Barnard v The King
[2025] WASCA 63
•30 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BARNARD -v- THE KING [2025] WASCA 63
CORAM: MAZZA JA
MITCHELL JA
HALL JA
HEARD: 10 MARCH 2025
DELIVERED : 30 APRIL 2025
FILE NO/S: CACR 61 of 2024
BETWEEN: TRAVIS PAUL BARNARD
Appellant
AND
THE KING
Respondent
FILE NO/S: CACR 60 of 2024
BETWEEN: TRAVIS PAUL BARNARD
Appellant
AND
THE KING
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MacLEAN DCJ
File Number : IND 1161 of 2022
Catchwords:
Criminal law - Appeal against conviction - Use of equipment connected to telecommunications network to facilitate commission of serious offence, namely fraud - Commonwealth offence - Whether trial judge erred in directing jury as to elements of offence - Whether verdict unreasonable or unsupported by evidence because not open to find appellant obtained a benefit - Whether trial judge erred by directing jury they could not take into account time at which use occurred in deciding whether a benefit had been obtained
Criminal law - Appeal against sentence - Whether sentencing judge erred in making findings of fact regarding surrounding circumstances of offence - Whether sentencing judge erred by failing to make finding that appellant reasonably believed he had an entitlement to funds he was seeking to obtain - Whether sentence of 3 years 10 months' imprisonment with minimum term of 1 year 11 months manifestly excessive
Legislation:
Criminal Code (Cth), s 4.1, s 5.1, s 5.2, s 5.3, s 5.4, s 5.6, s 473.1, s 474.14
Criminal Code (WA), s 409, s 552
Telecommunications Act 1997 (Cth), s 7
Result:
CACR 61 of 2024
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2 and 4 refused
Appeal dismissed
CACR 60 of 2024
Leave to appeal on grounds 1 and 4 granted
Leave to appeal on grounds 2 and 3 refused
Appeal dismissed
Category: B
Representation:
CACR 61 of 2024
Counsel:
| Appellant | : | C Edwards |
| Respondent | : | R Sharp KC & C Moss |
Solicitors:
| Appellant | : | Delta Legal |
| Respondent | : | Director of Public Prosecutions (Cth) |
CACR 60 of 2024
Counsel:
| Appellant | : | C Edwards |
| Respondent | : | R Sharp KC & C Moss |
Solicitors:
| Appellant | : | Delta Legal |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Kabambi v The State of Western Australia [2019] WASCA 44
Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368
Larkin v The Queen [2012] WASCA 238
Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149
Moylan v The State of Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Stevens [1999] NSWCCA 69
Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1
Skelly v The State of Western Australia [2020] WASCA 3
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57
JUDGMENT OF THE COURT:
Summary
On 20 July 2019, Kimberley Heptinstall died unexpectedly at her home, whilst she was recovering from surgery. Several hours after Ms Heptinstall's death, the appellant, who was her domestic partner, used her mobile telephone to access her superannuation account and change the nominated beneficiary to himself. By doing this, he improved his position as a claimant of the funds in that superannuation account.
The appellant was charged with one count of using equipment connected to a telecommunications network to facilitate the commission of a serious offence, namely fraud, contrary to s 474.14(2) of the Criminal Code (Cth). He was convicted after a trial. He was sentenced to 3 years 10 months' immediate imprisonment with a minimum term of 1 year 11 months before being eligible for parole. He seeks leave to appeal against both his conviction and his sentence.
There were originally five grounds of appeal against conviction.[1] Two grounds, grounds 3 and 5, were abandoned at the hearing of the appeal.[2] As regards the remaining grounds, ground 1 alleges that the trial judge misdirected the jury as to the elements of the offence. In essence, the appellant contends that the trial judge erred by directing the jury that it was sufficient if the appellant intended that his acts would facilitate fraud. The appellant submits that the jury in fact had to be satisfied that the appellant's acts had actually facilitated fraud. That is, that it was necessary for the jury to be satisfied that a fraud had in fact occurred as a consequence of the appellant’s actions.
[1] WAB 11 - 15.
[2] Appeal ts 3, 19.
Ground 2 contends that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence because it was not open on the evidence to find that the appellant had received a benefit. By this ground, the appellant contends that the trustee would treat any change to the nominated beneficiary that occurred after the superannuation member had died, as invalid. Thus, the change made by the appellant could never have resulted in him receiving a benefit.
Ground 4 raises a related issue. By this ground, the appellant contends that the trial judge misdirected the jury; or alternatively, failed to adequately direct the jury as regards the effect that the change to the beneficiary had upon the trustee. The appellant submits that the time the change was made was apparent from computer records, and that this would have been known to the trustee. Therefore, the change had no capacity to influence the trustee.
Ground 1 is not established. An offence under s 474.14(2) of the Criminal Code (Cth) is complete if a person uses equipment connected to a telecommunications network to facilitate the commission of a serious offence. A serious offence can be facilitated without being completed. In any event, in this case, the prosecution case was that a fraud had been committed because the appellant had obtained a benefit by making the nominated beneficiary change, in that he had improved his position as a potential beneficiary of the proceeds of the superannuation account.
Grounds 2 and 4 are also not established. At the time the appellant made the change to the nominated beneficiary, Ms Heptinstall's death was unknown to the trustee. The change purported to be one made by Ms Heptinstall herself. The possibility that the actions of the appellant could have been discovered by obtaining information as to the precise time of death and comparing it to the time the change was made, does not mean that the change had no capacity to deceive.
There are four grounds of appeal against sentence. Ground 1 contends that the sentencing judge erred by taking into account as an aggravating factor that the appellant also used Ms Heptinstall's mobile telephone to access her bank accounts after her death and obtained funds from those accounts. Ground 2 alleges that the sentencing judge erred by making a finding that the appellant had initially selfishly declined to give Ms Heptinstall's mobile telephone to her relatives in order to conceal his criminal conduct. Ground 3 alleges that the sentencing judge erred by failing to take into account that the appellant reasonably believed that he was entitled, as her de facto partner, to be treated as the sole beneficiary of Ms Heptinstall's estate. Ground 4 alleges that the sentence of 3 years 10 months' immediate imprisonment was manifestly excessive.[3]
[3] WAB 91 - 92.
As to grounds 1 and 2, the findings made by the sentencing judge were properly open to be made. Evidence that the appellant had used Ms Heptinstall's mobile telephone after her death to access her bank accounts was adduced at the trial to establish that he was the person who had also made the change to the superannuation account using the same mobile telephone. The prosecution relied on the similar time frame and similar dishonest nature of the bank transactions as bearing upon the question of identity. In those circumstances, it was open to the sentencing judge to make the finding that he did that the offence occurred in the context of other dishonest conduct relating to the estate of Ms Heptinstall. It was also open to the sentencing judge to find that the reason the appellant withheld Ms Heptinstall's mobile telephone was to avoid discovery of his criminal conduct.
As to ground 3, the sentencing judge did not, and could not on the evidence adduced at the trial, make any assessment of whether the appellant had a reasonable claim to the superannuation funds. The professed belief of the appellant that he had a reasonable claim to the superannuation funds could not possibly have mitigated the offence. In any event, it is difficult to reconcile the existence of any such professed belief with the making of the false entry.
As to ground 4, the sentence of 3 years 10 months is arguably towards the upper end of the discretionary range. However, we are not satisfied that the sentence is unreasonable or plainly unjust, having regard to the fact that the appellant was convicted after trial; the need for general deterrence in respect of offences of this type; and the size of the ultimate benefit that the appellant was seeking to obtain (approximately $400,000).
Leave to appeal should be granted in respect of ground 1 of the appeal against conviction and refused in respect of grounds 2 and 4. None of the grounds ultimately succeeds and the appeal against conviction should be dismissed.
Leave to appeal should be granted in respect of grounds 1 and 4 of the appeal against sentence and refused in respect of grounds 2 and 3. None of the grounds ultimately succeeds and the appeal against sentence should be dismissed.
More detailed reasons for those conclusions follow.
The prosecution case
Opening
The prosecution case was that as of July 2019, the appellant and Kimberley Heptinstall were living together in a house in Woodbridge. On 16 July 2019, Ms Heptinstall was admitted to hospital for gastric sleeve surgery. She was discharged on 18 July 2019 to recover at home.[4]
[4] ts 54.
On the morning of 20 July 2019, the Midland depot of St John Ambulance received a telephone call to attend to an emergency at the Woodbridge house. Two paramedics attended and found the appellant and Ms Heptinstall at the house. Ms Heptinstall was not breathing and had no pulse. The paramedics attempted resuscitation but were unsuccessful. The time of death was recorded as 8.05 am.[5]
[5] ts 54.
Approximately six and a half hours after the time recorded for Ms Heptinstall's death, the appellant used her mobile telephone to access her superannuation account. The account was accessible using an application for the Retail Employees Superannuation Trust (REST) superannuation fund. The existing beneficiary of the account was the estate of Ms Heptinstall. The appellant removed the name of the estate and replaced it with his own name.[6]
[6] ts 54.
The prosecution case was that in making the change to the beneficiary, the appellant intended to facilitate or cause the commission of an offence against a law of Western Australia, being fraud, contrary to s 409 of the Criminal Code (WA). The prosecution alleged that: the appellant intended to defraud the estate of Ms Heptinstall; he used deceit or fraudulent means by logging on to her account and pretending to be her when he changed the beneficiary; and by those means he gained a benefit.[7] The benefit was described in the following terms in the prosecutor's opening address:[8]
And then the third, whether that deceit or fraudulent means caused [the appellant] to gain a benefit. And the benefit the Crown says that [the appellant] gained is the opportunity for a stronger claim to Ms Heptinstall's superannuation. It's not necessary that [the appellant] was actually successful in getting any superannuation money. Nor does it matter that [the appellant] only gained an improved chance to that money, that there was no certainty that he would get that money.
It is enough that he [gained] the benefit of an improved chance on the basis that the trustee of the superannuation fund was deceived into believing that Ms Heptinstall changed the beneficiary before she passed. So looking at it from the other way. The Crown case is that [the appellant] sought to gain the benefit of the improved chance. He used deceit and fraudulent means to do so. And that he knew he had no right to the improved chance and therefore had the intent to defraud when he made that change.
So it's important to differentiate the fraud with respect to the improved chance and any argument as to whether [the appellant] had a valid claim to the superannuation. You'll not hear an argument as part of the Crown case one way or the other as to proper beneficiary of Ms Heptinstall's superannuation. The charge relates to an intent to defraud where the benefit was that improved chance. The intent to defraud is an intent to bring about a decision which might not otherwise have been made to the detriment of the estate by that fraudulent amendment to the beneficiary.
[7] ts 55 - 56.
[8] ts 56.
The prosecutor noted that in addition to documentary evidence from the REST superannuation fund and evidence from a digital forensic officer regarding the analysis of Ms Heptinstall's mobile telephone, the prosecution would also rely on a number of transactions which occurred on Ms Heptinstall's Westpac bank accounts after her death. The prosecution alleged that these transactions were undertaken by the appellant using the mobile telephone and were relevant to the element of identity, that is, who changed the beneficiary nomination on the superannuation account.[9]
[9] ts 57.
The prosecution alleged that the appellant had used Ms Heptinstall's mobile telephone to transfer money from her bank accounts and had then withdrawn that money and used it for his own benefit. The prosecution relied on these transactions to prove that the appellant had possession of and access to the mobile telephone at the relevant time and to demonstrate that the appellant had a 'sense of entitlement' in respect of Ms Heptinstall's property.[10] In this regard, the prosecutor said:[11]
The Westpac evidence is also on the Crown case relevant to proving whether [the appellant] had an intent to defraud. And the reason the Crown submits that that's the case is because the evidence demonstrates an intention or willingness at the relevant time to access Ms Heptinstall's personal accounts for financial gain and that it also is relevant because [the appellant] initially denied using Ms Heptinstall's Westpac accounts or conducting transactions on those Westpac accounts and then made subsequent admissions to doing so.
And it is the Crown case that that is relevant to your assessment of whether [the appellant] had an intent to defraud with respect to the Rest Superannuation charge. The third reason the Crown says that the Westpac evidence is relevant to the intent to defraud is that the Crown says that [the appellant] deleted a number of things off Ms Heptinstall's phone prior to handing the phone back to Ms Heptinstall's family. One of those things was the Westpac application.
The other was the Rest application. And the Crown says that's also circumstantial evidence that's relevant.
Finally, the Crown says that the Westpac evidence is relevant to rebutting any innocent explanation given by [the appellant] for accessing and altering the Rest Superannuation account details. To be clear as his Honour directed you, [the appellant] has a right to silence. He need not say anything or proffer any explanation, but that is one of the uses if he does so that you can use that evidence for, that Westpac evidence.
[10] ts 57.
[11] ts 57 - 58.
Closing
When addressing the element that 'in doing so' the appellant 'intended to facilitate or cause' the commission of the offence of fraud in closing the prosecutor said:[12]
And so to prove that [the appellant] intended to commit that offence, the Crown must prove three things:
That in doing the alleged conduct, that is, making the change to the beneficiary, [the appellant's] state of mind, that he intended to defraud the estate of Ms Heptinstall.
Second, whether he is deceit or fraudulent means. Now, on the Crown case he did that, in effect, by logging into Ms Heptinstall's account, purporting to be her, and making the change to the beneficiary.
And third, whether the deceit or fraudulent means caused [the appellant] to gain a benefit. On the Crown case, that is a stronger claim to Ms Heptinstall's superannuation, a better chance at receiving that superannuation money when the trustee made the trustee's determination.
[12] Closing ts 2 - 3.
Later in closing, the prosecutor put the Crown case as to the fourth element in the following manner:[13]
In my opening I broke the fraud down into three parts, and we'll discuss those now, but in a slightly different order. The first is that [the appellant] used deceit or fraudulent means. And whether something is done by deceit or fraudulent means is a matter for you.
It's what's called an objective test. You, as the jury, assess that conduct and you make a decision as to whether you consider it to be deceit or fraudulent. And I submit that if you find that [the appellant] logged into Ms Heptinstall's PIN-code protected or biometric-protected account, and in effect pretending to be her, you'll be satisfied that that was deceit or fraudulent means. It doesn't matter that it was subsequently detected. A deceit or fraudulent means is assessed at the time of the conduct.
The second, second part, that he used the deceit or fraudulent means in order to gain a benefit, that the deceit was done in order to get the benefit. And the benefit, as I've explained, is that stronger claim to the superannuation.
And you heard the evidence of Mr Le from Rest Superannuation that being recorded as the spouse of a member would be evidence that the trustee would take into account when assessing whether a person was a dependent or not. And that dependents receive priority in the distribution of superannuation funds.
The final part of the fraud was whether [the appellant] intended to do so, whether he had an intent to defraud the estate. (emphasis added)
[13] Closing ts 8 - 9.
In this manner, the prosecution accepted the onus of proving that the appellant gained a benefit, being an improved chance of being paid the benefit by the superannuation trustee, and that he acted with the intention of obtaining a stronger claim.
Relevant evidence
It is unnecessary for the purposes of this appeal to canvass all of the evidence at the trial. Although one of the grounds of appeal against conviction is that the verdict was unreasonable or unsupported by the evidence, that ground relies specifically on the evidence as to the effect of the change of beneficiary. The evidence pertinent to the grounds of appeal is as follows.
Sanketh Appaiah
Mr Appaiah is an employee of REST superannuation fund. His responsibility is for the REST mobile application, and entails ensuring that the product changes, self‑service tools and user experience of the application run smoothly. The REST mobile application is similar to other banking mobile applications and allows members to look at their superannuation balance and provides self‑service tools, such as updating contact details, making investment switches and managing beneficiaries. The application is available on android devices, including Samsung Galaxy mobile telephones.[14]
[14] ts 105.
Once the application is downloaded, a member must complete a two‑step verification process before they can view information pertaining to the account. The first step is to identify the user as a REST member. That can involve either entering a username or a password, or entering personal details such as the user's first name, date of birth and postal postcode. Once the system has identified the user as a REST member, a one‑time PIN is sent to either the mobile number or the email address that REST has on file.[15]
[15] ts 105 - 106.
Once a member has done an initial verification login, they need to set up some security controls. One of those is setting a four‑digit PIN. That PIN must then be entered to access the information in the application. A biometric login, such as facial or fingerprint recognition, can also be used.[16]
[16] ts 106.
One of the changes that can be made by a member using the application is to the beneficiary details. A member can complete a non‑binding beneficiary form that allows for the addition, updating or deletion of non‑binding beneficiaries.[17] The significance of 'non‑binding' as opposed to 'binding' beneficiaries was explained by another witness, Mr Le.[18]
[17] ts 106 - 107.
[18] See the evidence of Quoc Dung Phillip Le, ts 119.
Once a request to change beneficiary details has been entered on the application, the information is then updated on the main database. This triggers an automatic email to the member's email address to confirm that this change has been made. This provides tracking information to say that a member has performed this particular transaction on a particular device, at a particular date and time.[19]
[19] ts 107 - 108.
In cross‑examination, Mr Appaiah said that the delay between a change being submitted on the application, and the update occurring on the REST database, would be 'a couple of seconds'. He said that a request like updating of beneficiaries was 'an instant request' and if successful, the user would see the updated information at the front end of the mobile application.[20]
Quoc Dung Phillip Le
[20] ts 110 - 111.
Mr Le is the head of first line risk at Retail Employees Superannuation Pty Limited. That company is the trustee of the Retail Employees Superannuation Trust.[21]
[21] ts 115.
Mr Le produced the trust deed relating to the superannuation trust, including annexure A, which sets out the rules governing the trust. Where a member of the superannuation fund dies, there may be an entitlement to a death benefit. This can comprise two parts: first, any contributions that the member or their employer has paid into the fund; and second, any insurance payment due if the member's account includes a life insurance policy.[22]
[22] ts 116, 118.
Mr Le gave the following evidence as to what occurs in the event of a member's death, by reference to r 9 of the Trust Deed Rules:[23]
And so does - does that clause deal with what happens when the member dies?---Yes. So what happens when the member dies, depending on their beneficiary nomination, that - that clause will deal to that. So you have a non‑binding nomination or a binding nomination.
What's the difference?---So a non‑binding nomination is not binding on Rest. It acts as a guide on who we determine should receive the member's death benefit. So that's the part around the trustee discretion. In the binding nomination, so that's you know, the member has the final say on who the super should be paid to, as long as it's a valid nomination. So a nomination needs to be a dependent, like a spouse, child, or financial dependent of the member, or a legal person representative, say executor for the Will.
I'll just take you back to the non‑binding nomination. You referred to a trustee discretion. Does that mean the trustee has the - - -?---Correct.
- - - final choice as to what happens with that - or that - the funds in the - which stand to the member's benefit?---Yes. So the trustee must pay to a dependent or financial dependent in accordance with the SIS Act, that's why the trustee has that discretion. So they must consider all this before making the payment.
Can a member of - in 2019, could a member of Rest change a non‑binding beneficiary nomination?---They can. They can change at any time and there's different ways they can change it, say through our member online portal, the Rest App or a nomination form.
How is a binding nomination made?---So a binding nomination can only be done by the - the nomination form, and that's because it needs to be witnessed by two witnesses.
And so in the case of a member dying without a Will, what does the trustee of the Rest Superannuation Fund do?---So the trustee will consider the beneficiaries, so a dependent, a financial dependent, any person who has an interdependency relationship with the member. So they'll consider any dependent of the member's before they consider any non‑dependent beneficiaries. So they'll go through those steps to determine who those dependents are and then make a determine [sic] on who to pay it to.
[23] ts 119 - 120.
In the case of Ms Heptinstall, her initial application for membership was dated 12 October 2009. In that application, she ticked an option indicating that she had no dependents and that she wished any funds to be paid to her estate in the event of her death.[24] Mr Le was then asked:[25]
So what would have happened from a Rest perspective looking at that form?---So looking at this form, Rest would still have made a discretion on who to pay to. So at the time of the member's death, they would look to see if there's any dependent before they make a decision to pay to the estate. So it's the member's situation at the time of death.
[24] ts 120 - 121.
[25] ts 121.
In cross‑examination, Mr Le was asked about the nature of the discretion vested in the trustee, particularly in regard to non‑binding nominations. He said:[26]
Mr Le, you said that the trustee has got a discretion when dealing with non‑binding nominations, right?---Yep.
Okay. Is that yes?---Yes.
All right. Now, when exercising their discretion, you also said that you primary look at dependency situation, right?---Yep - yep.
And you also said that when the nominated - nominated non‑binding beneficiary is the estate, it's not binding on the trustee - - -?---Correct.
- - - to transfer the funds to the estate?---Correct.
So you still have discretion to distribute, right?---The trustee will have discretion. That's correct.
[26] ts 122.
Later in cross-examination, Mr Le confirmed that changes to a non‑binding beneficiary could only be made during the life of the member.[27] He was then asked:[28]
What happens if it's changed after the death of the member?---So if it was changed after the death of the member, we would - well, the short answer is it's still a non‑binding beneficiary. The trustee will have discretion. That means that the trustee still needs to do our - you know, the trustee needs to do the full review to see who are the dependants of the member and make a determination who to pay it to. So even if it was changed, the trustee still needs to look through who's all the dependants of the members - member before making that determination.
So if the change happened after the death, would you treat the changed beneficiary with preference to the others?---No.
Okay?---No, we wouldn't.
Would it be fair to say that any nomination received after the death of a member is invalid?---Sorry, can you repeat that?
Would it be fair to say that any nomination received after the death of the member - of a member is invalid? You treat it as invalid?---That's correct. We treat it as invalid.
And would have no bearings on your decision how to distribute or your - or - yeah?---Correct.
[27] ts 123.
[28] ts 123.
In re‑examination, Mr Le gave the following evidence:[29]
Mr Le - - -?---Yep.
- - what impact would a non‑binding beneficiary nomination have if made during a member's lifetime?---We'll still (indistinct) they can make it non‑binding. We'll still take their view of who the non‑binding - who they've got as a beneficiary, but at the end of the day, we need to determine who's the dependant and make a decision on who to make the payment to. So we'll take it as a guide but we don't need to - you know, if we determine that the non‑binding beneficiary, you know, is invalid or there's other dependants who need - who should have the money who should - the - the death benefit should go to, we'll take that into serious consideration.
So your evidence was that you would take it as a guide. Is that right?---Correct.
So the trustee would be - by that, do you mean the trustee would be inclined to follow the member's nomination unless there is a reason not to?---You can say that. But we would actually look at all the other dependants to see, you know, who - who should have the member's death benefit. So let's say they chose a child as a non‑binding beneficiary and later on in life, they have a spouse let's say. We'll take all of that into consideration before making that determination.
Where there is a non‑binding beneficiary though, what is the trustee's starting point in exercising the trustee's discretion?---It's always - it always comes back down to what (indistinct) - - -
[29] ts 123 - 124.
There was an objection before the evidence resumed:[30]
So, Mr Le, my question was what is the - where there is a non‑binding beneficiary made during a member's lifetime, what is the trustee's starting point in exercising the trustee's discretion?---So the trustee would look at all dependants and financial dependants at the time of the member's death as defined under the SIS Act and then we'd make a decision based on getting all that information. So we'll go out to all those dependants and financial dependants.
Where there is a non‑binding beneficiary and no reason to go out to the non‑binding beneficiary, what does the trustee do?---Sorry, can you just repeat that question?
Where there is a non‑binding beneficiary and no reason - I'll - I'll actually rephrase that question. Where there is a non‑binding beneficiary and no reason that the non‑binding beneficiary is invalid, how would the trustee exercise its discretion?---It's still the same process where we'll go out to all dependants and financial dependants to get a view on that.
[30] ts 125.
Mr Le was recalled later in the trial and gave the following evidence:[31]
[31] ts 191 - 192.
Thanks for coming back, Mr Le. I have a couple of additional questions. When a trustee is distributing funds following the death of a member, is there an order of precedence with respect to the people - - -?---There is.
- - - who are to receive those funds?---There is. So what we'll look at is financially dependent(?)10.08.01. This is the order, so financial dependents and then if there's no financial dependents we'll look at dependents, and then legal person representatives, so LPR, and then non‑dependents lastly.
Okay. I'll break that down. What is a financial dependent?---So the dependents are financially dependent on the actual member so they have a - so they have a financial dependency on that - that member.
What is a dependent?---A dependent can be a child who - or could be any dependents who are not - they're dependents but they're not financially dependent on that member.
What are some of the relationships of a dependent?---It could be a spouse, it could be a child. It could be a person that's in - in - in - in the relationship with the member or, yeah, it could be - that's - yeah, that's pretty much it, actually.
A spouse or a child?---Spouse, child or anyone that's in a - in a - in a dependent relationship.
What is a legal personal representative?---That's a person who's the executor of the will.
Sorry, could you speak up just a little?---It means that it's the person who's the executor of the will.
Thank you. So your evidence yesterday was that the trustee would consider all evidence in considering who the proper beneficiary of the death benefit money was. Is - is that accurate, that summary?---Yes.
So if the trustee believed that a deceased member had defined their relationship with another person as spouse, would that be evidence that the trustee would consider in assessing whether that person was a dependent?---Yes.
And looking at that evidence alone, what impact would that evidence have on the trustee's assessment of whether the named person was a dependent?---It would give a - it would give more weight to the argument around who should receive the money if the member provides a beneficiary as the spouse. (emphasis added)
Other evidence
Exhibit 11 was printouts of the beneficiary selection entries made by the appellant in the REST application on 20 July 2019.[32] These show that an entry had been made at 4.41 pm that day (2.41 pm WST), changing the non‑binding beneficiary nomination by deleting reference to the estate of Ms Heptinstall, inserting the full name of the appellant, describing his relationship to Ms Heptinstall as 'spouse' and providing that he was to receive 100% of the benefit.
[32] BGAB 532 - 535.
There was evidence that the appellant had called REST on the general enquiry line on 24 July and 25 July. In the first call, the appellant advised that Ms Heptinstall had passed away and said that he had only found out which superannuation fund she was with by going through her emails. He enquired about making a claim and described himself as Ms Heptinstall's fiancé. He asked whether anyone had been 'delegated' on the account and whether it could go to 'anyone at all'. He was told that a claim specialist would call him back in the next day or two. He was asked to confirm his full name, and he enquired how the operator knew his middle name and whether it was on file.[33]
[33] BGAB 536 - 538.
In the second telephone call to REST, the appellant said that he wanted to lodge a Notice of Claim. He asked about the process and 'who did she put as the beneficiary?'. He was told that that information could not be revealed for privacy reasons. Some preliminary information was then provided to progress a claim. He was told that any claims would be assessed and reviewed by the trustee, who would make a decision on whom to pay the benefits to.[34] The appellant then said:[35]
I guess, in a way, it really does depend on who Kimberley put down, I guess. That's - that's - like - like I said, I wouldn't, - I wouldn't have a clue. I just - yeah, I'm just - just trying to, like, I guess I'm just trying to, like, get everything done and sorted so, um, yep. No dramas. Um, now in the email - in the - in the forms as well, they'll - they'll have [an] email - I mean you'll have a, um - a postal address for me to send all the paperwork back through to you.
[34] BGAB 542 - 548.
[35] BGAB 548.
The appellant later submitted a death benefit claim signed on 7 August 2019. In that claim, he described his relationship with Ms Heptinstall as her 'de facto partner' of two years six months duration.[36]
[36] BGAB 553 - 562.
Appeal against conviction - grounds of appeal
The grounds of appeal are as follows:[37]
[37] WAB 11 - 15.
1.Error of Law - The Honourable Trial Judge made an error of law by misdirecting the jury as to the elements of the offence.
Particulars
a.The relevant offence is s 474.14(2) Criminal Code (Cth), and the 'serious offence' for the purpose of s 474.14(2)(b)(i) Criminal Code (Cth) is s 409 Criminal Code (WA) ('fraud').
b.At page 395 of the transcript, the Honourable Trial Judge directs the jury that there are 5 elements of the offence, including that 'The fourth is that in doing so, [the appellant] intended to facilitate or cause the commission of an offence against a law of Western Australia.'
c.The Honourable Trial Judge's statement of the fourth element is incorrect: intention is insufficient. s 474.14(2) requires that an accused actually commit or facilitate a serious offence.
d.The Honourable Trial Judge repeats the error twice more in the last two paragraphs of page 397 of the transcript.
2.Error of mixed fact and law - The verdict is unreasonable, or cannot be supported, having regard to the evidence, because it was not reasonably open on the evidence to find that [the appellant] received a benefit within the meaning of s 409(1)(c) Criminal Code (WA).
Particulars
a.The benefit claimed on the prosecution's case, was that by altering Ms Heptinstall's beneficiary details, [the appellant] improved his prospects with respect to the trustee's decision as to whether to exercise its discretion in [the appellant's] favour.
b.The prosecution case that [the appellant] gained a benefit was circumstantial, and requires that the jury infer from evidence that material exists on the Aspire Core database and was available to the trustee, and evidence as to the trustee's general policies and practices, that the person exercising the trustee's decision making responsibilities made use of material that was relevant and available.
c.The evidence and inferences necessary to the prosecution's circumstantial case also support a plausible scenario inconsistent with guilt, specifically, that the person exercising the trustee's decision-making responsibility was informed by the tracking information in the database that the beneficiary change was entered after Ms Heptinstall's death, and therefore treated the entry as invalid:
i.Each page of the database states time and date of the most recent change to the information displayed.
ii.The beneficiary information in the database is accompanied on each screen by a notification that the information was last updated after 4:40 pm on 20 July 2019.
iii.The trustee was at all times aware that Ms Heptinstall passed on 20 July 2019.
iv.Changes to beneficiary information entered after a member has passed, are treated as invalid.
v.The trustee does not examine or consider entries and alterations to the Rest database at the time of entry, and that the first time any person looks at the information entered is after a claim is made on the account.
d.In the absence of evidence from any person claiming to exercise the trustee's decision‑making responsibility with regards to Ms Heptinstall's superannuation death benefit, there is no evidentiary basis for any non‑speculative inference that the person who exercised the trustee's decision-making responsibility selectively informed themselves of some relevant information from the Aspire Core database, but not other relevant information available on that database.
e.The likelihood that the person exercising the trustee's decision‑making responsibility treated the changes to the beneficiary details as invalid, cannot be reasonably excluded as implausible without also rejecting the prosecution's circumstantial case.
…
4.Error of law - The Honourable Trial Judge erred by directing that (at page 408 and 409 of the transcript), as to the possibility of whether the trustee treated [the appellant's] nomination as invalid, the jury might consider the relevance of Mr Le's evidence 'against the issue as to whether or not the trustee was answering that question in circumstances where it was aware that the change had been made following the death, as opposed to not being aware that the change was made post death and not being aware that the change was made by someone other than the beneficiary'.
OR IN THE ALTERNATIVE
In making these remarks, the Honourable Trial Judge should have also given a direction to the jury:
a.That in this context, they may consider the evidence of Mr Appiah and Mr Burke as to the information available to the trustee showing that the changes were made after Ms Heptinstall's death, and the tracking information visible on every page of Exhibit 11.
b.That the relevance of the issue to the defence, was that if the person exercising the trustee's decision‑making responsibility was informed by the tracking information available to the trustee, then that may indicate the trustee was aware that the change was made by someone other than the beneficiary.
c.That there was no evidence from any person claiming to be the person who exercised the trustee's decision-making responsibility for Ms Heptinstall's superannuation, and that in considering whether the trustee was not aware that the changes made by somebody other than the beneficiary, they must not draw inferences against the accused that are based on mere conjecture.
d.That the onus fell on the prosecution to prove beyond reasonable doubt that the trustee was not aware that the change was made by somebody other than the beneficiary.
(original emphasis)
Ground 1 - statutory provisions
Section 474.14 of the Criminal Code (Cth) provides as follows:
474.14Using a telecommunications network with intention to commit a serious offence
(1)A person commits an offence if:
(a)the person:
(i)connects equipment to a telecommunications network; and
(ii)intends by this to commit, or to facilitate the commission of, an offence (whether by that person or another person); and
(b)the offence is:
(i)a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii)a serious offence against a foreign law.
(2)A person commits an offence if:
(a)the person uses equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, an offence (whether by that person or another person); and
(b)the offence is:
(i)a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii)a serious offence against a foreign law.
(3)A person who commits an offence against subsection (1) or (2) is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.
(4)Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute liability, see section 6.2.
(5)A person may be found guilty of an offence against subsection (1) or (2) even if committing the serious offence is impossible.
(6)It is not an offence to attempt to commit an offence against subsection (1) or (2).
Offences under the Criminal Code (Cth) consist of physical and mental elements. The law that creates the offence may provide different fault elements for each physical element. The provisions of pt 2.2 of the Criminal Code (Cth) are of general application. Subject to any contrary provision, they provide for the fault elements that apply to the physical elements of any offence. Section 4.1 provides:
(1)A physical element of an offence may be:
(a)conduct; or
(b)a result of conduct; or
(c)a circumstance in which conduct, or a result of conduct, occurs.
(2)In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a)do an act; or
(b) omit to perform an act.
(original emphasis)
Sections 5.1, 5.2, 5.3, 5.4 and 5.6 provide:
5.1Fault elements
(1)A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2)Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2Intention
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4Recklessness
(1)A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2)A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
…
5.6Offences that do not specify fault elements
(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
(original emphasis)
Definitions of some of the terms used in s 474.14 can be found in s 473.1. In particular, 'connected' in relation to a telecommunications network, includes connection otherwise than by means of physical contact (for example, a connection by means of radiocommunication). The phrase 'serious offence against a law of the Commonwealth, a State or a Territory' means an offence against a law of the Commonwealth, a State or Territory that is punishable by imprisonment for life or imprisonment for a period of 5 or more years. The phrase 'telecommunications network' has the same meaning as in the Telecommunications Act1997 (Cth), namely a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.[38]
[38] Telecommunications Act 1997 (Cth), s 7.
Fraud is an offence under s 409 of the Criminal Code (WA) which is punishable by imprisonment for 7 years.[39] Relevantly, fraud will be committed where a person, with intent to defraud, by deceit or any fraudulent means, gains a benefit, pecuniary or otherwise, for any person. The offence of attempted fraud is punishable by half the penalty of the principal offence, namely 3 years 6 months' imprisonment.[40]
[39] Criminal Code (WA), s 409(1)(h). A higher maximum penalty of 10 years is provided for where the victim is of or over the age of 60 years: see s 409(1)(g).
[40] Criminal Code (WA), s 552(2)(b).
Ground 1 - trial judge's directions
After explaining to the jury that the prosecution bore the onus of proving each and every element of the offence beyond reasonable doubt, the trial judge identified the elements of the offence:[41]
[41] ts 395 - 399.
There are five elements that make up this charge although the fifth element, that is, the allegation of fraud, contains a further three elements. The prosecution must prove each of those elements beyond reasonable doubt. The first is identity. The second is the use of equipment connected to a telecommunications network. The third is an intention for the equipment to be connected to the network.
The fourth is that in doing so [the appellant] intended to facilitate or cause the commission of an offence against a law of Western Australia. And the fifth is the particular offence alleged, and that is fraud. And I direct you, as a matter of law, that fraud is a serious offence against a law of Western Australia, and I'll provide directions as to the three further elements the Crown must establish in order to prove fraud.
The first element is the element of identity, and this must be proven beyond reasonable doubt. The prosecution must prove, beyond reasonable doubt, that the person who did the acts that constitute the offence is the accused man, [the appellant], and not some other person. That is in issue here. [The appellant] has given evidence that he did not connect to a telecommunications network. He did not access the Rest application using Ms Heptinstall's credentials. He did not change the nominated beneficiary. So you will be asked to make, and must make a finding as to who it was that did these things. If you're not satisfied beyond reasonable doubt that it was [the appellant], you could not find him guilty.
The second element, members of the jury, that the Crown must prove beyond reasonable doubt is that [the appellant] used equipment connected to a telecommunications network. The particular equipment was a Samsung mobile phone and the telecommunications network was the Telstra network. It is a matter entirely for you, members of the jury, but it appears to be open on the evidence to find that there was a Samsung phone, that it had belonged to Ms Heptinstall, and that it was connected to a Telstra telecommunications network.
The issue is whether [the appellant] used the equipment, that is, the Samsung, in the way that is alleged by the Crown, that is, that he connected the equipment to a telecommunications network, that he accessed the Rest application using Ms Heptinstall's credentials, and that he changed the nominated beneficiary, replacing Ms Heptinstall's estate with himself.
A person has an intention with respect to conduct if he or she means to engage in that conduct. The prosecution must satisfy you beyond reasonable doubt that when [the appellant] used the phone and connected to the Rest application, he did so intentionally. [The appellant] denies any intention. He says that it did not happen. He did not use the phone. He denies connecting the phone to the Rest application. And this element is in issue. The Crown must prove the element beyond reasonable doubt, and you will have to decide it. You could not convict [the appellant] unless you were so positively satisfied.
This element requires proof of [the appellant's] state of mind, that is, his belief. And you will need to draw inferences from all of the evidence as to what [the appellant's] intent, in fact, was, in order for the prosecution to satisfy you on this element beyond reasonable doubt. You would only consider this element if you were satisfied beyond reasonable doubt that [the appellant] did use Ms Heptinstall's Samsung phone. And I remind you that you can only draw an inference adverse to an accused person if it is the only reasonable inference available on all of the evidence. If there is an inference consistent with innocence, then you cannot draw the inference that is consistent with guilt.
And this direction concerns the meaning of intention. A person has an intention in respect to a result if the person means to bring it about. The prosecution must prove beyond reasonable doubt that [the appellant] intended to log onto the Rest application to use Ms Heptinstall's credentials and represent that it was her, and to make the change to the non-binding nominated beneficiary. The prosecution must prove to you beyond reasonable doubt that [the appellant] had that intention. It is not enough for the prosecution to establish that the phone was used.
It is not enough to prove that the Rest application was accessed. It must prove, beyond reasonable doubt, that [the appellant] logged on, that he represented it was Ms Heptinstall by using her credential, and that he made the change. And the prosecution must prove beyond reasonable doubt that [the appellant] had this intention at the time that he logged on. And the Crown case is that this was deliberate, intentional conduct by [the appellant].
The defence position is that [the appellant] did not act in this way and that if it did happen, it was not [the appellant] who did it. This use and [the appellant's] intent to use the equipment in the way alleged are things that the Crown must prove beyond reasonable doubt. And I'll remind you, members of the jury, of the direction I gave you moments ago about the drawing of inferences in a criminal trial, and that you can only draw an inference adverse to [the appellant] if that inference is the only reasonable inference available on the evidence.
With respect to the first element of identity, and the second element of the use of the equipment, the prosecution would need to exclude as a reasonable inference available on the evidence, that [the appellant] accidentally did the conduct alleged, or that someone else logged on to it by using the credential and made the change.
If the prosecution has not excluded, as a reasonable possibility, that [the appellant] accidentally did the conduct alleged, or that someone else logged on by using the credential and made the change, then your verdict would be not guilty. And, again, [the appellant] does not have to say, do or prove anything. Rather, at all times, the obligation is on the Crown to prove its case and the obligation is on the Crown to exclude any reasonable inference available on the evidence that [the appellant] did not accidentally perform the change, or that someone else logged on and made the change. And when you draw inferences, members of the jury, you do so on the basis of the evidence as a whole and not on a piecemeal basis.
The third element, members of the jury, is that [the appellant] used the carriage service intentionally, that is, that he intended for the equipment to be connected to the telecommunications network. The fourth element is that in doing the conduct alleged, [the appellant] intended to facilitate or cause the commission of an offence against a law of Western Australia, namely, fraud, that is, the conduct was done for that purpose.
The fifth element is that the offence [the appellant] intended to commit by his conduct in using the equipment was fraud and is an offence against a law of Western Australia which is a serious offence. And as a matter of law, fraud is a serious offence. The elements of fraud are these, members of the jury. First, the Crown must prove that [the appellant] had an intention to defraud. To 'defraud' someone means to deprive someone of their property, or to put their property at risk by dishonest means.
It is not sufficient for the Crown to prove that [the appellant] was careless or that he did not have a reasonable basis for logging on using Ms Heptinstall's credentials and substituting himself for her estate. The Crown must prove that [the appellant] knew that what he did in doing that was dishonest. To prove that [the appellant] had an intention to defraud, the Crown does not have to prove that [the appellant] had an intention to cause a financial loss.
Intention to defraud can exist, even though there is no intention to cause economic loss, where there is an intention to, by dishonest means, deprive another person of that person's property, or of the opportunity to protect that person's interests. It can exist, even where an accused person genuinely believes there will be no loss because the transaction will ultimately be to the advantage of all concerned, including the person whose property was put at risk.
The second element that the Crown must prove is that [the appellant] used deceit or fraudulent means. Something is 'deceitful' if it is false to the knowledge of the person putting it forward. A 'means' is 'fraudulent' if it is dishonest to the knowledge of the person putting it forward. The Crown must prove that [the appellant] was dishonest, according to the standards of ordinary, decent people, and that's why you're here, members of the jury, to determine those standards insofar as your findings of fact go.
And the Crown case is that by accessing Ms Heptinstall's phone after her death, logging in and changing the non‑binding nominated beneficiary from Ms Heptinstall's estate to him, that he acted dishonestly. Of course, you will recall that [the appellant's] position is that he did not access the phone, and he gave evidence of that position. And again, I use the word 'position' because [the appellant] does not have an obligation to say or do or prove anything. But you'll remember that his evidence was that he did not access the phone, he did not access the Rest application, he did not change the non‑binding beneficiary.
The third element that the Crown must prove is that [the appellant] gained a benefit from that deceit or fraudulent means. The benefit alleged in this case was the opportunity for a stronger claim to Ms Heptinstall's superannuation. The Crown do not have to prove that [the appellant] was actually successful, nor does it matter that he gained only an improved chance of getting the money. The Crown case was that he gained the benefit of an improved chance on the basis that the nomination would have appeared to the trustee of the superannuation fund to be a nomination by Ms Heptinstall, describing [the appellant] as her spouse before she passed.
(emphasis added)
Ground 1 - appellant's submissions
The appellant submits that the trial judge erred when referring to the fourth element of the offence. In referring to that element, the trial judge said that what had to be proven was that the appellant 'intended to facilitate or cause the commission of an offence'. The appellant submits that this direction was inaccurate because a mere intention to facilitate the commission of an offence is insufficient. What was required was that the appellant had used a telecommunications service to actually commit or facilitate the commission of an offence. The appellant says that there is no reference to intent or intention in s 474.14(2)(a), and nothing in it that invites reading it down such that a mere intent is sufficient.[42]
[42] WAB 16 - 21.
The appellant supports his argument by contrasting the wording of s 474.14(2)(a) with s 474.14(1)(a)(ii). The latter subsection expressly provides that an intention is sufficient. The appellant submits that it can only be assumed that the omission of the reference to intention in subsection (2) was deliberate. This is said to lead to the conclusion that an intention to facilitate a serious offence is not enough. It is necessary to show that a serious offence has in fact been facilitated.[43]
[43] WAB 17.
The appellant also notes that s 474.14(6) stipulates that an attempt to commit an offence against s 474.14(2) is not an offence. Furthermore, attempted fraud under the Criminal Code (WA) does not constitute a serious offence within the meaning of s 474.14(2)(b). Thus, the appellant argues that the effect of the trial judge's directions was to instruct the jury that they could convict the appellant if what he did amounted to an attempted fraud, without requiring them to consider whether an actual fraud had been committed.[44]
[44] WAB 17.
The appellant submits that the benefit claimed by the prosecution at trial was of the kind referred to in Moylan v The State of Western Australia.[45] That is, the appellant accepts that a benefit can include an advantage or an opportunity independent of whether the potential gains from that opportunity are fully realised. Here, the prosecution case was that the appellant gained the opportunity for a stronger claim to the superannuation benefit by improving his prospects as compared to other potential beneficiaries. The appellant describes this as a qualified opportunity, analogous to that referred to in Moylan. However, the appellant says that nothing in Moylan suggests that there is no distinction between gaining a benefit and merely intending to gain a benefit.[46]
[45] Moylan v The State of Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302.
[46] WAB 19 - 20.
A person can unsuccessfully attempt to gain an opportunity just like any other benefit. The nature of the benefit in this case is said to compound the risk of misjustice. The appellant suggests that a jury could reasonably have been confused as to whether, when told that it was unnecessary for the prosecution to prove that the appellant was actually successful, this meant they did not have to be satisfied that he successfully gained the money, or whether it meant it did not matter whether or not he had successfully deceived the trustee in a manner that improved his position as a potential claimant.[47]
[47] WAB 20 - 21.
Ground 1 - respondent's submissions
The respondent submits that the criminality targeted by s 474.14(2) is the use of a device connected to a telecommunications network in the commission of, or to facilitate the commission of, criminal activity, as distinct from the criminal activity itself. It is incorrect to assert, as the appellant does, that there is a further physical element to the offence, being the actual commission of the relevant serious offence.[48]
[48] WAB 53 - 54.
The appellant's construction argument misunderstands the conduct being criminalised and the distinction between the offences in s 474.14(1) and s 474.14(2). Section 474.14(1) criminalises the conduct of connecting equipment to the telecommunications network and makes clear that, at the time of the offender connecting the equipment, they must have had the intention specified. Section 474.14(2) criminalises the use of the equipment with the purpose specified, where that equipment is already connected to a telecommunications network.[49] In light of this distinction, s 474.14(2) is not rendered nugatory if there is no actual serious offence committed (as the appellant contends).[50]
[49] See also Explanatory Memorandum, Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) 2004 (Cth) 29 ‑ 30.
[50] WAB 54 - 55.
Further, the respondent submits that the conduct criminalised by s 474.14(1) and (2) is, in effect, conduct preparatory to the commission of the relevant serious offence. This is also supported by the explanatory memorandum, which refers to 'a broad range of preparatory activities' as being covered by s 474.14(1). The respondent says that, for the same reason, s 474.14(6) provides that a person cannot be convicted of attempting to commit an offence against s 474.14(1) or (2). Such attempt offences are needless given the coverage of preparatory acts. Further, the respondent submits that the construction argued for by the appellant with respect to s 474.14(6) is inconsistent with s 474.14(5), which explicitly provides that a failure to commit the relevant serious offence does not prevent conviction.[51]
[51] WAB 55 - 56.
This means that a person can be convicted of facilitating a serious offence without the serious offence having occurred. Commission of the serious offence is not, therefore, an element of the offence under s 474.14(2) where it is alleged that the act facilitated a serious offence.
In any event, the respondent submits that the appellant's argument is moot. The Crown case at trial was that the appellant had committed the offence of fraud by gaining a benefit, namely being named as the beneficiary, and what flowed from that. It is not an element of the offence against s 409 of the Criminal Code (WA) that the benefit be financial. In the circumstances of this case the jury would necessarily have had to find that the serious offence of fraud had been committed in order to find the appellant guilty.[52]
[52] WAB 50.
The respondent submits that the judge correctly directed the jury. There was no confusion created by telling the jury that it was unnecessary for them to find that the appellant was 'actually successful'. In the context of the trial and the closing arguments by both the prosecution and defence, that phrase would be understood as meaning 'successful in obtaining the funds' as opposed to obtaining the benefit of an improved position. The directions made clear that if the jury found the benefit of an improved position established on the evidence to the requisite standard, then that element was satisfied. There was no error of law with respect to the learned trial judge's directions as to whether the change in the nominated beneficiary was relevantly a 'benefit'.[53]
[53] WAB 58.
Ground 1 - disposition
The offence provided for by s 474.14(2) can be committed in two ways. First, a person may use equipment connected to a telecommunications network in the commission of a serious offence (whether by that person or another person). Secondly, a person may use equipment connected to a telecommunications network to facilitate the commission of a serious offence (whether by that person or another person). The first form of the offence contemplates that the serious offence must have been committed and that the relevant act occurs in the course of the commission of that offence. The second form of the offence is broader and is capable of covering acts which occur before the commission of the serious offence.
In Milne v The Queen,[54] the High Court considered the meaning of the word 'facilitate' in the context of a different provision of the Criminal Code (Cth). The court held that the relevant ordinary meaning of 'facilitate' was 'to render easier the performance of [an action], the attainment of [a result]; to afford facilities for, promote, help forward [an action or process]'.[55] That definition, from the Shorter Oxford Dictionary, applies equally to the word as used in this context. Accordingly, where a person is charged with an offence under s 474.14(2) of using equipment to facilitate the commission of a serious offence, it is only necessary to prove that the act rendered easier the attainment of the serious offence. It is not necessary to show that the serious offence was in fact committed.
[54] Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149.
[55] Milne [33].
This explains why it is not an offence to attempt to commit an offence against s 474.14(1) or (2).[56] The ambit of those offences is broad enough to capture conduct which is preparatory in nature. An attempt to facilitate would be of dubious utility and would risk being too remote from the serious offence to justify criminal sanction.
[56] See Criminal Code (Cth), s 474.14(6).
Putting aside identification – which although a significant issue at trial was not an issue on the appeal – the relevant physical elements of the offence in this case were as follows:
1.The appellant used equipment.
2.The equipment was connected to a telecommunications network at the time the appellant used it.
3.The appellant's use of the equipment was to facilitate the commission of an offence.
4.The offence which the appellant used the equipment to facilitate was a serious offence against a law of the Commonwealth, a State or a Territory.
Element 1 is conduct, for which the default fault element is intention.[57] Element 2 is a circumstance, for which the default fault element is recklessness.[58] Element 3 is the result of the use, for which the default fault element is recklessness.[59] Element 4 is a circumstance, for which the prescribed fault element is absolute liability.[60]
[57] See Criminal Code (Cth), s 5.6(1).
[58] See Criminal Code (Cth), s 5.6(2).
[59] See Criminal Code (Cth), s 5.6(2).
[60] See Criminal Code (Cth), s 474.14(4).
It would have been open to the prosecution to have alleged that the appellant was reckless with respect to his use of Ms Heptinstall's mobile telephone to facilitate the commission of the offence of fraud. That would have required the prosecution to prove that the appellant was aware of the substantial risk that his conduct would facilitate the commission of the offence of fraud and, having regard to the circumstances known to him, it was unjustifiable to take that risk.[61] Proof of intention would also satisfy the fault element of recklessness.[62] However, the prosecutor in opening and closing the Crown case narrowed its scope to allege that the appellant intended to facilitate the commission of the fraud offence.
[61] See Criminal Code (Cth), s 5.4(2).
[62] See Criminal Code (Cth), s 5.4(4).
In the circumstances of this case, it was necessary for the jury to be satisfied that the appellant intentionally used Ms Heptinstall's mobile telephone, being a telephone that was connected to a telecommunications network, to make the change to the beneficiary. It was also necessary for the jury to be satisfied that, in doing so, the appellant facilitated the commission of the serious offence of fraud and intended to do so. The trial judge in this case directed the jury that they had to be satisfied that, in making the entry, the appellant intended to commit fraud.
The appellant seeks to distinguish between an intention to do an act and the actual doing of that act. In the present case it is said that an intention to facilitate fraud would not be enough; it would be necessary for it to be proved that the use of the equipment in fact facilitated the commission of an offence of fraud. The risk is said to be that the jury could have convicted the appellant if satisfied that he acted with the intention of facilitating fraud, without finding that his actions had that effect.
In order to establish that the offence had been committed it was necessary to prove the physical element of facilitation. That is, it was necessary for the jury to be satisfied beyond reasonable doubt that the appellant had used equipment connected to a telecommunications network to facilitate the commission of an offence of fraud. Proof of an intent to facilitate was not enough of itself, though this would establish the fault element of the physical element, for the reasons already explained. The essence of the appellant’s argument is that the directions left it open to the jury to convict the appellant without finding the physical element of facilitation proven. Whether this is so requires a careful reading of the whole of the directions.
It is true that on two occasions in his directions the trial judge referred to it being necessary to prove that the appellant 'intended to facilitate' the commission of an offence of fraud.[63] But the jury were not left with the option of convicting the appellant if he had done no more than have the intention of facilitating an offence of fraud. The trial judge went on to direct the jury that they had to be satisfied that a fraud had in fact been committed by the making of the entry. This was described by the trial judge as the fifth element.[64] Plainly, if the jury were satisfied that the appellant committed fraud by making the entry then facilitation of that offence must have been proven. Whilst this part of the directions was not couched in terms of the physical element of facilitation, it necessarily encompassed proof of that element. Understood in the light of the way the Crown presented its case, this direction would have been understood by a jury to require them be satisfied that the appellant actually obtained the benefit (the opportunity for a stronger claim to the superannuation) and that he intended to do by his use of the connected mobile device. Thus, when taken as a whole, the directions had the effect of ensuring that the jury did not convict unless all the essential elements of the offence were proven beyond reasonable doubt.
[63] ts 395, 397.
[64] ts 397.
Whilst we would grant leave in respect of ground 1, that ground does not succeed.
Grounds 2 and 4 - appellant's submissions
Grounds 2 and 4 essentially raise the same issue. That is, the appellant submits that because, on Mr Le's evidence, any change to the beneficiary after the death of the member would be treated as invalid by REST, no offence of fraud was, or could have been, committed by the change made by the appellant.
The appellant submits that in order to receive a benefit it would be necessary for the change to the beneficiary to have improved the appellant's prospects of receiving the superannuation benefits. It is said that this could only occur if the change could exert some influence over the trust manager's decision‑making process. It is not enough that the appellant intended that the trust manager would believe the entry was made by Ms Heptinstall. The appellant submits that the trust manager needed to be deceived, and for this deception to continue through to the point where the trust manager exercised their discretion regarding the distribution of the funds. Otherwise, this could only be attempted fraud rather than fraud, which would not be a serious offence within the meaning of s 474.14(2).[65]
[65] WAB 22.
The appellant submits that there was no direct evidence presented to the jury indicating that the trustee, or any person exercising the discretion on behalf of the trustee, was ever aware of the material entered by the appellant using the REST application, or was deceived by that information, or took it into account when exercising the discretion. The only evidence related to the use of the mobile telephone application and the trustee's general practices and policies. Where the nomination is non‑binding, the trustee will use the nomination as a guide but maintain ultimate discretion. It will conduct a full review to determine who the member's dependants were in order to make a determination as to who to distribute the funds. The appellant submits that it was readily apparent that the date of the change was 20 July 2019, between 4.40 pm and 4.42 pm. As such a change would necessarily be treated as invalid, it could have no effect on the trustee's decision on how to distribute the superannuation funds.[66]
[66] WAB 23 - 25.
The appellant also submits that the trial judge erred by directing the jury that the evidence that a post-mortem change was invalid needed to be considered in light of the state of awareness of REST that Ms Heptinstall had died when the change was made. The appellant submits that the trial judge should have directed the jury that they should have taken into account the records that showed when the change was made in considering whether the change could have affected the exercise of the discretion by the trustee. The appellant also suggests that attention should have been drawn to the fact that no evidence was called by the Crown to establish that anyone with the power to exercise the discretion was deceived.[67]
[67] WAB 29 - 31.
Grounds 2 and 4 - respondent's submissions
The respondent says that the crux of the appellant's submissions is that the change in beneficiary nomination could have been disregarded by the trustee if discovered to be a post‑mortem change and, thus, the change did not give the appellant the benefit required by s 409. The respondent submits that this contention is incorrect.[68]
[68] WAB 56.
The Crown case as to benefit was that the fraud was committed at the time the appellant was nominated as a beneficiary on the REST system, which, on the evidence, occurred a couple of seconds after the appellant made the change on the application. That change gave the appellant the benefit of an improved position in the superannuation trustee's consideration of the proper recipient of the superannuation funds. The concept of a benefit in s 409 is broad and can encompass being placed in a superior position and includes an advantage.[69]
[69] WAB 56 - 57.
The respondent submits that the appellant's argument misunderstands the point in time at which the fraud offence became complete. The potential for subsequent detection of the fraud does not affect the conclusion that, at the time the beneficiary change was recorded on the REST system, the appellant had gained a benefit.[70]
[70] WAB 57.
Grounds 2 and 4 - disposition
The prosecution case was always that the fraud was complete upon the appellant making the entry to change the nominated beneficiary. The prosecution opened its case on the basis that, by making this change, the appellant obtained a benefit by improving his position as a potential claimant as against other possible claimants.
There might be a question as to the extent to which a change which was merely treated as a 'guide' by the trustee provided any real benefit. The nomination was 'non-binding' and the trustee retained discretion as to the distribution of the funds. However, during the course of the prosecution case, the position was refined following the further evidence from Mr Le. He confirmed that the change appeared to indicate that the member (Ms Heptinstall) had referred to the appellant as her spouse. This was a matter that would be given weight in assessing any claim by the appellant for the superannuation funds. That is how the case was ultimately left to the jury. The correctness of that position is not contested on appeal.
Ground 2
The appellant argues that no benefit could possibly be derived from the change because it could never have had an influence on the trustee. This is said to be because it was made after the death of Ms Heptinstall and would therefore be treated as invalid. There is an obvious flaw in this argument. It assumes that REST would necessarily discover that the change was made after Ms Heptinstall's death.
At the time the change was made, REST was unaware of the death of Ms Heptinstall. The appellant made the entry using Ms Heptinstall's account log in, thus, in effect, falsely pretending to be her. The change was effective and entered into the REST database within seconds of being made. That change included the ostensible nomination by Ms Heptinstall of the appellant as her spouse. The appellant obtained a benefit at that point in time. The possibility that it might later be discovered that the change was made after Ms Heptinstall's death, and, thus, by someone else without authority, does not detract from that conclusion.
The appellant's argument that when the trustee came to consider how to distribute the funds it would be plain that the change was invalid, focuses on the wrong point in time. The fraud alleged was not the obtaining of the funds, but the obtaining of an improved position as a potential claimant. The possibility that the appellant may lose that improved position as a result of enquiries made by the trustee at a later time does not mean that he never obtained a benefit.
As at 20 July 2019, it was not inevitable that the trustee would have appreciated that the change of records was made after the deceased had died when exercising the discretion under the trust deed. It may be accepted that the trustee would inevitably have obtained a copy of the deceased's death certificate before paying a benefit. The date on which the change to REST's records was made was clearly indicated on the record. Therefore, it was inevitable that, in exercising the discretion as to payment of the superannuation, the trustee would necessarily know that the nomination of the appellant as beneficiary was made on the day the deceased died. However, it was not inevitable that the trustee would have been informed or investigated the time of the deceased's death. It is not inherently improbable that a person who is about to die may seek to put their superannuation affairs in order at that time. The trustee would not necessarily appreciate that the change to its records was made hours after the recorded death of the deceased at 8.05 am on 20 July 2019.
Ground 4
The trial judge did not err by directing the jury that Mr Le's evidence regarding the invalidity of a post-mortem entry should be understood in the context of what REST knew at the time the entry was made. The passage of which the appellant complains[71] is merely a comment by the trial judge that the weight the jury gave to Mr Le's evidence that a nomination received after death would be treated as invalid would depend on whether the trustee was aware that the change was made after the deceased's death. The comments were not expressed as a direction of law and made plain that these were matters of fact for the jury to consider. They did not invite the jury to adopt any impermissible chain of reasoning.
[71] ts 408 - 409.
Further, it was not necessary for the trial judge to direct the jury to consider what effect the change had on any person vested with the discretion to decide how the funds would be distributed. Any such direction would have been inconsistent with the Crown case and would have been misleading as to the true issues to be determined by the jury.
There is no merit in grounds 2 and 4, and leave in respect of them should be refused.
Appeal against sentence - grounds of appeal
The grounds of appeal are as follows:[72]
[72] WAB 91 - 92.
1.Error of mixed fact and law - The Honourable Trial Judge erred (at pages 435 ‑ 436 of the transcript) by sentencing [the appellant] on the basis that he accessed Ms Heptinstall's bank accounts after her passing, and that this aggravated the offence.
2.Error of fact - The Honourable Trial Judge erred (at page 436 of the transcript) by finding that Ms Heptinstall's other relatives were 'the people most obviously entitled' to Ms Heptinstall's telephone, and that his resistance to surrendering the phone to those other relatives was selfish conduct that demonstrated knowledge of the proprietary and criminality, and by failing to take into account that [the appellant] was Ms Heptinstall's de facto spouse in this context.
3.Error of mixed fact and law - the Honourable Trial Judge erred by failing to take into account that [the appellant] was Ms Heptinstall's de facto husband, or alternatively, that [the appellant] reasonably believed himself to have been Ms Heptinstall's de facto husband, and that therefore [the appellant] had good reason to believe that he was the sole beneficiary entitled to Ms Heptinstall's estate.
4.Error of mixed law and fact - The Honourable Trial Judge erred by sentencing [the appellant] to an immediate term of imprisonment of three years and 10 months, where such a term was manifestly excessive in light of the following particulars:
a.The lack of prior convictions for offences of a similar nature.
b.That Ms Heptinstall was [the appellant's] de facto wife, or alternatively that he reasonably believed that Ms Heptinstall was his de facto wife, and Ms Heptinstall had no other dependants, and so it was reasonable for him to believe that he was the sole beneficiary entitled to her estate.
c.That on the evidence presented at trial, [the appellant] likely is the sole beneficiary entitled to Ms Heptinstall's estate.
d.It [would] not be obvious to a person in [the appellant's] position that there could be any victims of the offending conduct, and it is not obvious that there were any victims of the offending conduct save for the estate of Ms Heptinstall, regarding which he is likely to be the sole beneficiary entitled to the estate.
e.The offending took place over a period of only around three minutes, shortly following the unexpected death of [the appellant's] de facto spouse, and is not consistent with premeditation.
f.Comparison to sentences imposed for fraud under s 409 Criminal Code (WA), in matters involving greater culpability by way of premeditation and breach of trust, and for comparable or greater amounts.
Sentencing remarks
The sentencing judge commenced his remarks by describing the offence in the following terms:[73]
The speed at which you made the change, the use of Ms Heptinstall's phone which contained automatic login credentials and its availability to you by reason of your relationship to her, and the prospect that you might have improved your chance to her superannuation against the estate and thereby deprive people who actually cared for her together with the size of the potential windfall, over $300,000, and the widespread use of telephones and saved [i]nternet passwords to conduct personal financial decisions and the utility in large financial corporations being able to rely on platforms of that kind demonstrates that your conduct was a serious example of this kind of offending.
[73] ts 435.
The sentencing judge referred to the transactions on Ms Heptinstall's bank accounts, which the appellant also effected using her mobile telephone. In that regard, his Honour said:[74]
But not only did you get hold of Ms Heptinstall's phone within hours of her passing to affect [sic] that change, that you also made multiple transfers between her bank accounts and withdrew amounts of cash using Ms Heptinstall's bank cards and that represented a further complete disregard of Ms Heptinstall's estate, but more significantly, a complete disregard of Ms Heptinstall as being a person and a person who had been in your life.
I accept and find that you attempted to conceal the bank transactions and the conduct that you had undertaken in making the beneficiary change by deleting from Ms Heptinstall's telephone the Westpac and Rest applications from the phone and that you signed out of Ms Heptinstall's email account prior to giving the telephone back to the family, and your resistance in the giving back of the phone was informed by reason of your certain knowledge that you had offended against Ms Heptinstall in the way that you had done so, and I use offended against in its broader sense, not only insofar as your responsibility which has been proved against you but offended more generally in using her bank accounts unlawfully to your own end without any care, regard for her or those close to [her].
And that knowledge of your impropriety and criminality demonstrated itself by way of your resistance to surrendering the phone to people who were most obviously entitled to it and interested to receive it so that they might make some very sad inquiries themselves about Ms Heptinstall's life and just get personal information. It was deliberately selfish conduct on your part. All of us use our phones for many things other than financial transactions, but to keep photographs and things of that kind, and at that very raw period, it would have been compassionate and considerate for you to make that telephone available. Obviously, you were not prepared to do that because you well understood what it was that you had done.
[74] ts 435 - 436.
The sentencing judge went on to consider the telephone calls with REST on 24 and 25 July 2019. He accepted that, in those telephone calls, the appellant had attempted to conceal his offending conduct and mislead REST with respect to the beneficiary change. His Honour referred to the appellant's 'glib and superficial charm', and that he presented as an uninformed person just making a harmless enquiry. His Honour described this as a deliberate attempt by the appellant to use stealth and to conceal that he was seeking to defraud the estate.[75]
[75] ts 436.
The sentencing judge made a finding that, by logging into the REST superannuation application and thereby purporting to be Ms Heptinstall, the appellant intended to defraud the trustee of the superannuation fund into believing that Ms Heptinstall had made the change to a non‑binding beneficiary. His Honour said that the appellant's subsequent conduct in the telephone calls was consistent with that finding.[76]
[76] ts 437.
The sentencing judge noted that, when interviewed by the police and in his evidence at trial, the appellant denied making the alteration. His Honour noted that that position had undergone some change since the verdict of the jury, and that was demonstrated in a psychological report in which the appellant had claimed to have no recollection of the relevant events, suggesting that his alter ego was responsible. The appellant also told the psychologist that he intended to pursue a claim for the superannuation funds, totalling over $400,000, as he believed he was entitled to the money.[77]
[77] ts 437.
As regards whether the appellant had any valid claim to the superannuation funds, the sentencing judge said:[78]
Now, your decision to pursue whatever civil claim you want to pursue is a matter entirely for you. That decision does not in any way make your conduct more serious and does not stand as an aggravating factor. I mentioned it previously in the course of discussion with Mr Strbac as it does, in my view, demonstrate a lack of empathy. A lack of empathy is not the same thing as not having a right at law as was text bookly [sic] described by Mr Strbac in his response to my question.
[78] ts 437
The sentencing judge went on to note that the appellant was aware of animosity between himself and Ms Heptinstall's family, and knew that she did not have a will. The appellant understood that Ms Heptinstall's family would likely oppose any claim that he made, and that informed his thinking.[79]
[79] ts 438.
The sentencing judge found that the appellant had attempted to conceal the change he had made to the beneficiary and the bank transactions. He did this by deleting the Westpac and REST applications from the mobile telephone, logging out of Ms Heptinstall's email account and resisting returning the mobile telephone to Ms Heptinstall's family.[80]
[80] ts 436.
The sentencing judge found that the appellant had a sense of entitlement and a belief that the superannuation funds were his. His Honour then said:[81]
If you're able to demonstrate that or if you're successful in any other civil proceedings, that's a matter for those proceedings.
But that entitlement materially for this case informed your criminality and your decision to offend against the estate in the manner that you did, and it informs the Crown's submission, that I accept, that you made a deliberate choice to attempt to advance your claim to the superannuation over Ms Heptinstall's family using unlawful means.
[81] ts 438.
The sentencing judge said that the offending demonstrated the need for a significant penalty. He said that the appellant had poor antecedents, a complete lack of remorse, a high risk of further offending, and there was a demonstrated need for a specific punishment that operated to deter him from offending again in the future. His Honour said that the sentence should incorporate an element of general deterrence.[82]
[82] ts 438.
The sentencing judge referred to the appellant's personal circumstances in the following terms:[83]
You are now 32 years of age. You describe your occupation of that as a sales representative. At the time of this offending, you were 27 years of age and you had been in a relationship with Kimberley Heptinstall. As I've observed and as is uncontradictable, Ms Heptinstall very sadly passed away following surgery. Within about six and a half hours of your [sic] passing, you took steps to access her superannuation and to replace the non‑binding beneficiary with yourself, and you used Ms Heptinstall's bank accounts to transfer about $2,400 to your own use.
Your conduct was not to marshal her assets or to identify assets and liabilities of the estate, but was rather opportunistic and predatory and was designed to enrich yourself and to take advantage of Ms Heptinstall's estate. Your offending took place in the immediate aftermath of her passing and continued for a four-day period. The period included those two telephone calls in which you pretended to be the injured innocent. The clear intent in your offending was to improve to the detriment of her family your chances of becoming the beneficiary of the benefits under the superannuation Trust. It represented a cold-hearted and calculated breach of trust.
Your conduct was in no way clouded by or informed by any sense of grief. You were motivated by greed and you deliberately decided to act dishonestly. I do not accept that you have any sense of grief or insight whatsoever. I accept the submission made by Mr Strbac that people grieve differently. There's plainly no proper way to grieve, but your immediate conduct was to seek to enrich yourself and to profit from Ms Heptinstall's passing, and a more stark act or course of conduct inconsistent with any real grief or sadness is difficult to imagine.
[83] ts 438 - 439.
The sentencing judge noted that the pre‑sentence report stated that the appellant had displayed a pattern of impulsive and dishonest behaviour. The appellant had an unsettled and disruptive childhood, marred by his parents' numerous separations, which resulted in moving house and school over 15 times. As a result of this, the appellant relied on his paternal grandparents for support. The sentencing judge accepted that the appellant did suffer the hardship of having unreliable, unpredictable and unsupportive parents, and that that had some impact on him.[84]
[84] ts 439 - 440.
The sentencing judge also referred to the psychological report, which recorded that the appellant distanced himself from any responsibility in relation to the offending by attributing his actions to another personality and claiming no memory of his actions. The psychological report stated that there was no evidence of depressive or anxiety‑related symptoms, nor risk‑related to suicide. The report referred to the appellant meeting the criteria for borderline personality disorder. In that regard, his Honour referred to a review conducted in 2015 by a psychiatrist, which noted that, despite his claims of having another personality, the appellant had never sought psychological counselling to assist in managing his life, as had been previously recommended. Rather, he had continued to offend and blame the other persona for his actions, distancing himself from any responsibility. The sentencing judge accepted that there was a need for the appellant to engage with a counsellor, psychologist or psychiatrist. However, he did not accept that the appellant had yet accepted this need. Nor did he accept that the appellant had any real insight into his own behaviour.[85]
[85] ts 441.
The sentencing judge found that the appellant had demonstrated no remorse. His Honour described the appellant as a deeply dishonest person.[86]
[86] ts 442.
Towards the end of the sentencing judge's remarks, the prosecutor sought to clarify the relevance of the bank transactions:[87]
MOSS, MS: Thank you, your Honour. Just very briefly and I do apologise for interrupting your Honour's remarks. Just with respect to the bank transfers, the Crown position was that the bank transfers demonstrated greed, calculated conduct and a sense of entitlement, but it was not sought to elevate those transfers to criminal offending.
MacLEAN DCJ: No. But I used criminal in a generic sense and I tried to explain that previously if I did so poorly. He's being sentenced for one offence and one offence only.
MOSS, MS: Thank you, your Honour.
MacLEAN DCJ: His conduct generally was offensive, demonstrated a lack of empathy.
MOSS, MS: Thank you, your Honour.
MacLEAN DCJ: His conduct generally represented an abuse of Ms Heptinstall and those interested in the estate. It's not criminal conduct in the sense that I'm going to give a fine or an extra penalty or add something on, but overall, it represented an abuse and - - -
MOSS, MS: That's the Crown's position.
MacLEAN DCJ: - - -I did try to explain that previously. If I failed to do so, I'm sorry.
[87] ts 444.
Ground 1 - appellant's submissions
The appellant submits that the sentencing judge erred by treating the appellant's misuse of Ms Heptinstall's bank accounts as additional criminality that aggravated the offending. Although his Honour said that he was not imposing any additional penalty for that conduct, he did describe it as an 'abuse'. The appellant submits that such a finding was unwarranted.[88]
[88] WAB 94 - 95.
The appellant submits that the defence case at trial was that the appellant had been in a de facto relationship with Ms Heptinstall since March 2017 and that they were financially dependent on one another. It is suggested that in these circumstances the appellant reasonably believed that he was entitled to her property as the sole beneficiary of her estate. The appellant, in effect, submits that he believed he was legally entitled to withdraw funds from the bank accounts and to withhold the mobile telephone from Ms Heptinstall's family.[89]
[89] WAB 95.
Ground 1 - respondent's submissions
The respondent submits that the appellant's relationship with Ms Heptinstall was not the subject of extensive evidence at the trial. Nor was any additional evidence on this matter adduced for the purposes of sentencing. The evidence at trial established that the appellant and Ms Heptinstall met in 2017, had planned to marry in August 2018 but had called off the wedding. They had lived together for some time thereafter, but had also lived separately for some periods. There was insufficient evidence to support a finding that the appellant and Ms Heptinstall were de facto spouses at the time of her death such that the appellant had any legal rights or claims on her estate. Further, the respondent submits that any claim of right to the superannuation funds was inconsistent with the appellant's defence, namely that he did not make the change to the nominated beneficiary, rather than that he had some entitlement to do so.[90]
[90] WAB 110 - 111.
The respondent submits that the sentencing judge did not rely on the bank withdrawals as an aggravating factor. Rather, the respondent says that the bank transactions supported the finding that in changing the superannuation nomination the appellant had breached Ms Heptinstall's trust and disregarded the interests of her estate. The evidence also supported a finding that the appellant had acted in an 'opportunistic and predatory' manner. The conclusion that the appellant's conduct generally was 'an abuse of Ms Heptinstall and those interested in the estate' was open on the evidence.[91]
[91] WAB 112.
Ground 1 - disposition
It is a fundamental principle that no one should be punished for an offence of which he has not been convicted.[92] It is also a general principle that all of the circumstances of an offence should be considered in determining an appropriate sentence. Where these principles conflict, the former will prevail.[93] But this should not be understood as meaning that where the surrounding circumstances of an offence include other conduct which could have been the subject of charges it must be ignored. There is a distinction between improperly increasing a sentence to take into account uncharged offences and properly making an assessment of the seriousness of an offence having regard to the context in which it occurred.
[92] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389 (Gibbs CJ); Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 5; R vOlbrich [1999] HCA 54; (1999) 199 CLR 270 [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26] (Steytler P, Wheeler & Roberts-Smith JJA agreeing); Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368 [9] (Buss JA), [94] (Mazza J).
[93] R v De Simoni (389) (Gibbs CJ); Savvas (5); Langdon [94] (Mazza J).
In Skelly v The State of Western Australia this court referred to the relevant principles in the following terms:[94]
[94] Skelly v The State of Western Australia [2020] WASCA 3 [81] - [84].
It is a fundamental principle that 'no one should be punished for an offence of which he has not been convicted'. The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence.
This principle applies in several different situations. Among other things, it means that, in sentencing an offender for an offence, a sentencing judge must not take into account a fact or circumstance if it would, in effect:
(a)treat the offender as guilty of a more serious offence than the offence of which they have been convicted; or
(b)constitute a circumstance of aggravation, so as to render the offender liable to a higher penalty.
This appeal is not concerned with either of these situations.
Another emanation of this fundamental principle is that in sentencing an offender for one offence, the judge is not entitled to punish the offender for an additional offence to the one with which the offender was charged.
It is not always easy to determine where the line is to be drawn between permissible consideration of the circumstances of the offence and punishment for an offence not charged. Questions of fact and degree are involved. What is required is a careful reading of the sentencing remarks to see to what extent, and for what purpose, uncharged acts might have been taken into account.
The bank transactions were relevant evidence at the trial because they were undertaken using an application on the same mobile telephone and at around the same time as the offence occurred. The Crown relied on these transactions as evidence to show that the appellant was the person who had made the superannuation nomination change. The Crown pointed to the timing and nature of the transactions.
The sentencing judge in referring to the banking transactions as an 'abuse' accepted that they involved, like the superannuation change, a misuse of a trusted position to obtain a personal benefit. This provided the context in which the offending occurred. The superannuation change was not an isolated or uncharacteristic act but, rather, formed part of a broader course of conduct. His Honour was, however, careful not to treat the banking transactions as additional criminal conduct. He expressly stated that he had not increased the penalty by taking into account those transactions.
On a careful reading of the sentencing remarks as a whole it is apparent that the banking transactions were viewed as part of the broader context in which the offence occurred. That is, those transactions were part of the general conduct of the appellant at the relevant time by which he displayed disregard for the interests of Ms Heptinstall and her estate. Other aspects of this general conduct, such as the appellant's withholding of the mobile telephone, were also referred to. The sentencing judge relied upon these matters as part of the circumstances in which the offending occurred in order to make an accurate assessment of the seriousness of the offence.
The findings of the sentencing judge in regard to the banking transactions were plainly open. The fact that the appellant admitted the transactions and claimed that he had a reasonable claim to the money did not compel a conclusion in his favour. The evidence at trial did not enable any conclusion to be drawn as to the true nature and length of the relationship. Furthermore, as the sentencing judge pointed out, the appellant had acted in a manner that was inconsistent with any belief that he had such a claim, including by deleting the banking application and withholding the mobile telephone.
Whilst we would grant leave to appeal on ground 1, it is not established.
Ground 2 - appellant's submissions
The appellant raises a similar argument by this ground. He submits that the finding that Ms Heptinstall's family were 'obviously entitled' to the mobile telephone and that his resistance to handing it over was selfish, was an error. This is said to be because the appellant, as Ms Heptinstall's de facto spouse, had at least as strong a claim to the mobile telephone as her family. The appellant submits that the sentencing judge erred by 'inferring a malign intention' from conduct that had a reasonable explanation.[95]
[95] WAB 96.
Ground 2 - respondent's submissions
The respondent submits that the sentencing judge's comments need to be understood in the context of the evidence at trial. In particular, Ms Heptinstall's family was arranging her funeral; the appellant was asked on multiple occasions for the mobile telephone so that the family could obtain photographs for the funeral service; the appellant only provided the mobile telephone to a third party after six days, and no basis for retaining the mobile telephone was offered by the appellant in his evidence.[96]
[96] WAB 114.
The respondent submits that the sentencing judge's comment, when seen in context, was not a finding as to a legal entitlement to the mobile telephone, but a comment about the moral culpability of the appellant in retaining the mobile telephone as part of his efforts to conceal his offending. The sentencing judge was neutral as to any entitlement by the appellant to Ms Heptinstall's estate.[97]
[97] WAB 114.
The respondent submits that, in any event, even if the sentencing judge made the alleged error, it was not a matter that could have influenced the outcome, having regard to the other findings as to the serious nature of the offence.[98]
[98] WAB 115 - 116.
Ground 2 - disposition
The sentencing judge made findings that the appellant had used the mobile telephone to access both the REST and Westpac applications, had conducted transactions using those applications and had then deleted those applications. His Honour found that in doing so, and then in withholding the mobile telephone when Ms Heptinstall's family asked for it, the appellant's motivation was to conceal what he had done. It was in this context that his Honour referred to the family being entitled to the mobile telephone.
It is apparent that the sentencing judge was not referring to any legal right to the mobile telephone as property. His Honour was referring to the moral claim of the family to access the mobile telephone for the purposes of obtaining photographs for the funeral service. The point his Honour was making was that the appellant did not act in what might be thought to be a reasonable and humane fashion because he was motivated by his own self‑interest in concealing his conduct.
There is no merit in this ground of appeal. Leave in respect of it should be refused.
Ground 3 - appellant's submissions
The appellant submits that the sentencing judge erred by failing to take into account that the appellant was, or reasonably believed himself to be, Ms Heptinstall's de facto husband and, as such, had good reason to believe that he was the sole beneficiary of her estate. The appellant submits that it was reasonable for him to believe that he was merely adopting improper means to access funds to which he would be ultimately entitled to in any event. This is said to reduce his culpability.[99]
[99] WAB 97.
Ground 3 - respondent's submissions
The respondent submits that the status of the relationship was not the subject of comprehensive evidence at the trial or on sentencing. There was insufficient evidentiary foundation for a finding that the appellant had reasonable grounds to believe that he was the sole beneficiary of Ms Heptinstall's estate. There was no error in failing to make such a finding.[100]
[100] WAB 117.
In any event, the respondent submits that a belief on the part of the appellant that he was entitled to the funds could not reduce his moral culpability. The appellant, in a gross breach of his claimed de facto spouse's trust, used her mobile telephone after her death to impersonate her and change the nomination in her superannuation fund. The gravamen of the appellant's conduct was the improper advancement of his claim in circumstances where he knew that Ms Heptinstall's family were likely to oppose his claim. Furthermore, any claim that the appellant was motivated by a belief as to his entitlement is inconsistent with his defence at trial that he did not make the beneficiary change.[101]
[101] WAB 117.
Ground 3 - disposition
The Crown case did not require any determination of the nature and length of the relationship between the appellant and Ms Heptinstall. The evidence in this regard was, therefore, relatively cursory. It was largely confined to assertions made by the appellant. The sentencing judge considered that it was not possible to make a finding as to the merits of any claim to the estate by the appellant.
The appellant submits that the sentencing judge should have made a finding as to his belief. That submission is flawed for a number of reasons. First, the onus is on the appellant to prove any mitigating factor on the balance of probabilities. There was insufficient evidence to make a finding that the appellant had a good claim to the estate or that any belief he had in that regard was reasonable. Secondly, there was evidence that stood firmly against the making of such a finding. It was inconsistent with any reasonable belief in a sole entitlement that the appellant had made the false entry on the superannuation account and had then tried to conceal that he had done so. Thirdly, even if a belief was established, it is difficult to see how it could justify the dishonest actions undertaken by the appellant or reduce his culpability.
There is no merit in this ground of appeal. Leave in respect of it should be refused.
Ground 4 - appellant's submissions
The appellant submits that there is no generally appropriate type of sentence for stealing or fraud because the circumstances and seriousness of the offending can vary widely. However, it is said that the sentence imposed in this case was excessive having regard to the opportunistic nature of the offence; that there was no breach of any legal trust; the nature of the benefit obtained and the fact that this offending involved a single offence carried out over the course of a few minutes.[102]
[102] WAB 97.
The appellant submits that the most useful comparable cases are those dealing with 'smaller frauds' as reviewed in Smallbone v The State of Western Australia.[103] The appellant submits that the sentence in this case exceeds those imposed in a number of the cases referred to in Smallbone, notwithstanding that the circumstances of those cases are arguably more serious.
[103] Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57.
Ground 4 - respondent's submissions
The respondent submits that this was a serious example of an offence of this type, involving a breach of trust where the appellant impersonated his partner after her death. The respondent notes the following factors:[104]
[104] WAB 119 - 120.
1.The speed with which the appellant made the change on the superannuation account.
2.The use of Ms Heptinstall's mobile telephone to make the change.
3.That the appellant improved his chance of receiving the superannuation funds to the prejudice of the estate.
4.The utility of large corporations being able to rely on mobile applications and computer platforms.
5.The intimate nature of the appellant's relationship with Ms Heptinstall.
6.The appellant's knowledge that he was not entitled to take the steps that he did.
7.The appellant's knowledge that Ms Heptinstall's family would be resistant to his claim to the funds.
8.The appellant's attempts to conceal his conduct.
9.The persistence of the offending in the context of the subsequent telephone calls to REST on 24 and 25 July 2019.
10.The size of the potential 'windfall'.
11.That the offending constituted a 'cold-hearted and calculated breach of trust'.
The respondent notes that the appellant has a previous criminal history, including convictions for dishonesty offences. He was convicted of two offences of criminal damage by fire in 2014, one offence of creating a false belief (with respect to the fire) in 2014, and a further offence of criminal damage and an offence of burglary in 2018.[105]
[105] WAB 120.
The respondent submits that sentencing cases for State fraud offences are of questionable utility and ignore the fact that this was a Commonwealth offence to which the Commonwealth sentencing regime applies. In any event, far greater assistance is gained from general sentencing principles than by referring to the outcomes of fraud cases given the enormous variation in the objective and subjective circumstances involved.[106]
[106] WAB 121.
The respondent notes that the sentencing judge had regard to the criminality which is the focus of s 474.14(2), being the use of a device connected to a telecommunications network to commit or facilitate other offending. This approach is consistent with the purpose of the legislature as reflected in the Explanatory Memorandum, namely to 'better reflect the community's increasing dependence on telecommunications and the harm that can be done by misuse or disruption'.[107] In other cases involving the use of technology, the importance of computers and technology and the need for general deterrence has been recognised: see R v Stevens[108] and Larkin v The Queen.[109]
[107] WAB 122.
[108] R v Stevens [1999] NSWCCA 69 [54].
[109] Larkin v The Queen [2012] WASCA 238 [101].
Ground 4 - disposition
The legal principles that apply in respect of an allegation that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well known. They were discussed by this court in Kabambi v The State of Western Australia.[110] Those principles have been restated on many occasions and it is unnecessary to repeat them. The question is not what sentence this court would have imposed, but whether the sentence imposed was so unreasonable or plainly unjust that error in the exercise of the sentencing discretion can be inferred.
[110] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The maximum penalty for an offence against s 474.14(2) is the maximum penalty applicable for the serious offence concerned.[111] In this case that means that the maximum penalty is 7 years' imprisonment, being the maximum penalty for the offence of fraud contrary to s 409 of the Criminal Code (WA).
[111] Criminal Code (Cth), s 474.14(3).
The gravamen of the offence is the use of equipment connected to a telecommunications network to facilitate a serious offence. The use of applications and computer platforms to conduct personal and business transactions is now widespread. Many people use their mobile telephones to store personal information and to access online accounts. The benefits of efficiency and accessibility make this form of communication essential to corporations, governments and individuals. The risks of fraudulent misuse can be minimised to some extent by the use of passwords and biometric security measures. However, there must always be a risk that an offender with trusted access to passwords can commit an offence. The likely difficulty of detection and the need to maintain public confidence in this mode of communication heightens the need for general deterrence.
The offending in this case was serious having regard to the gross breach of trust, the size of the ultimate potential benefit, and the concerted efforts made to conceal the offending. The appellant used his deceased partner's mobile telephone to access her superannuation account and, by pretending to be her, changed the nominated beneficiary to himself. Whilst this did not assure that he would receive the funds, it did improve his position as a claimant. He did this only shortly after his partner had died. He then sought to conceal what he had done by deleting the application and withholding the mobile telephone. The change on the account was completed within minutes, but the appellant then maintained the deception in subsequent telephone calls. He did this in circumstances where he knew that the family of his partner would fight any claim made by him. Although the offence was opportunistic in the sense that the appellant could not have anticipated his partner's death, it was an offence that was aptly described as a cold‑hearted and calculated breach of trust.
There was very little by way of mitigation. The appellant did not have the benefit of a plea of guilty and was not remorseful for his conduct. He did not have the benefit of youth or prior good character. He was found to be at risk of reoffending. The appellant's childhood deprivation and mental health history had general relevance, but neither were causative of the offending. There was a need for a sentence that incorporated elements of both personal and general deterrence.
The parties did not refer to any comparable cases dealing with s 474.14 offences. Cases dealing with s 409 fraud are of very limited use. That is a different offence that does not incorporate the element of misuse of telecommunications equipment. The elements of the offences and the policy considerations underlying them are different. Furthermore, the sentencing regime for Commonwealth offences is different from that applicable to State offences and makes comparison problematic.
The absence of truly comparable cases does not prevent a conclusion that a sentence is manifestly excessive. It simply means that any analysis must proceed without the guidance to be afforded by past sentencing decisions. The other factors relevant to consideration of the sentence, being the maximum penalty, the seriousness of the offence and personal circumstances, remain relevant.
Having regard to all relevant factors we are not convinced that the sentence in this case was so high as to be clearly outside the range of sentences open to the sentencing judge. Whilst the sentence could be viewed as being towards the higher end of the discretionary range, it is not unreasonable or plainly unjust.
While we would grant leave to appeal on ground 4, the ground is not established.
Conclusion and orders
As none of the grounds against either conviction or sentence have succeeded, both appeals must be dismissed.
We would make the following orders:
CACR 61 of 2024
1.Leave to appeal is granted on ground 1.
2.Leave to appeal on grounds 2 and 4 is refused.
3.The appeal is dismissed.
CACR 60 of 2024
1.Leave to appeal is granted on grounds 1 and 4.
2.Leave to appeal on grounds 2 and 3 is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
30 APRIL 2025
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