for their future independence, dignity and comfort, were denied those rights by reason of your dishonesty. There is no alternative, as indeed is conceded by your Counsel, other than the imposition of a term of imprisonment.

De Stefanowas sentenced to a total effective sentence of 10 years, with a non-parole period of 7 years.


Thomson had a top-end position of trust as head of a 60,000 strong trade union, a member-based organisation with all its special status at law.   He stole members money.   The sentencing guidelines say:

General deterrence significant

When sentencing offenders of special status, the sentencing purpose of general deterrence is prominent. In Pangallo (1991) 56 A Crim R 441, Lee CJ at CL stated at 443:

The guidelines go on a bit and you can read them here.

But it's important to note that Thomson was also a lawyer.   And in his role as head of the HSU he dealt daily with matters of law.  He gained his law degree as part of his HSU role where officials often appear at court and AIRC hearings.   He would daily give advice and provide representation for HSU members - because he was a qualified lawyer his status was elevated.   His advice was given more legal "weight" and thus the trust and responsibilities in the relationship between Thomson and his members was also elevated.

The judge mentioned his law degree once in reference to his understanding of the law and his dishonesty - but not with regard to his sentence:

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. 

The sentencing guidelines tell us this:

In South AustralianPolice v John (1995) 79 A Crim R 510 at 511, King CJ stressed the gravity of crimes of dishonesty committed by legal practitioners and the need for deterrent penalties:

This court has stressed on many occasions in the past the gravity of offences involving dishonesty committed in the course of legal professional practice.

As an example, I cite Hunter (1984) 36 SASR 101, in which I said at 102:

‘The fact that a trustee is a solicitor, a member of a profession on the integrity of the members of which the public is entitled to rely unreservedly, has always been held by courts to be a grave matter of aggravation of a crime of dishonesty committed in the course of professional practice. There is the further circumstance of aggravation that the course of criminal conduct continued over a long period of years until finally detected.’

Those remarks apply to this case. It is essential that the courts impose penalties for crimes of dishonesty committed in the course of legal practice which will operate as a deterrent to other practitioners who might be tempted, whether by greed or some form of human weakness, to commit similar crimes.

The maintenance of the standards of integrity, which both the court and the public look for in the legal profession demand no less and, indeed, the public demand no less.

There is a degree of public scandal involved in the sight of a legal practitioner who abuses his trust for his own advantage going free.

In Ryan 7/4/1986 CCA Vic, the Court referred to the special position of solicitors guilty of offences of dishonesty in relation to clients or their funds. Young CJ said:

He is not only in a position of trust but he is held out by the Court as a person of skill and ability and as a person who can be trusted. That is the consequence of his admission to practise as a barrister and solicitor of the Court. Such a person must, in my view, inevitably suffer severe punishment for offences which demonstrate that he is not to be trusted. Offences which demonstrate that a solicitor is not to be trusted bring the whole profession of the law into disrepute, and a solicitor guilty of such offences cannot expect to be treated leniently. This, however, is not to say that there is an inflexible rule that a solicitor must receive a custodial sentence even for offences which demonstrate that he is not to be trusted.

In the same case Tadgell J addressed, in more detail, community expectations about the sentencing of such legal practitioners:

The community, of course, expects, as it is entitled to expect, that persons whom this Court admits to practise as barristers and solicitors are persons in whom the community can place a very high degree of trust. This Court must, therefore, be and be seen to be fastidious in the steps it takes with a view to ensuring the maintenance of the highest standards by members of the profession. In dealing with a solicitor who has acted falsely to his oath, and betrayed his trust in his capacity of a solicitor, the Court is therefore faced with a double duty. It is required not only to uphold the criminal law; it is required to do what it can to maintain the honour of the legal profession. This is a task of impressive difficulty when the solicitor’s conduct has not only made an irremediable dent in his own reputation, but has necessarily imperilled the integrity of his chosen profession. An associated difficulty that besets the Court is that it must be seen to deal with a member of its own profession no more leniently than with a comparably dishonest layman. A true comparison, of course, between a deceitful lawyer and a deceitful layman is not easy to make because the layman would ordinarily not have made his oath to demean himself honourably.

In striving to achieve a publicly-acceptable balance of the various sentencing factors involved it would be easy, perhaps often permissible, for the Court to start with the premise that only a sentence of a most condign kind would suffice. I agree, however, with what the learned Chief Justice has said, that a custodial sentence is not always necessary or appropriate when a Court deals with a defaulting solicitor.

In Vassis 26/7/1985 CCA Vic, the Court addressed the effect the breach of trust factor had upon offences committed by legal practitioners as compared with such offences committed by other persons:

The heinousness of particular charges of the related offences depends upon the relationship, if any, between the accused and his victim, and the circumstances giving rise to the offences. Thus an alteration of a figure on a negotiable instrument, causing it on its face to be for an amount in excess of the amount intended by the drawer, might constitute a more serious offence of forgery if committed by a bank clerk than perhaps by a person who has come upon the instrument by chance. Again, the offences might assume a more serious character where the accused person forges the signature of the owner of a valuable document which has been left with the accused for safekeeping, and the accused uses both the forged instrument and the entrusted document to procure a monetary advantage for himself. Circumstances falling within the most grave degree of these related offences include the conduct of a solicitor who, by forging his client’s signature and dishonestly using the forged document together with his client’s title deeds entrusted to him for safekeeping, procures money for his own purposes. By doing so the solicitor betrays the trust reposed in him by his client. Nothing could be more calculated to undermine public confidence in the legal profession than knowledge that valuable documents might be dealt with in such a deceitful way.

Further examples of the manner in which breaches of trust by legal practitioners are dealt with by the courts are provided in: Nolan (1987) 34 A Crim R 19.; Smith (2000) 114 A Crim R 8; Coukoulis (2003) 7 VR 45

The guidelines also tell us that special status and fall from grace should not be mitigating circumstances, particularly for former Members of Parliament. - Offenders not entitled to mitigation by elevated status

In Jackson & Hakim (1988) 33 A Crim R 413, Lee J (with whom Finlay J agreed) stated, at 436-437:

But as was pointed out in Farquhar (unreported, Court of Criminal Appeal, 29 May 1985) the good character of a person holding high office who commits a crime relating to the performance of his office cannot form a basis for the same mitigation of sentence as in the case of an ordinary citizen committing crime, for the public is entitled to expect that those who are placed in high office will necessarily be persons whose character makes them fit to hold that office. Furthermore, whilst one may indeed sympathise with the plight in which the respondent finds himself because of his misdoings it would, in my view, be quite wrong to take into account as a factor in his favour that he was a Member of Parliament and a Minister of the Crown. The holding of such office may indeed bring distinction to him personally but, from the point of view of sentence, it is not a matter which can advance the respondent any more than if he had been some hardworking person carrying on a menial occupation. Members of Parliament and Ministers of the Crown are well paid and receive many privileges and advantages denied ordinary citizens.

Thomson's lawyer submitted that losing his career and the fall from grace should be mitigating factors.

He also told the court that Thomson had given him instructions like this in mitigation, this is from the transcript of Her Honour's sentencing remarks:

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. 

If Craig Thomson and his family have spent $400,000 in legal fees - that would be in addition to the $380,000 the Labor Party paid on his behalf.   That is a massive amount of money, in addition The Craig Thomson Legal Defence Fund also raised money to pay his legal bills.

So taking all of that into account, this is what Her Honour said:

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. 

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. 

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.

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. 

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.  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.

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. 

I take in to account in his favour the compensation order made in the sum of $5650.      

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.

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.

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 him, to denounce his behaviour and conduct, in particular the breach of trust, is a monetary penalty. 

Thomson has 3 months to pay, the penalty is gaol if he doesn't (although the orders aren't clear on how long).

1             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.

2             MR JAMES:  As Your Honour pleases.

3             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 ‑ ‑ ‑ 

4             MR JAMES:  We'd ask for that three months.

5             HER HONOUR:  Yes.

6             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 ‑ ‑ ‑ 

7             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.

8             MR JAMES:  And particularly, he's got to know ‑ ‑ ‑ 

9             HER HONOUR:  And ‑ ‑ ‑ 

10          MR JAMES:  ‑ ‑ ‑ that unless it is paid within the time allowed or an extension allowed by the court, the sanction is gaol.

11          HER HONOUR:  Exactly.

12          MR JAMES:  Thank you, Your Honour.

13          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.


The DPP has 28 days to appeal and I think it should.