Abdullah v The State of Western Australia
[2011] WASCA 21
•28 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ABDULLAH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 21
CORAM: McLURE P
NEWNES JA
MAZZA J
HEARD: 14 DECEMBER 2010
DELIVERED : 17 DECEMBER 2010
PUBLISHED : 28 JANUARY 2011
FILE NO/S: CACR 158 of 2010
BETWEEN: JASON KENNETH ABDULLAH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND BUN 44 of 2010
Catchwords:
Criminal law - Appeal against sentence - Whether sentence of immediate imprisonment manifestly excessive - Turns on own facts
Legislation:
Criminal Code (WA), s 378, s 563A
Result:
Appeal allowed
Sentence set aside
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms S H Linton
Solicitors:
Appellant: Max Owens & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
McLURE P: This is an appeal against sentence. The appellant was convicted on his own fast‑track plea of guilty of two counts of stealing ($1,900 and $60,000 respectively) contrary to s 378 of the Criminal Code (WA) (Code) and one count of dealing with property (a motor vehicle), the proceeds of an offence of stealing contrary to s 563A of the Code.
On 26 July 2010 Sweeney DCJ sentenced the appellant to 4 months' imprisonment for count 1, 14 months' imprisonment for count 2 and 12 months' imprisonment for count 3. She ordered that the sentences be served concurrently resulting in a total effective sentence of 14 months' imprisonment.
On 17 December 2010, the court made orders in the appeal. It allowed the appeal, set aside the sentences imposed on the appellant and in lieu thereof sentenced him to 3 months' imprisonment for count 1, 10 months' imprisonment for count 2 and 7 months' imprisonment for count 3. The court ordered that the sentences be served concurrently (resulting in a total effective sentence of 10 months' imprisonment) and that they be suspended for 10 months on condition that there be a programme requirement and a supervision requirement. These are my reasons for joining in the orders.
The facts of the offending are as follows. On 7 February 2008 a staff member of Chequecash Pty Ltd, trading as Financial Express, conducted an electronic fund transfer of the sum of $1,900 from a business account, intending that it be deposited into a nominated shareholder's account. The staff member made an error in recording the transferee's account details and mistakenly transferred the funds to the appellant's bank account. On 8 February 2008, the appellant became aware of the mistaken transfer of funds to his account. He did not contact his bank or make any attempt to ascertain where the funds had come from or who they belonged to. Over the course of 10 days between 8 February and 18 February 2008, the offender conducted five transactions which resulted in $1,900 being withdrawn from his account and used by him. These are the facts relating to count 1.
On 5 May 2008 a director of Financial Express conducted an electronic fund transfer of the sum of $60,000 from the same business account as in count 1, intending that it be deposited into a nominated shareholder's account. The director also made an error in recording the transferee's account details and mistakenly transferred the funds to the appellant's bank account. On 6 May 2008 the appellant discovered the unexpected deposit into his account. Once again, he did not contact the bank to report the occurrence nor make any attempt to ascertain where the funds came from or who they belonged to.
Over the course of nearly three months between 6 May 2008 and 1 August 2008, the offender conducted a total of 114 transactions which resulted in the $60,000 being withdrawn from his account. This included a withdrawal of $22,690 by bank cheque on 7 May 2008 which he used to purchase a second‑hand motor vehicle (the vehicle). These are the facts relating to count 2.
On an unstated date, Financial Express wrote to the appellant requesting immediate repayment of the funds. On 28 October 2008 a director of Financial Express spoke to the appellant by telephone and advised him of the two mistaken electronic transfer of funds and made a request for immediate repayment.
In relation to count 3, on 28 October 2008 the offender went to a car dealer and sold the vehicle for $13,000. In the following days, the appellant received a cheque for that amount and banked it into a newly opened account with another bank. The appellant then spent those funds.
The authors of the pre‑sentence and psychological report note the appellant's claim that he had not grasped the seriousness of what he had done and was under the impression he could spend the money and debt collectors could chase it up later. I infer the appellant held that (mistaken) view because he bore no responsibility for the transfer of funds into his account.
The appellant was aged 30 when he committed the offences. He had a difficult childhood marred by the suicide of his father when the appellant was 6. He had a long history of generalised anxiety, panic disorder and depression for which he was medicated. As a result of his mental health issues, the appellant had difficulty maintaining employment and was in financial difficulty at the time of the offending. He used the stolen money to buy things for himself, his friends and his family. At the time of sentencing, the appellant was living with his mother and receiving training from a disability employment organisation with the aim of enabling him to work full‑time.
The appellant had a history of heavy cannabis and alcohol use and a short criminal record. It consisted of five counts of fraud and five counts of stealing, which offences were committed in 1998 and for which he received a community based order which he breached.
The appellant claimed that each sentence of immediate imprisonment was manifestly excessive (ground 1) and that the sentencing judge erred in determining that there was a need for general deterrence (ground 2).
It is apparent from the sentencing judge's reasons that she placed a heavy emphasis on the need for general deterrence. She said:
With internet transfers being conducted in their thousands every day with the potential for human error, it is important that this court not only impose a sentence which will deter you from such dishonesty in the future and punish you for what you have done, but it also sends a message to the community that opportunistic theft of this sort will be met with serious punishment (AB 65 ‑ 67).
She concluded that the requirements of deterrence and the need for punishment overwhelmed the matters in mitigation, requiring the term to be immediately served (AB 67).
There are a number of types of offences for which a term of immediate imprisonment is generally the only appropriate sentencing option. That will usually be the case where general deterrence is a dominant sentencing objective. The offences committed by the appellant are not of such a character. In particular, offending of this type does not ordinarily require that the need for general deterrence be at the expense of matters personal to the offender. Moreover, there was no material before the sentencing judge to reasonably conclude that there has been a significant increase in the incidence of mistaken payments and dishonest dealings therewith.
The appellant's culpability is ameliorated by a number of matters. He was the entirely innocent recipient of funds into his bank account. He thought that if he used the money, he would be obliged to pay it back (knowing he did not have the funds to do so) but lacked insight into the true significance and seriousness of his conduct. He was also vulnerable, financially and otherwise, as a result of his mental health issues.
In addition, the appellant cooperated with police, made a fast‑track plea of guilty and took positive steps towards rehabilitation by giving up cannabis and taking counselling for his anxiety. Having regard to all relevant matters, it was not open to the sentencing judge to conclude that a term of immediate imprisonment was the only appropriate sentencing option. Thus, the imposition of terms of immediate imprisonment was manifestly excessive.
In re‑sentencing the appellant, the court had regard to the fact that the appellant had been in custody since 26 July 2010. The individual and total sentences imposed by this court reflect a reduction for the time already spent in custody. If the appellant commits another offence within the period of suspension or fails to comply with any relevant condition he may become liable to serve the total effective sentence of 10 months' imprisonment.
NEWNES JA: I agree with the reasons of McLure P.
MAZZA J: I agree with McLure P.
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