Anderson v The State of Western Australia [No 3]
[2014] WASCA 190
•22 OCTOBER 2014
ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2014] WASCA 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 190 | |
| THE COURT OF APPEAL (WA) | 22/10/2014 | ||
| Case No: | CACR:72/2014 | 4 AUGUST 2014 | |
| Coram: | MAZZA JA HALL J | 9/09/14 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ANDERSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for leave to appeal against sentence Appellant sentenced to 3 years and 6 months' imprisonment for one count of fraud Allegation of express errors Whether sentence manifestly excessive Whether new evidence material Whether family hardship mitigatory Turns on own facts |
Legislation: | Criminal Code (WA), s 409(1)(c) Sentencing Act 1995 (WA), s 9AA |
Case References: | Anderson v The Queen (1996) 18 WAR 244 Anderson v The Queen [1999] WASCA 291 Anderson v The State of Western Australia [2007] WASCA 25 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Hodder v The Queen (1995) 15 WAR 264 Markovic v The Queen (2010) 30 VR 589 Pollock v The State of Western Australia [2011] WASCA 133 R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451 R v Wirth (1976) 14 SASR 291 Stewart v The Queen (1994) 72 A Crim R 17 The State of Western Australia v Chapman [2012] WASCA 203 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2014] WASCA 190 CORAM : MAZZA JA
- HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DAVIS DCJ
File No : IND 1258 of 2013
Catchwords:
Criminal law and procedure - Application for leave to appeal against sentence - Appellant sentenced to 3 years and 6 months' imprisonment for one count of fraud - Allegation of express errors - Whether sentence manifestly excessive - Whether new evidence material - Whether family hardship mitigatory - Turns on own facts
Legislation:
Criminal Code (WA), s 409(1)(c)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L M Fox (only with respect to the application for bail)
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The Queen (1996) 18 WAR 244
Anderson v The Queen [1999] WASCA 291
Anderson v The State of Western Australia [2007] WASCA 25
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Hodder v The Queen (1995) 15 WAR 264
Markovic v The Queen (2010) 30 VR 589
Pollock v The State of Western Australia [2011] WASCA 133
R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451
R v Wirth (1976) 14 SASR 291
Stewart v The Queen (1994) 72 A Crim R 17
The State of Western Australia v Chapman [2012] WASCA 203
1 MAZZA JA: On 4 August 2014, this court heard the appellant's applications for bail pending appeal, to adduce evidence in an appeal and for leave to appeal against sentence. At the conclusion of the hearing, the court dismissed the application for bail. On 9 September 2014, the court pronounced orders dismissing the remaining applications. My reasons for the making of these orders are as follows.
The sentence
2 The appellant was charged in the District Court with one count of fraud, contrary to s 409(1)(c) of the Criminal Code (WA). This offence carries a maximum penalty of 7 years' imprisonment. The precise terms of the charge were:
On 15 December 2009 at Perth [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely the sum of $753,139.86, for [the appellant].
3 On 28 January 2014, he pleaded guilty. On 17 April 2014, he was sentenced by Davis DCJ to 3 years 6 months' imprisonment with eligibility for parole.
The facts of the offending
4 On 1 November 2009, the appellant applied for a loan from the Police & Nurses Credit Society Ltd (the complainant) in the sum of $722,000 through a broker to purchase a home in Inglewood.
5 Although the appellant applied for the loan in his correct name, he gave a false date of birth. This is significant because, as will be seen, the appellant had been convicted, prior to 2009, of many dishonesty offences. The appellant was well aware that the application would be rejected if the complainant knew his true identity.
6 The appellant's deception was not limited to the provision of a false date of birth. The appellant also provided a number of documents which he had falsified, being:
(a) a birth certificate;
(b) a driver's licence;
(c) payslips from his then employer; and
(d) bank statements in respect of an account he held with Westpac.
7 The payslips were altered to represent that he was earning more income than, in fact, he was being paid. As to his income, he combined his earnings with his wife's, who was, at the time, working casually. The bank statements were falsified to substantially inflate his savings.
8 On 30 November 2009, the complainant, relying on the truth of the information the appellant had provided, approved the loan application.
9 On 1 December 2009, the appellant entered into a loan agreement with the complainant. In all, the complainant advanced him $753,139.86, $31,139.86 of which was the lender's mortgage insurance fee.
10 On 15 December 2009, the purchase of the property settled and the loan proceeds were disbursed. On that day, the complainant registered a first mortgage over the property.
11 Although the appellant made some repayments on the loan, he fell into arrears. In July 2011, the complainant took possession of the property and exercised its power of sale. The learned sentencing judge found that there was a shortfall on the sale of the property and that the overall loss to the complainant, including various costs, was $154,340.72. Most of this loss was recovered from the mortgage insurers, although, in the end, the complainant was left with a shortfall of $18,941.52. The appellant did not challenge any of these sums at first instance. Indeed, they were confirmed in the appellant's written sentencing submissions filed 18 March 2014. The appellant now says that these figures are wrong. I will deal with this point later.
The course of the proceedings
12 The appellant was initially charged on a prosecution notice dated 4 June 2012. He appeared on numerous occasions in the Magistrates Court before being committed on 18 October 2013 to the District Court for sentencing.
13 On 28 January 2014, the appellant pleaded guilty to the charge in the District Court. The material facts were read by the prosecutor and were admitted by his then counsel (ts 10). The appellant applied for and was granted an adjournment of the proceedings to obtain evidence with respect to his wife's mental health.
14 On 6 March 2014, the matter came on for sentence. A short time prior to this appearance, the appellant changed his solicitors. A further application for an adjournment was made by his new counsel. Counsel sought the adjournment to put forward written submissions and material relating to the health of the appellant's wife. Counsel also said there was a question to be raised about the statement of material facts. Her Honour granted an adjournment to 20 March 2014, but sounded a warning to the effect that if reports relating to the appellant's wife were not forthcoming, she would proceed in their absence. The learned sentencing judge made orders for the parties to file written submissions prior to 20 March 2014. Those submissions were filed on or about 18 March 2014. Some of the documents annexed to those submissions were expert reports relating to the appellant's wife's health written in 2011 and 2012.
15 On 20 March 2014, the appellant's counsel sought another adjournment to deal with mitigatory matters raised in his written submissions which were challenged by the prosecution. In the course of the proceedings on that day, her Honour expressed 'serious misgivings' about some of the factual matters asserted in the defence submissions. Her Honour adjourned the proceedings to 17 April 2014. In granting the adjournment, her Honour said to defence counsel:
Does he understand - do you understand that? You're not going to appear before me on 17 April and ask for another adjournment (ts 47).
16 On 16 April 2014, the appellant filed an affidavit sworn on that day. In it, the appellant:
(a) asserted he obtained the loan 'for the sole purpose of providing a home for my family';
(b) provided medical evidence as to his wife's mental health, including a letter dated 17 March 2014 from his wife's general practitioner, Dr Jill McCauley (MA 6) and a discharge summary signed by a consultant in the Department of Psychiatric and Behavioural Sciences at Sir Charles Gairdner Hospital dated 1 October 2013 (MA 7);
(c) asserted that, due to his wife's condition, he spends 'about two hours per day at work';
(d) asserted that his wife's medical condition 'will severely deteriorate'; and
(e) stated that, without him, his wife and stepdaughter will have no one to care for them and nowhere to live.
The appellant's plea in mitigation
17 At the sentencing hearing on 17 April 2014, counsel for the appellant submitted that his sole intention was to purchase a home for his wife and stepdaughter. It was said that he entered into the loan agreement with the complainant, intending to make repayments under the loan as and when they fell due. However, his wife, who had a history of mental illness, became ill and as a result she ceased her employment. The consequent financial stress led to the loan going into default.
18 Counsel submitted that the advance to the appellant was secured by a first mortgage and that, in the event, nearly all of the shortfall was covered by mortgage insurance. Counsel submitted that the ultimate loss to the complainant was modest.
19 The appellant's counsel referred her Honour to medical reports which had been filed on 18 March 2014 and on 16 April 2014, to the effect that the appellant's wife suffers from schizo-affective disorder (a combination of schizophrenia and mood disorder) as well as depression. The reports revealed that she has symptoms of suicidal tendency, panic attacks, anxiety, low energy and low mood. She was hospitalised for these conditions on three occasions: from 11 to 25 May 2012; from 17 to 24 August 2012; and from 22 August to 20 September 2013.
20 The appellant's counsel provided her Honour with a medical report from Dr McCauley dated 17 March 2014, to the effect that the appellant's wife's mental health had worsened in the previous five years and that she had required hospital admissions approximately once or twice a year.
21 In addition to this material, her Honour was provided with a letter written by the appellant and a letter written by a man named Andrew Hunter, who was, at the time of the appellant's sentencing, residing with the appellant, his wife and his stepdaughter.
22 Finally, in a letter addressed to the primary judge, the appellant's wife stated that she had been hospitalised 'for six weeks in November 2010'.
23 The discharge letter associated with her last period of hospitalisation in 2013 noted under the heading 'Social Issues':
Lives at home with husband. Supportive husband. Supportive mother and sister, both of whom live in Perth.
24 Dr McCauley's report dated 17 March 2014 said:
She [the appellant's wife] suffers from persistent symptoms relating to her psychiatric illnesses when not in hospital, and during this time usually requires supportive care from her husband Michael Anderson. He is also the main carer for their daughter, who is now 14 years old. The level of care that she requires often means that her husband is unable to work for prolonged periods of time, and he is the main income earner for the family.
25 Counsel for the appellant submitted that, because of her mental health, the appellant's wife was unable to care for herself or the appellant's stepdaughter. It was said that the appellant was not only the sole breadwinner of the family, but the sole carer for his wife and stepdaughter. It was submitted that if the appellant was sentenced to an immediate term of imprisonment, his wife and stepdaughter would suffer great hardship. It was submitted that the hardship which the appellant's incarceration would cause was exceptional and that the court should, in an exercise of its mercy, impose a suspended term of imprisonment.
26 The sentencing submissions made on behalf of the appellant may be summarised in this way:
(a) the actual loss to the complainant was modest and low in comparison with other cases;
(b) the appellant was motivated to provide a home for his 'needy family' and that he intended to treat the mortgage 'once obtained as a fair commercial transaction';
(c) the appellant acted 'responsibly' by taking out mortgage insurance, paying a significant deposit towards the purchase of the house and by making repayments on the mortgage;
(d) the appellant pleaded guilty and was remorseful; and
(e) the imposition of an immediate term of imprisonment would cause exceptional hardship to both the appellant's wife and stepdaughter and were exceptional reasons to suspend the term of imprisonment.
The appellant's antecedents, including his prior dishonesty convictions
27 At the time he was sentenced, the appellant was 53 years of age. The appellant has been married twice. He and his first wife divorced in 2000 after 16 years of marriage. He married his current wife in 2010. The appellant has a good relationship with his parents and his three siblings. He is in good general health and has no issues with alcohol or substance abuse.
28 The appellant has a long and extensive prior criminal history for offences of dishonesty. In 1992 and 1994, he was convicted in the Court of Petty Sessions of dishonesty offences for which he was fined.
29 On 8 October 1996, he was convicted of 27 counts of fraud in the District Court and sentenced to a total effective term of 3 years 6 months' imprisonment. On 12 December 1996, the Court of Criminal Appeal varied the sentence by ordering that it be suspended for a period of 2 years. This was because the appellant's youngest son, whose leukaemia was in remission at the time he was sentenced, had suffered a relapse after the imposition of the sentence. The effect of fresh evidence submitted to the Court was that the child's recovery would be enhanced if he was able to see the appellant. The Crown conceded that the sentence should be reviewed on appeal. The Court, stressing the exceptional circumstances, varied the sentence as described: Anderson v The Queen (1996) 18 WAR 244.
30 On 1 November 1999, the appellant pleaded guilty in the Supreme Court to stealing $8,669.58, the property of Bankwest, between 5 December 1997 and 1 April 1998. He thereby breached the suspended sentence imposed upon him by the Court on 12 December 1996. The learned sentencing judge sentenced him to 12 months' imprisonment for the stealing offence and ordered that he serve 2 years' imprisonment as a result of the breach of the Court's order. His Honour ordered that the terms of imprisonment be served cumulatively, thus resulting in a total effective term of 3 years' imprisonment.
31 The appellant appealed against the sentence. The Court allowed the appeal, and held that the sentence of 12 months' imprisonment be served concurrently with the sentence of 2 years imposed in respect of the breach of the suspended term: Anderson v The Queen [1999] WASCA 291. It is of interest to note that Malcolm CJ, with whom Wallwork and Anderson JJ agreed, expressed the opinion that the sentencing judge had 'correctly determined that a point had been reached when no further indulgence or mercy could be extended to the applicant'.
32 On 13 November 2001, the appellant was sentenced to a total effective term of 21 months' imprisonment for two more offences of fraud.
33 The appellant committed further offences between 2002 and 2003. Some of these offences, like the present offence, involved falsified documents, including birth certificates and driver's licences. In all, the appellant committed one count of conspiracy to commit fraud, 54 counts of fraud, one count of forgery and one count of uttering. The learned sentencing judge would have imposed a total term of imprisonment of 5 years and 4 months, but, because of cooperation with authorities, that term was reduced to 3 years and 2 months' imprisonment commencing from 16 January 2006. The appellant appealed against this sentence. The appeal was dismissed: Anderson v The State of Western Australia [2007] WASCA 25. One of the mitigating factors relied upon by the appellant was that he had commenced his career of fraudulent offending while his son had been undergoing treatment for leukaemia. Wheeler JA, with whom McLure and Buss JJA agreed, noted the 'very compassionate sentence' imposed by the Court of Criminal Appeal in Anderson v The Queen (1996) 18 WAR 244. Her Honour went on to note:
Despite that earlier leniency, the appellant's offending has not proved to be, as may have been thought at that earlier time, merely an aberration. Rather, he has again engaged in a very elaborate and serious series of offences. Both of the clinical psychologists who assessed the appellant comment on his lack of insight into the factors which have caused him to offend. While the sentence is not to be increased by reason of the fact that the appellant has previous convictions, his offending history does very significantly detract from the otherwise mitigatory effect of his personal circumstances.
In my view … the sentence of 5 years and 4 months (prior to the discount for cooperation) could not be considered to have been manifestly excessive [45] - [46].
The appellant's wife
34 The evidence is not clear as to exactly when the appellant formed his relationship with his present wife. As his professed purpose for taking out the loan from the complainant was to provide a family home, it may be safely assumed that the relationship was on foot at the time the present offence was committed. Given that the appellant's wife's mental illness was of long standing, it is inconceivable that he was unaware of it at the time he committed the offence, although it must be recognised that it was not as severe then as it later became.
The pre-sentence report
35 The learned sentencing judge had before her a pre-sentence report dated 29 November 2013. The author of the report observed that the appellant 'attempted to minimise the extent of his criminality stating that he "only provided a different date of birth and income"'. The report also contained information concerning the appellant's previous performance on parole. I will refer to this later in these reasons.
The prosecution submissions on sentence
36 The State submitted at first instance that the only appropriate sentence was a term of immediate imprisonment. The respondent submitted that the evidence before the learned sentencing judge was insufficient to establish that the appellant was the only person able to care for his wife and stepdaughter. It was submitted that the hardship that his wife and stepdaughter would experience as a result of the appellant's imprisonment was not so exceptional as to justify the imposition of a suspended term of imprisonment. In any event, having regard to the need to provide general and, in particular, personal deterrence, such an outcome would be inappropriate.
The learned sentencing judge's sentencing remarks
37 Her Honour rejected the submission that the fraud was not serious because the appellant had fully intended to repay the loan. Her Honour noted that the gravamen of the offence was 'the securing of the loan fraudulently and [the gaining of] a benefit that you would not otherwise have obtained' (ts 111). Her Honour described the offence as 'calculated and planned'. She noted that the appellant carried out the fraud, not just by changing his date of birth on the application for finance, but by falsifying documents with the aim of representing that he was in a better financial position than was in fact the case.
38 Her Honour observed that the appellant had convictions for fraud offences committed in similar circumstances. She specifically referred to Anderson v The Queen (1996) 18 WAR 244 and Anderson v The State of Western Australia [2007] WASCA 25. Each of those cases, she noted, involved falsified documents, including birth certificates and pay slips.
39 Her Honour characterised the offending as 'very serious' (ts 112).
40 Her Honour carefully and in detail analysed the reports that were before her concerning the appellant's wife's mental health, as well as the appellant's wife's letter (ts 112 - 114).
41 Her Honour noted that the hospital discharge summary relating to the time the appellant's wife spent in hospital between 22 August and 20 September 2013 referred to her having a 'supportive mother and sister, both of whom live in Perth'. She also noted the contents of Dr McCauley's report dated 17 March 2014.
42 With respect to the appellant's criminal record, her Honour said that while it was not aggravating in itself, it showed that the appellant's offending was not uncharacteristic and was relevant to, inter alia, factors of personal deterrence and the protection of the community.
43 With respect to general deterrence, the learned sentencing judge said that the offending struck at the heart of commercial financing and credit systems, and that the courts had to do what they could to stop the type of behaviour engaged in by the appellant.
44 Her Honour considered that the only appropriate sentencing option was a term of imprisonment. The issue for her was whether the term should be served immediately or suspended. Her Honour declined to suspend the term of imprisonment.
45 Her Honour dealt with the submission that the complainant had, in fact, only suffered a modest loss by making the point that the complainant would not have entered into the loan agreement had it not been for the appellant's fraudulent behaviour. Her Honour emphasised that the appellant's fraud resulted in the complainant acting to its detriment in advancing a large sum of money, which was put at risk. Her Honour found that although the complainant had recovered a substantial sum from the mortgage insurers, this was not mitigatory as the mortgage insurance was financed from the loan itself. In any event, her Honour found, having regard to the seriousness of the offending, the fact that there was mortgage insurance and the exact financial loss to the complainant were not significant mitigatory factors. This was because of the level of deception engaged in by the appellant and the need to provide general and personal deterrence.
46 With respect to the submission that a suspended sentence should be imposed having regard to the hardship that would be suffered by the appellant's family in the event that he was immediately imprisoned, her Honour found that the appellant's wife's mental state was such that when she was at home, she required support and that the appellant had been providing support to both her and his stepdaughter. Her Honour accepted that the appellant's wife and stepdaughter would be adversely affected in the event that he was immediately imprisoned. However, she found that there was 'no evidence that there is no one else apart from [the appellant] who can provide support to [his] wife and stepdaughter' while he was in prison. As to this, her Honour said:
I have no information that, for example, other family members, including your own family with whom, according to the pre-sentence report, you have a good relationship are not able to help with your wife and stepdaughter.
It is also clear from the most recent discharge summary from [the hospital] that your wife has a supportive mother and sister, both of whom live in Perth. There is nothing to suggest that those two family members are not able to provide to support to your wife and stepdaughter (ts 121).
47 Her Honour found that the financial stress associated with the appellant's immediate imprisonment, while real, was unexceptional.
48 In any event, her Honour, in substance, found that it was inappropriate to extend mercy to the appellant by reason of hardship to his family having regard to the seriousness of the offending, which could not be said to have been committed at the spur of the moment or be an aberration. Her Honour referred to the comments made by Wheeler JA in Anderson v The State of Western Australia [2007] WASCA 25, which I quoted earlier. Her Honour said that 'those comments apply today for this offence for which I'm sentencing you' (ts 123).
49 The learned sentencing judge took into account the appellant's plea of guilty, which, although not entered at the first reasonable opportunity, attracted a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA). Her Honour afforded some leniency for the circumstances of the appellant's wife and stepdaughter. Her Honour did not find that the delay between the commission of the offence and the appellant being charged was mitigatory. She did not consider the delay unreasonable, nor did she consider that there was any evidence of rehabilitation on the appellant's part.
50 Her Honour summarised the position as follows:
… I have concluded that the mitigating factors of your personal circumstances and your plea of guilty are far outweighed by the aggravating factors. The fraud for which I am sentencing you is, in my view, at a high level of criminality. There is nothing so unusual about the circumstances of the offending or your personal circumstances, including the circumstances of your wife and child, which would justify a suspended imprisonment order.
This is also the case where, as I have already told you, there are three very important sentencing considerations. Specific deterrence, general deterrence and the protection of the community. The seriousness of the offence and the need for deterrence and the protection of the community lead me to conclude that the only appropriate sentencing option is immediate imprisonment (ts 124).
The grounds of appeal
51 Between the filing of the appeal notice on 24 April 2014 and the filing of the appellant's case on 22 July 2014, the appellant twice applied (3 June 2014 and 11 July 2014) to amend his grounds of appeal.
52 The grounds of appeal contained in his appellant's case, which were the ones relied upon by him before this court at the hearing on 4 August 2014, are as follows:
1. The learned Sentencing Judge made an express error of law and fact in not suspending the Appellant's sentence of imprisonment given the mitigation in the security to which the complainant building society have over the property the subject of the fraud, the insurance to which the Appellant had agreed and the actual loss the complainant after the mortgagee sale.
2. The learned Sentencing Judge made an express error in law and fact in not suspending the Appellant's sentence of imprisonment given the hardship to the Appellant's wife and step-daughter.
Particulars
- (a) Her Honour found that:
(i) The Appellant's wife suffered from mental health issues which required the ongoing care and support of the Appellant and that occasioned episodes of hospitalisation;
(ii) The Appellant provided parental support to his step-daughter; and
(iii) The Appellant provided financial support to his wife and step-daughter and had done so solely since 2009 when his wife was unable to continue employment due to her mental health;
(b) However, Her Honour erred in being satisfied that:
(i) The Appellant's wife was capable of looking after herself and the Appellant's step-daughter; and
(ii) The Appellant's wife's family were able to provide support to her and the Appellant's step-daughter;
(c) By way of evidence at sentencing and new evidence, the Appellant's wife requires the support of the Appellant due to her diagnosed Schizoaffective disorder, severe depression and anhedonia; and
(d) Further, by way of new evidence, the Appellant's wife's mother and sister are unable to provide care and support of the Appellant's wife and step-daughter.
3. The learned Sentencing Judge made an express error in law and fact in not suspending the Appellant's sentence of imprisonment given the exceptional hardship to the Appellant's step-daughter from the Appellant's imprisonment and the Appellant's wife's illness.
Particulars
- (a) The evidence at sentencing showed that the Appellant provided parental support to his step-daughter, and particularly during periods of his wife's hospitalisations;
(b) By way of new evidence, the Appellant's wife's illness requires ongoing care and support and is exacerbated by the imprisonment of the Appellant and is likely to result in recurrent periods of hospitalisation;
(c) Further, by way of the evidence at sentencing and new evidence, the Appellant's step-daughter is not supported by her biological father and her only other family (the Appellant's wife's parents and sister) are unable to provide support; and
(d) There is therefore a particular and exceptional hardship upon the Appellant's step-daughter by the imprisonment flowing from his wife's illness and periods of hospitalisation, which would leave the Appellant's step-daughter without parental support in the community.
4. The learned Sentencing Judge erred in law by relying on psychological opinions not before the sentencing Court but referred to in a prior Appeal decision, when considering the suspension of the sentence.
Particulars
- (a) In the sentencing decision, the learned Sentencing Judge quoted from an appeal of the Appellant heard in 2007 ([2007] WASCA 25);
(b) The passage relied upon and quoted by the learned Sentencing Judge included reference to the opinions of two psychologists who had assessed the Appellant prior to that 2007 Appeal, and which opinions were not otherwise before the learned Sentencing Judge as evidence;
(c) The learned Sentencing Judge erred in relying on the interpretations and conclusions of other persons; and
(d) Further, the psychological opinion related to the aged and out of context finding of offending in 2002 leading to the 2007 appeal, and which were in relation to matters not before the sentencing court.
5. The learned Sentencing Judge erred and made express errors of fact which were then relied upon when considering the seriousness of this offence, the sentence to be imposed and whether that sentence should be suspended and how mitigatory the hardship to family was.
Particulars
- (a) Her Honour erred when referring to the Appellant's previous sentence in the 2006 for offences committed in 2002/2003. The learned Sentencing Judge stated the previous sentence was five (5) years and four (4) months when in fact it was substantially less being three (3) years and two (2) months;
(b) The learned Sentencing Judge erred and made errors of fact when stating the Appellant 'Intended to permanently deprive Police & Nurses Credit of its funds';
(c) The learned Sentencing Judge erred when she stated that the Appellant had his parole cancelled in 2003; and
(d) The learned Sentencing Judge erred in the comparison and classification of the severity and high level of criminality of this offence with the previous offences.
6. The learned Sentencing Judge made a procedural error during the sentencing proceedings on 20 March 2014 when she ordered 'Does he understand, do you understand that you're not going to appear before me on 17 April and ask for another Adjournment', which resulted in a number of issues relevant to the mitigation, hardship and severity raised and left unanswered leaving the sentencing process flawed and incomplete. This prevented the Appellant from being able to present all relevant evidence and prove the veracity of evidence already provided but questioned by the judge and DPP.
7. The learned Sentencing Judge erred and made error of judgement in her assessment of the Appellant's rehabilitation as evidence by her statement 'There is in my view, no evidence of rehabilitation in your case'.
8. The learned Sentencing Judge erred and made errors of fact and law when she determined that the hardship to the Appellant's family was not highly mitigating or exceptional, and placed very little weight on the substantial medical evidence before her. Subsequently, additional evidence is now provided which if available to the learned Sentencing Judge should have substantially altered her view of this issue.
9. The learned Sentencing Judge erred in imposing a sentence which was manifestly excessive in the proper exercise of her sentencing discretion, having regard to all the circumstances of severity, criminality and hardship. In relation to the offence and to the Appellant and his family.
10. The learned Sentencing Judge made errors of fact and law by making incorrect assertions and drawing incorrect conclusions about the veracity of the Appellant without reason which adversely affected his ability to present evidence as the mitigation, hardship and severity of the offence.
53 As these grounds supersede those contained in earlier applications, those applications were dismissed.
54 After the hearing of the application for leave to appeal, the appellant sent to the court an application to, in effect, add a ground of appeal and to adduce evidence in support of it. The application was filed on 22 August 2014. The proposed additional ground of appeal, although described as 'ground 9', is, in fact, the eleventh ground. It reads:
The learned sentencing judge erred in imposing a sentence which was manifestly excessive in the proper exercise of her sentencing discretion having regard to all the circumstances including:
· Treatment of loss and the risk of loss.
· Loss to the complainant.
· Loss to the community.
· Severity and criminality of offence.
· Hardship to family.
· Rehabilitation of the appellant.
56 Considering the grounds of appeal as a whole, they boil down to these contentions:
1. Her Honour erred in finding no evidence of rehabilitation (ground 7).
2. Her Honour erred in taking into account psychological assessments referred to by this court in Anderson v The State of Western Australia [2007] WASCA 25 (ground 4).
3. Her Honour made certain errors of fact (grounds 5 and 10).
4. By her statement made in the proceedings on 20 March 2014, 'Does he understand - do you understand that? You're not going to appear before me on 17 April and ask for another adjournment', her Honour 'prevented the appellant from being able to present all relevant evidence and prove the veracity of evidence already provided but questioned by [her Honour] and [the] DPP' (ground 6).
5. Based on the material before the primary judge, the sentence was manifestly excessive in that the wrong kind of sentence was imposed. Her Honour should have imposed a suspended term of imprisonment having regard to, in particular, the circumstances in which the offending took place, the allegedly modest loss incurred by the complainant and the impact of the sentence of immediate imprisonment upon the appellant's wife and stepdaughter (grounds 1, 2, 3 and 9).
6. As a consequence of additional evidence not before her Honour, the sentence should be reduced (grounds 8 and 11).
Contention 1 - The appellant's rehabilitation
57 The appellant submits that, apart from the offending in 2009, he last offended in 2002 and 2003. Since 2009 and up to his incarceration he had been consistently employed in responsible positions in the area of workplace safety. He had also developed a safety consultancy business called Interactive Safety Solutions Pty Ltd. He submitted that, since the commission of the present offence, he has been substantially rehabilitated. Accordingly, her Honour erred in finding that there was no evidence of rehabilitation.
58 Her Honour's statement in the sentencing remarks concerning rehabilitation was in respect of a submission that the delay between the occurrence of the offending and sentencing was mitigating. Her Honour rejected this submission, saying:
There is another factor which has been raised by your counsel, and that is the delay between your offending in December 2009 and today. I've had regard to decisions of the Court of Appeal dealing with delay like this, in particular Scook v The Queen [2008] WASCA 114.
In my view, most of the delay is due to the fact of your fraud, and that it was not discovered until early 2011. While there was some delay in the early stages after this discovery while police investigated the matter before your arrest in May 2012, I do not consider this initial delay to be unreasonable or undue.
Even if I was satisfied that there was delay, by itself delay is not mitigatory. However, if because of the delay between the offence and sentencing it appears that personal [deterrence] is no longer required, or real progress has been made towards an offender's rehabilitation, or other mitigating factors positively emerge, such matters may be taken into account.
It has been suggested to me by your counsel that there is some evidence of rehabilitation in your case. This is because you have employment and you have advanced your career. It is also said you have not [reoffended], and you have complied with bail since your arrest in May 2012.
However, you were employed at the time you committed this fraud. The mere fact that you may have led a blameless life between the time of your arrest and today is not necessarily an indication of rehabilitation. There is, in my view, no evidence of rehabilitation in your case in a sense of having undergone some form of counselling or treatment.
I do not consider that the time it has taken to get to this stage is because of any undue delay and to the extent that there has been delay, I do not find it is mitigatory in your case (ts 123 - 124).
59 It is clear that when her Honour said that there was no evidence of rehabilitation in the present case, that was in the sense that the appellant had not undergone any form of counselling or treatment. Her Honour's statement was factually accurate.
60 Insofar as her Honour's sentencing remarks might be understood as meaning that she did not regard the appellant's consistent employment since the commission of the present offence and lack of further offending as showing that the appellant was rehabilitated, it was open to her Honour to come to this conclusion. Balanced against the absence of offending since late 2009 and the appellant's consistent employment are:
(a) his prior record of serious offending which shows entrenched dishonesty;
(b) the absence of any counselling or treatment;
(c) the minimisation of the present offending; and
(d) the apparent lack of insight he has into the impact of his offending upon the complainant.
61 Contention 1 is not reasonably arguable.
Contention 2 - Her Honour's 'error' in taking into account psychological assessments not before the court
62 The appellant contends that her Honour erred by taking into account psychological assessments that were not before her. In support of the contention, the appellant pointed to her Honour's quotation from Wheeler JA's reasons in Anderson v The State of Western Australia [2007] WASCA 25 (to which I have earlier referred), in which Wheeler JA referred to the clinical psychologists in that case who commented on the appellant's lack of insight into the factors which cause him to offend.
63 The appellant contends that he has been deprived of procedural fairness because the reports of the psychologists referred to by Wheeler JA were not before the learned sentencing judge.
64 These arguments are unsustainable. They misapprehend the primary judge's sentencing remarks. In context, the learned sentencing judge was making an observation about the appellant's lack of insight in the present case, accompanied by the additional observation that this was consistent with his past conduct. On the material before the learned sentencing judge, it was plainly open to come to the conclusion that the appellant lacked insight into the causes of his offending. Her Honour did not take into account evidence which was not before her.
65 Contention 2 is not reasonably arguable.
Contention 3 - Alleged errors of fact
66 In his written submissions, the appellant alleges that her Honour made a number of errors of fact.
Alleged error of fact 1 - Her Honour erred when referring to the appellant's previous sentence in 2006
67 The learned sentencing judge stated that the appellant was sentenced to 5 years and 4 months' imprisonment on 24 March 2006. In fact, the appellant was sentenced to 3 years and 2 months' immediate imprisonment. It is clear that in Anderson v The State of Western Australia [2007] WASCA 25 the appellant would have been sentenced, at first instance, to 5 years and 4 months, but because of cooperation the sentence was reduced to 3 years and 2 months.
68 The appellant submitted that the significance of her Honour's error was that she overestimated the seriousness of the offending for which he was dealt with in 2006. Insofar as her Honour incorrectly stated the sentence that was imposed on the appellant, that error was immaterial to the outcome of this case. It is clear that her Honour was fully aware of the nature of that offending which, on any analysis, involved a high level of criminality. The appellant's cooperation with authorities did not affect the objective seriousness of those offences.
Alleged error of fact 2 - Her Honour erred by stating the appellant 'intended to permanently deprive [the complainant] of its funds'
69 Her Honour made no finding of fact in her sentencing remarks that the appellant had intended to permanently deprive the complainant of its funds. Her Honour made a comment to that effect in the course of defence counsel's submissions, but it is clear that the point her Honour was making was that the loan should never have been granted in the first place (ts 56).
70 An examination of her Honour's sentencing remarks as a whole reveals that the appellant was not sentenced on the basis that he did not intend to repay the loan. He was sentenced on the basis that he induced the complainant to lend him a substantial amount of money by deceitful means in circumstances where he knew that, had the complainant known the truth, the loan would not have been made (ts 111); further, that the appellant's fraud resulted in the complainant acting to its detriment in the sense that its funds were put at risk in advancing the loan to the appellant (ts 120).
71 The appellant asserts in his written submissions that the complainant's funds were never at risk. That appears to be the appellant's subjective view. What the appellant has consistently failed to have regard to is that it was the complainant who had the right to assess risk, not him.
Alleged error of fact 3 - Her Honour erred by stating that the appellant had his parole cancelled and that he was returned to prison in 2003
72 Relevantly to this point, her Honour said:
You committed a further two counts of fraud for which you were convicted on 13 November 2001 and you were ordered to serve 21 months in prison. You were released on parole, but this was cancelled due to reoffending. You committed a fraud offence on 24 July 2002, one month after being released on parole.
73 The appellant says in his written submissions that he has never been charged with breaching his parole, nor has he been returned to prison. He says that each time he has been granted parole, it has been successfully completed.
74 These assertions are contrary to the information that was provided to her Honour in the pre-sentence report which was unchallenged in the sentencing proceedings.
75 The pre-sentence report reveals that a parole order made in relation to the offences for which he was convicted on 13 November 2001 was cancelled due to reoffending. The entry in the pre-sentence report is in these terms:
Mr Anderson's parole order of 2002 - 2003 was cancelled due to reoffending - forgery, utter, conspiracy to defraud, fraud x 38. Mr Anderson claimed to have reoffended during this period of parole due to lacking employment prospects, influence of negative peers and knowing he 'wasn't going to get anywhere'.
Alleged error of fact 4 - Her Honour erred in her comparison and classification of the severity and high level of criminality of this offence with previous offences
76 Essentially, the appellant contends that her Honour erred in her assessment of the seriousness of the present offending. The way that the appellant seeks to demonstrate this is to assert that the offending against the complainant was not as bad as the offending he engaged in in 2002 and 2003.
77 Of course, the fact that the offending in 2002 and 2003 may have been more serious than the offending in the present case does not mean that the offending in the present case is not in itself serious. Very plainly it was, for all the reasons that her Honour articulated in her sentencing remarks.
78 The appellant particularly criticised her Honour's reference to Pollock v The State of Western Australia [2011] WASCA 133. The appellant submits, in effect, that those references were inapt.
79 It is unnecessary to canvass the facts of Pollock. Pollock's offending was more serious than the appellant's. However, there were similarities. The offending in Pollock and in the present case involved deliberate deception on the part of an offender to induce a financier to provide a loan which would not otherwise have been provided. In such cases, it is apt to observe, as her Honour did, that the offending strikes at the heart of the commercial finance and credit systems given that the financial system relies upon, and cannot properly function without, prospective borrowers providing true and correct information. In cases such as Pollock and the present case there is a need to protect the integrity of the commercial finance and credit system. That was the essential point being made by her Honour and she was, with respect, entirely correct to do so.
Alleged error of fact 5 - Her Honour calling into question the veracity of the appellant
80 The appellant asserts that the learned sentencing judge made errors of fact and law by making incorrect assertions and drawing incorrect conclusions about the veracity of the appellant which, he says, adversely affected his ability to present evidence relevant to sentence.
81 Really, the appellant is alleging that the learned sentencing judge treated him unfairly because she was unwilling to accept assertions made on his behalf without verification. There is no substance to this criticism. In light of the appellant's extensive history of offences of dishonesty and his tendency to produce false documentation, her Honour was entitled to insist on the verification of facts which were in dispute. Her Honour put the appellant's counsel on notice of this in the proceedings on 20 March 2014 (ts 29 - 30). In these circumstances, it cannot reasonably be said that her Honour acted unfairly.
82 Contention 3 is not reasonably arguable.
Contention 4 - Did her Honour prevent the appellant from presenting all relevant evidence in mitigation?
83 The appellant alleges that the learned sentencing judge made a 'procedural error' during sentencing proceedings on 20 March 2014 when she said to the appellant's counsel, 'Does he understand - do you understand that you're not going to appear before me on 17 April and ask for another adjournment?'
84 The appellant submits that when the sentencing proceedings resumed on 17 April 2014, 'several issues relevant to mitigation, hardship and severity of sentence were raised but left unanswered'.
85 Earlier in these reasons I outlined the history of the sentencing proceedings. On 18 October 2013, the appellant was committed for sentence to the District Court. On 28 January 2014, 6 March 2014 and 20 March 2014 the appellant sought and was granted adjournments to present further evidence. The appellant had in total almost 6 months to prepare for the proceedings on 17 April 2014.
86 In light of this history, it was open to her Honour to inform the appellant's counsel on 20 March 2014 that, having given the appellant another month to present his material in mitigation, there would be no further adjournments.
87 The appellant was given more than ample time to prepare his case. There is a clear interest in sentencing proceedings being completed expeditiously. If the primary court was not provided with all of the relevant documentation by 17 April 2014, that was not through any unfairness created by her Honour.
88 Contention 4 is not reasonably arguable.
Contention 5 - The sentence was manifestly excessive - hardship to family
89 Grounds 1, 2, 3 and 9 allege implied error on her Honour's part. In effect, it is submitted by the appellant that, on the evidence before her Honour, it was plainly unjust or unreasonable for her Honour to have imposed an immediate term of imprisonment. Rather, a suspended term of imprisonment should have been imposed. An alternative argument, although only faintly run, is that, if a term of immediate imprisonment was appropriate, a term of 3 years and 6 months was manifestly excessive.
90 The orthodox approach to the consideration of whether a sentence is manifestly excessive (or inadequate) is to examine the sentence from the perspective of the maximum sentence for the offence, the range of sentences customarily imposed, the seriousness of the offence in question and the personal circumstances of the offender.
91 The maximum penalty for an offence of fraud is, as I have explained, 7 years' imprisonment.
92 While there is no tariff for fraud offences because of the very diverse circumstances in which the offence is committed and of the offenders who commit them, the cases establish that in serious cases of fraud and stealing involving substantial sums of money, terms of immediate imprisonment have been imposed: see Pollock [71].
93 The circumstances of the commission of the offence have already been canvassed. Contrary to the submissions of the appellant, they were plainly serious. While general deterrence was an important factor, at least as important was the need for personal deterrence. The appellant's offending must be viewed against the background of a long, sustained history of similar offending. This, and the appellant's lack of insight into the wrongfulness of his offending, highlights further need for personal deterrence. In cases such as this where personal deterrence is an important factor, a more severe sentence is to be expected, subject, of course, to the principles of proportionality.
94 The appellant's antecedents were entirely unfavourable to him and afforded no mitigation.
95 Absent the claimed exceptional circumstances with respect to the appellant's family, it could not reasonably be contended that her Honour erred in imposing the sentence she did, either as to its type or its length.
The relevant legal principles - family hardship
96 The general principle is that hardship to an offender's family is not a mitigating circumstance. Imprisonment will, more often than not, cause hardship, sometimes serious hardship, to others. If hardship to others was routinely regarded as a mitigating factor, it would have a tendency to undermine the primary objective of sentencing, which is to impose a sentence commensurate with the seriousness of the offence. Moreover, to treat an offender who has dependents more leniently than one who does not has the tendency to defeat the appearance of justice and be patently unjust: Markovic v The Queen (2010) 30 VR 589 [6] - [7].
97 However, there are exceptional cases where family hardship may be mitigating. The threshold of exceptional circumstances is self-evidently very high. It has been said that it is 'extraordinarily difficult to satisfy': R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451 [3]. As Wells J said in his frequently cited judgment in R v Wirth (1976) 14 SASR 291, the circumstances of hardship must be so exceptional that 'it would be, in effect, inhuman to refuse to [afford leniency]' (296). It cannot be overlooked that in all cases in which it is submitted that exceptional circumstances apply, the gravity of the offence must be considered: Stewart v The Queen (1994) 72 A Crim R 17, 21. The more serious the offence, the less capacity the court has to mitigate punishment having regard to hardship to an offender's family: Hodder v The Queen (1995) 15 WAR 264, 286 - 287; The State of Western Australia v Chapman [2012] WASCA 203 [120].
Consideration of contention 5
98 The learned sentencing judge decided, having regard to the seriousness of the offence and the need for general and particularly personal deterrence, that it would be inappropriate to exercise mercy in this case. That was a decision which was well open to her in the exercise of her discretion and I would not interfere with it.
99 The primary judge also concluded, based on the evidence before her, that the appellant had failed to establish that his family would suffer exceptional hardship if he was to be incarcerated. Certainly the evidence established that the appellant's imprisonment would cause significant hardship to his wife and stepdaughter. That they are innocent victims of the appellant's offending cannot be denied and engenders sympathy as to their plight. However, her Honour was correct to conclude on the evidence before her that exceptional circumstances had not been demonstrated.
100 The fact that the appellant's wife and stepdaughter will be deprived of his income is a far from exceptional consequence when the breadwinner of a family is incarcerated. The appellant's inability to care for his wife and stepdaughter is also a common consequence of imprisonment. Those innocent family members who require care may have to rely on others for assistance. Sometimes that care will be far from ideal, but this does not amount to an exceptional circumstance.
101 The argument mounted by the appellant before the primary judge was, in effect, that his wife had high care needs and that no one else, apart from him, could provide that level of care. The onus on an offender who makes this claim is high, having regard to the threshold of exceptional circumstances. An offender will ordinarily be required to demonstrate that all reasonable alternative avenues have been explored and exhausted.
102 The learned sentencing judge noted the evidence that the appellant's wife had the support of her (the appellant's wife's) mother and sister. Her Honour also noted that the appellant's family were supportive. In these circumstances, her Honour was correct to decide that exceptional circumstances had not been established.
103 Contention 5 is not reasonably arguable.
Contention 6 - The additional evidence
The appellant's submissions in this appeal
104 The appellant asserts that, based on the evidence that was before her Honour, the primary judge erred in the conclusions she reached. In the alternative, the appellant seeks to rely on additional evidence not before the learned sentencing judge. In broad terms, that evidence is to the effect that the appellant's wife's family are unable to care for her, and the appellant's wife's mental condition will deteriorate in the event the appellant remains in custody.
The additional evidence sought to be adduced by the appellant in this appeal
105 The appellant has filed three applications to adduce additional evidence, on 3 June 2014, 11 July 2014 and 22 August 2014. Relevantly to the grounds under consideration, the appellant seeks to adduce:
1. Additional hospital admittance and discharge records in relation to the appellant's wife: appellant's affidavit sworn 30 May 2014, annexure MA 1.
2. A further report from Dr McCauley dated 8 May 2014 which attaches a summary of the appellant's wife's medical conditions and current medication: appellant's affidavit sworn 30 May 2014, annexure MA 2.
3. Letters from the appellant's wife's mother and stepfather dated 8 May 2014 (and apparently confirmed on oath on 25 June 2014): appellant's affidavit sworn 30 May 2014, annexures MA 4 and MA 5.
The appellant's wife's stepfather, Dennis Medley, states:
[The appellant's wife] has support from family however this cannot replace the seven day a week, live-in care provided by [the appellant].
- He states:
[The appellant's wife's] condition means that daily intensive support is required. [The appellant] provided this. It is not possible that family can provide the daily, extensive necessary care. Serious concerns exist currently for [the appellant's wife's] ongoing mental health.
- The appellant's wife's mother, Dorothy Popelier, states that she can no longer provide 'the same level of support to [the appellant's wife] as in previous years' because she is also required to support the appellant's wife's sister who has multiple sclerosis.
… over the last couple of years my circumstances have changed and I am no longer able to offer [the appellant's wife] the same support that I have previously.
5. A report from Mr Paul Clutterbuck, a registered psychologist, dated 29 May 2014, which states (appellant's affidavit sworn 30 May 2014, annexure MA 7):
… [the appellant's wife] has a long standing and complex history and she will require ongoing daily care and support. There is every likelihood that a further worsening of her symptoms and further hospitalisation could occur without this support.
Furthermore, based upon information provided by [the appellant's wife] and her presentation to me on the evening of 24 May 2014, late morning on 25 May 2014 and during the evening of 27 May 2014 (and during a lengthy telephone conversation with her on 23 May 2014), it is my professional opinion, established from these consultations and the diagnoses of schizoaffective disorder, severe depression, very low mood and anhedonia, and the reported history of extensive care by Mr Anderson for his wife and her daughter, that his release from prison could provide the health and wellbeing support needed by [the appellant's wife] and her daughter in terms of day to day care. This would reduce the possibility of further extended stays in hospital for [the appellant's wife]. Currently this lady has major difficulties caring for herself and her daughter due to her mental illness and I'm advised that there are no other family members who can assist with this care.
6. Seven documents designed to dispute the loss suffered by the complainant and which make various allegations as to the propriety of the complainant's conduct in respect of the sale of his house: annexures to appellant's affidavit sworn 13 August 2014.
Legal principles with respect to additional evidence in a sentence appeal
106 The relevant principles were recently discussed in Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] - [30]:
The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: Criminal Appeals Act 2004 (WA), s 39(1). However, the court has broad powers to admit other evidence: s 40(1)(e). In determining whether additional evidence should be admitted the general test to be applied is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: s 31(4)(a); Wheeler v The Queen[No 2] [2010] WASCA 105 [3], [53]; The State of Western Australia v Hyder [2011] WASCA 256 [25].
It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177,178; R v Vachalec [1981] 1 NSWLR 351, 353 - 354; R v Babic [1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 - 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].
Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] - [69]. The additional evidence was sought to be adduced on that basis.
Consideration of contention 6
107 There are two aspects to the additional evidence. The first aspect is with respect to hardship on the appellant's family. The second aspect is to dispute the loss suffered by the complainant and to make various allegations about the complainant, the effect of which is that they have claimed excessive fees and charges associated with the appellant's default and the exercise of their power of sale. The appellant also alleges that the complainant allowed the property to be sold for a sum well under its true market value.
108 In my opinion, it is not reasonably arguable that had the evidence sought to be adduced been before the sentencing judge, a different sentence should have been imposed. True it is that the new evidence shows that the appellant's wife's mother, stepfather and sister are unable to care for her in the same way that the appellant had. However, I do not read the material provided, particularly by the appellant's wife's mother and stepfather, as indicating that they are unable to provide the appellant's wife with any assistance at all. The material is entirely silent as to the appellant's family and the assistance that they can offer the appellant's wife and stepdaughter. In these circumstances, the material does not establish the degree of hardship asserted by the appellant.
109 Moreover, the circumstances of the appellant's offending and the need to provide proper deterrence and protection of the public are such that, even in light of the evidence sought to be adduced by the appellant in his various applications, the exercise of mercy in this case would be inappropriate.
110 I now turn to the second aspect of the additional evidence.
111 It is not for this court to undertake an investigation of these matters. It is highly relevant that the appellant's counsel did not dispute the amount of the loss incurred by the complainant. The complainant is not a party to these proceedings and it would be inappropriate to attempt to resolve now the various complaints the appellant has against the complainant.
112 The point that needs to be reiterated for the benefit of the appellant is that, while the actual loss to the complainant may not be great because the complainant had a first mortgage over the property and had required the appellant to take out mortgage insurance, this does not mean that his offending was not serious. The fact that the impact upon the complainant might have been greater than it was is hardly mitigating. The reality is that the appellant deliberately deceived the complainant into advancing a substantial amount of money in circumstances where, had it known the truth, it would not have done so. As a result of this, the complainant has been put to considerable trouble and expense in recovering its money. That most of the complainant's loss has been covered by insurance, while fortunate for the complainant, still means that the complainant's loss has been, in effect, transferred to an insurer.
113 As the proposed additional evidence is insufficient to justify the imposition of a different sentence, the applications filed by the appellant to adduce new evidence on 3 June 2014, 11 July 2014 and 22 August 2014 must be dismissed.
114 Contention 6 is not reasonably arguable.
The application for bail pending appeal
115 This may be dealt with briefly. It will be apparent that none of the grounds of appeal have merit. In these circumstances, the grant of bail pending the determination of the appeal would have been inappropriate.
Conclusion
116 In my opinion, none of the proposed grounds of appeal have any reasonable prospect of succeeding. Accordingly, leave to appeal in respect of each ground cannot be granted. As leave to appeal cannot be granted in respect of any ground, the appeal must be dismissed.
117 HALL J: I joined in the decision to dismiss the application for bail on 4 August 2014 and the decisions to dismiss the remaining applications on 9 September 2014. My reasons for doing so are substantially the same as those expressed by Mazza JA.
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