Anderson v The Queen - [1999] WASCA 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ANDERSON -v- THE QUEEN [1999] WASCA 291

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J

HEARD: 2 DECEMBER 1999

DELIVERED : 2 DECEMBER 1999

PUBLISHED : 15 DECEMBER 1999

FILE NO/S: CCA 237 of 1999

BETWEEN: MICHAEL WAYNE ANDERSON
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Offence of stealing committed during the term of suspension of earlier sentence of three years and six months imposed for similar offence of stealing - Offender ordered to serve two years of suspended sentence - Cumulative sentence of 12 months imposed for second offence - Concession by Crown that sentences should have been concurrent under Sentencing Act 1995 s 80(6) accepted - Previous decision of Court of Criminal Appeal to suspend sentence as act of mercy on account of offender's son suffering from leukaemia - Refusal by Court to extend further indulgence to appellant by further suspension of sentence or imposition of a non-custodial sentence

Legislation:

Sentencing Act 1995 (WA), s 80

Result:

Extension of time to apply for leave to appeal against sentence granted
Leave to appeal granted
Appeal allowed to the extent of ordering that the two years of the suspended term of imprisonment ordered to be served be served concurrently with the sentence of 12 months' imprisonment imposed in respect of the offence of stealing which constituted the breach of the suspended term

Representation:

Counsel:

Applicant: Ms S J Crisp
Respondent: Mr R E Cock QC & Ms J Andretich

Solicitors:

Applicant: Fordhams
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Anderson v The Queen, unreported; CCA SCt of WA; Library No 960752; 17 March 1997
Burns (1997) 71 A Crim R 450
Day (1998) 100 A Crim R 275
R v GP (1997) 18 WAR 196
R v Liddington (1994) 18 WAR 394

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 2 December 1999 the Court ordered that leave to appeal be granted and the appeal allowed to the extent of a concession made by the Crown, but otherwise dismissed the appeal.
On 1 November 1999 the appellant pleaded guilty in the Supreme Court to one count of stealing, namely, that between 5 December 1997 and 1 April 1998 he stole $8,669.58, the property of the Bank of Western Australia trading as BankWest. On the same date the appellant pleaded guilty to breaching the suspended sentence imposed upon him by the Court of Criminal Appeal on 12 December 1996.
At the time the offence of stealing was committed the appellant had been sentenced in the District Court on 8 October 1996 to terms of imprisonment totalling three years and six months with eligibility for parole in respect of 27 counts of fraud, contrary to s 409 of the Criminal Code. On an application for leave to appeal to this Court heard on 12 December 1996 the appellant was granted leave to appeal, the appeal allowed and the sentences so imposed were varied by ordering that the aggregate sentence should be suspended for two years from 12 December 1996 under s 76 of the Sentencing Act 1995. At the time of the decision the appellant had already served portion of the aggregate sentence between 8 October 1996 and 12 December 1996. The suspension necessarily operated from 12 December 1996.
The fraud offences had been committed between December 1994 and December 1995. They involved a series of financial transactions based upon the drawing of cheques which the appellant knew would be dishonoured. This Court was persuaded to allow an appeal from the sentences aggregating three years and six months' imprisonment because new evidence was put before the Court, which was not before the District Court, that the appellant's son was suffering an acute condition of leukaemia which had been in remission at the time he was sentenced in the District Court. A relapse had occurred, which was feared but not known at the time the appellant was originally sentenced. It was in this sense that the subsequent events cast new light on facts which were before the sentencing Judge. This was the sole ground upon which the Court of Criminal Appeal intervened and varied the sentence imposed in the District Court: Anderson v The Queen, unreported; CCA SCt of WA; Library No 960752; 17 March 1997.
Section 80(1) of the Sentencing Act 1995 provides that:
"If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6,000 and make no order in respect of the suspended imprisonment."
Section 80(3) provides that:
"A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed."
Subsections (4), (5) and (6) of s 80 provide as follows:
"(4)If a court does not make an order under subsection (1)(a) it must state its reasons for not doing so.
(5)When making an order under subsection (1)(a) or (b), a court may make a parole eligibility order under Part 13 in respect of the term to be served.
(6)If a court makes an order under subsection (1)(a) or (b) the offender must serve the imprisonment -
(a)immediately; and
(b)concurrently with any other term of imprisonment he or she is serving or is yet to serve."
In sentencing the applicant, the learned Judge said:
"The Court of Criminal Appeal saw fit to suspend the sentence of three years six months' imprisonment because new evidence had come before the Court which was not before the District Court, and that was that your son was suffering an acute condition of leukaemia which had been in remission at the time you had been sentenced in the District Court. A relapse had occurred, which was feared but not then known at the time of the original sentence. Were it not for this fact, the Court would not have interfered with the sentence imposed in the District Court. As at 5 December 1997 when you embarked upon the series of offences which led to the charge of stealing $8,669, you were thus under a suspended sentence of imprisonment, and I must first deal with that issue. Under the provisions of s 80 of the Sentencing Act, you've been convicted of an offence committed during the suspension period of the suspended term of imprisonment imposed by the Court of Criminal Appeal and that means I must deal with you by one of a number of methods.
For practical purposes in this case, they are either to order you to serve the term or terms of imprisonment suspended, to order you to serve part of the term or terms suspended or I may fine you no more than $6,000 or I may make no order in respect of the suspended sentence of imprisonment. I have to make an order that you serve the term of imprisonment that was suspended unless I decided it would be unjust to do so in view of all the circumstances that have arisen or become known since the suspended imprisonment was imposed.
The Court of Criminal Appeal gave you a chance to show that you could rehabilitate yourself by the imposition of the suspended sentence, and what you did was commit an offence of almost the same nature between 5 December 1997 and 1 April 1998, the commencement of that course of offending being only a year after the Court of Criminal Appeal had seen fit to put you on a suspended sentence.
In those circumstances, I have no alternative but to order that you serve part of the term of imprisonment. I am not prepared to dispose of the matter by way of fine or by making no order in respect of the suspended sentence of imprisonment. I am of the view that it is appropriate to order that you serve part of the term that was suspended, and the order I make is that you serve a period of two years of that term of imprisonment which was three years six months."
The learned Judge then proceeded to sentence the applicant in respect of the offence of stealing the $8,669. After concluding that the only disposition was by way of a sentence of imprisonment the learned Judge said:
"There is no question of suspending the sentence as you have already shown an inability to deal with a suspended sentence. The sentence I impose is 12 months' imprisonment. That will be cumulative upon the sentence of two years' imprisonment which I have imposed in relation to the breach of the suspended sentence. There will be orders for eligibility for parole in relation to each of the matters; that is, the suspended sentence in relation to which I have sentenced you to two years and the stealing in relation to which I have sentenced you to 12 months."
The sentences were directed to commence from 1 November 1999. It follows that the total sentence imposed was three years.
The applicant sought leave to appeal on two grounds as amended, namely:
"The learned sentencing Judge erred in law in that he:
1.Failed to take into account Section 80(6) of the Sentencing Act 1995.
PARTICULARS
(i)By Section 80(6) of the Act a term of suspended imprisonment is to be served concurrently with any term of imprisonment to be served.
(ii)A term of one years imprisonment for the further offence was ordered to be served cumulatively to the term of 2 years imprisonment imposed pursuant to Section 80(1)(b) of the Act.
2.Failed to give sufficient weight to the personal circumstances of the Applicant and his family.
PARTICULARS
The son of the Applicant is diagnosed with acute lympholdastic leukemia."
The application for leave to appeal was made one day out of time. An application was made for an extension of time which was unopposed and the extension was granted at the hearing.
It was submitted on behalf of the applicant that the sentence of imprisonment for two years for breach of the suspended term be served cumulatively upon the sentence of 12 months imposed for the offence of stealing which triggered the breach was in error as the relevant term of imprisonment was required to be served concurrently with any other term of imprisonment the applicant was yet to serve by virtue of s 80(6). The Crown conceded that the learned sentencing Judge erred in law in failing to take account of s 80(6) of the Sentencing Act and accepted that the sentence imposed by the learned sentencing Judge should be quashed and such other sentence in respect of both matters as the Court thought fit should be imposed in accordance with s 689(3) of the Criminal Code.
It may be accepted that the language of s 80(6) of the Sentencing Act is not crystal clear, insofar as it requires that if a court makes an order under subs (1)(a) or (b) the offender must serve the imprisonment "concurrently with any other term of imprisonment he or she is serving or is yet to serve". Section 80(6) seems to assume that the offence which was committed during the period of suspension of an earlier sentence would be dealt with first. If the "triggering" offence was dealt with by way of a sentence of imprisonment, which was to be served immediately, then s 80(6) would require the term of imprisonment the subject of an order under s 80(1)(a) or s 80(1)(b) to be served concurrently with the former term.
It was suggested during the course of argument that if, as a result of the commission of the triggering offence, an offender was ordered to serve the whole or part of a suspended term, prior to being sentenced for the triggering offence, there would not yet be another term of imprisonment he or she was "serving or is yet to serve". In my opinion, that would be an extremely artificial approach which would turn on the order in which matters were dealt with. In my view, where the whole or part of a suspended term of imprisonment is ordered to be served, followed immediately by the imposition of a sentence of imprisonment for the triggering offence, there is brought into existence a term of imprisonment which the offender is "yet to serve". In such a case s 80(6) requires that the whole or part of the suspended term ordered to be served must be served both immediately and concurrently with the other term of imprisonment. In other words, as soon as an additional sentence is imposed in respect of the triggering offence, there is a sentence "yet to be served". So much was conceded by the Crown. It follows that the applicant was entitled to succeed on ground 1 in terms of the concession made by the Crown. It also follows that the sentence of imprisonment for 12 months imposed by the learned Judge for the offence of stealing should be served concurrently with the sentence of two years imposed in respect of the breach of the suspended term.
In support of ground 2 of the grounds of appeal it was submitted that the service of the suspended term of imprisonment should not have been triggered and it would have been appropriate to substitute another suspension period under s 80(1)(c). The approach to the question whether or not a sentence should be suspended has been considered by this Court in R v GP (1997) 18 WAR 196 at 216 - 220 per Malcolm CJ; at 231 - 235 per Murray J; and at 242 - 243 per Steytler J; and R v Liddington (1994) 18 WAR 394 at 396 - 399 per Malcolm CJ; at 400 - 404 per Ipp J and at 404 - 406 per Steytler J. While the prospect of rehabilitation is not the only relevant factor when considering whether or not to suspend a sentence of imprisonment, nor even the determining factor, it is a significant factor.
In R v GP at 233 - 234 Murray J observed that once it had been determined that a sentence of imprisonment should be imposed:
"… then the question of the suspension of the sentence is a matter of deciding whether or not the prisoner should have the special opportunity for reform which the process of suspension of sentence offers."
His Honour referred to cases in which it was indicated that the primary aim sought to be achieved by suspension was to provide an inducement to reform. His Honour went on to say at 234:
"That is not, I think, to foreclose other legitimate aims of the making of such an order, such as those referred to in R v P [(1992) 39 FCR 276 at 285]. For myself, I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful."
Some three weeks after the applicant pleaded guilty in the District Court on 5 September 1996, the applicant's son was diagnosed with a recurrence of acute lymphoblastic leukaemia. Chemotherapy commenced on 2 November 1996. The appeal to this Court was heard on 12 December 1996 when the sentence was suspended on compassionate grounds.
As has already been noted, the subsequent offence of stealing was committed between 5 December 1997 and 1 April 1998. The circumstances were that in or about October 1997 the applicant opened a cheque account in his own name with the Metway Bank in Queensland. Between 5 December 1997 and 1 April 1998 the applicant deposited 10 valueless cheques totalling $101,500 into his wife's business bank account with BankWest in Western Australia. The intention of each deposit was to falsely inflate the balance of her account so that he could withdraw money from the account for his own purposes. He knew that he did not have the funds in his own account for the cheque to be honoured. With his banking background he knew that, because his Metway Bank cheque was drawn on a bank in the Eastern States, it would take nine days to clear, although he could withdraw funds against the cheque after five days. This is what he did. After each cheque was dishonoured by Metway Bank, the applicant then deposited another valueless cheque to again falsely inflate his wife's account and again withdrew cash against the deposited cheque after five days. In February 1998 the applicant's bank account with Metway was closed, but he still continued to write out and deposit valueless Metway Bank cheques into his wife's bank account and withdraw cash against such cheques. As indicated, the total amount involved was $8,669.58 stolen from BankWest. On 7 April 1999 detectives from the Major Fraud Squad interviewed the applicant at the offices of the Squad. The applicant participated in a video‑recorded interview where he made full admissions.
In March 1998 the applicant's son had a second relapse of his acute lymphoblastic leukaemia. It was submitted that this second relapse is a circumstance which has arisen since the suspended imprisonment was imposed and as such gives rise to a discretion to this Court to consider whether an order under s 80(1)(a) or s 80(1)(b) must be made.
Where the crime is of a kind where the predominant sentencing consideration is general deterrence, the circumstances of the dependants of the offender "must be truly exceptional before compassion for them can have any worthwhile effect on sentence": Burns (1997) 71 A Crim R 450 at 455 per Anderson J. In Day (1998) 100 A Crim R 275 Wood CJ at CL in the Court of Criminal Appeal of New South Wales acknowledged that it was possible that a case in which a child was suffering from a form of illness or other disability calling for special care or an actual threat to the health of a dependant might be regarded as "truly exceptional". It was submitted on behalf of the applicant that the illness suffered by his son was "truly exceptional" and as such was sufficient to justify a further suspension of the sentence imposed by this Court and the separate sentence imposed by Miller J. In the present case, the subsequent offence commenced to be committed just under half way through the period of suspension.
The original decision of this Court in Anderson v The Queen (supra) to vary the aggregate sentence of imprisonment originally imposed by suspending it for two years was made because information had come to light that the applicant's son had suffered a relapse of his leukaemia and was about to undergo a bone marrow transplant. Another son of the applicant was to be the donor. At that time it was considered that these circumstances were truly exceptional so as to justify the suspension of the sentence: see at 7 - 9 per Steytler J (with whom Malcolm CJ and Murray J agreed) and at 8 where I said:
"It was this aspect of the case (as was conceded by the Crown) which brought it within the context of an extreme case where a sentence of imprisonment would subject the offender and his family to such a degree of hardship as warranted the Court to extend mercy. This is one of the cases where it 'would be, in effect inhuman to refuse to do so': Wirth v R (1976) 14 SASR 291 at 296 per Wells J; and see H (1995) 81 A Crim R 88."

In my opinion, when sentencing the applicant on this subsequent occasion, Miller J correctly determined that a point had been reached where no further indulgence or mercy could be extended to the applicant.

The circumstances of his re‑offending involved the commission of an offence involving transactions of a similar nature to those for which he was placed on the suspended sentence in the first place. His son's illness was in remission when the transactions constituting the stealing commenced.

It is for these reasons that I joined in making the orders which allowed the appeal to the extent of the concession made by the Crown, but otherwise dismissed the appeal. In the result, the proper formal disposition of this matter should be to grant the extension of time sought, allow the appeal to the extent of the Crown's concession, namely, by setting aside the order that the sentence of 12 months' imprisonment be served cumulatively upon the sentence of two years for breach of the suspended sentence and directing that the sentence of 12 months be served concurrently with the sentence of two years, but otherwise refusing the application for leave to appeal against sentence. The order for eligibility for parole in respect of each of the sentences imposed will stand.
Since the hearing of the application on 2 December 1999 two letters have been received from the applicant in which he asks for his application to be listed again to consider possible alternatives to the suspension of the sentences, including setting aside the sentences of imprisonment and the substitution of a non-custodial sentence, such as a fine or an intensive supervision order or the imposition of a finite sentence of a total of two years with eligibility for parole. In my opinion, for the reasons already expressed, by the commission during the period of suspension of the present offence of stealing by a series of fraudulent transactions between 5 December and 1 April 1998, the applicant has forfeited any entitlement he might otherwise have had to seek any indulgence from the Court for a second time. To the extent that this means that he is unable to have contact with his ill son, the responsibility rests entirely with the applicant himself.
WALLWORK J: I agree with the reasons for judgment of the Chief Justice. I do not wish to add anything to those reasons.
ANDERSON J: I have had the advantage of reading the reasons for judgment of the Hon the Chief Justice. I agree with those reasons and have nothing to add.