Blundell v R - [2008] NSWCCA 92

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Blundell v R [2008] NSWCCA 92
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/3108

HEARING DATE(S):
12 and 14 December 2007

JUDGMENT DATE:
29 April 2008

PARTIES:
Richard James Blundell - Appellant
Regina - Respondent

JUDGMENT OF:
Grove J Hulme J Simpson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0345

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
12 July 2007

COUNSEL:
J Conomos - Applicant
CP O'Donnell - Respondent

SOLICITORS:
Van Cooney Lawyer - Applicant
Comonwealth Director of Public Prosecutions - Respondent

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - obtaining money by deception, fraudulent misappropriation, obtaining money by false or misleading statements - pleas of guilty - whether inadequate recognition given to subjective circumstances and consideration of alternate sentencing options - prosecution did not oppose community service - failure to take into account s 5(1) of the Sentencing Procedure Act and to consider alternatives to a fulltime custodial sentence - lengthy delay in finalisation of the proceedings - sentence quashed and community service ordered.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:

TEXTS CITED:

DECISION:

Leave granted to the applicant to appeal against the sentences imposed
Each sentence be quashed
In lieu thereof, in respect of each offence direct the applicant to perform 100 hours of community service work
The applicant is directed to report to the NSW Probation and Parole Service within 7 days

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3108
GROVE J
HULME J
SIMPSON J
29 April 2008

BLUNDELL, Richard James v R

Judgment

GROVE J: I agree with Simpson J
HULME J: I agree with Simpson J
SIMPSON J: On 14 December 2007, the Court made the orders that appear at para 28 of this judgment. What follows are my reasons for joining in those orders
The applicant sought leave to appeal against sentences imposed upon him in the District Court on 12 July 2007 by Hughes DCJ following his pleas of guilty to charges brought by the Commonwealth Director of Public Prosecutions under the Crimes Act 1900 (NSW).
The applicant pleaded guilty to all counts on an indictment alleging four offences of obtaining money by deception, contrary to s 178BA and asked, pursuant to Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), that a further five offences (three against s 178BA, and one each against s 178A (fraudulent misappropriation) and s 178BB (obtaining money by false or misleading statements) listed on a Form 1 be taken into account.
The maximum penalties prescribed by the Crimes Act in respect of the offences are: s 178A – imprisonment for 7 years; s 178BA – imprisonment for 5 years; s 178BB – imprisonment for 5 years.
Hughes DCJ sentenced the applicant, on the first count on the indictment, to a period of imprisonment for 18 months with a non-parole period of 6 months, commencing on 12 July 2007. In respect of the second, third and fourth counts he imposed fixed terms of imprisonment for 6 months, to be served concurrently with each other and with the first. In response to a specific question asked by the Crown, his Honour said that he had taken into account the Form 1 offences in the sentence imposed in respect of the second count.
The applicant’s brother, Paul Blundell, pleaded guilty to three counts of fraudulent misappropriation brought under s 178A of the Crimes Act. On the day after he sentenced the applicant, Hughes DCJ also sentenced Paul Blundell, to a total term of imprisonment for 18 months, with a non-parole period of 9 months. Paul Blundell has also sought leave to appeal against the severity of the sentences imposed upon him. Although his application was heard by this Court in conjunction with that of the present applicant, it is not possible to deal with the two concurrently. That is, in part, because Paul Blundell (acting on erroneous legal advice) failed to attend for the hearing.
In the applicant’s case his Honour stated that, were it not for the pleas of guilty, the overall sentence would have been of imprisonment for 2 years, which he discounted by 25 percent in recognition of the pleas of guilty. He found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, as a consequence of which he varied the ratio between the head sentence and the non-parole period there stated.
The facts
All offences on the indictments were committed over a period of a few months in 2002. The Form 1 offences were committed in 2000 and 2001.
Despite the varying sections of the Crimes Act under which the charges were brought, and by reference to which the Form 1 offences were identified, all offences (committed by both brothers) were essentially the same. In each case the applicant who, with his brother, operated an insurance brokerage business, represented to a client that a particular kind of insurance would be (and had been) arranged, obtained from that client funds for payment of the premium, but failed to make the necessary arrangements or remit the funds to the insurance company, rather diverting the funds into a business or personal account. One consequence was that clients who believed that they had insurance cover against various contingencies were in fact uninsured.
The amount involved in the applicant’s offences was $16,920.39, of which $8827.30 was attributable to the offences the subject of the indictment, and the balance of $8093.09, to the Form 1 offences.
The amount involved in the offences committed by Paul Blundell was vastly higher, amounting in total to $146,000. This may have been because of the identity of the victims, who were the operators of licensed premises, where, it may be assumed, insurance premiums are significant.
Subjective circumstances
The applicant was born in October 1958. He is the older of the brothers by six years. He was 42 when his offending began, 42 when charged and 48 at sentencing. He has no previous convictions. He and his brother together operated an insurance brokerage business, a firm that had been established by their grandfather in 1972 and had remained in the family for three generations. He is the father of two adult children and lives in a de facto relationship. Following his being charged he lost his employment and was unemployed for about eight months. For a time he lived with his parents and relied upon them for money. Thereafter he has had employment in hotels in Moree and in Botany Bay.
The applicant gave evidence in the sentencing proceedings. He said that he had suffered a great deal of embarrassment and personal anguish as a result of the break up of the family business and his loss of reputation.
He had deposited, by way of reparation, the sum of $2000 in a solicitor’s trust account and offered to pay $100 a week.
A large number of impressive testimonials were put before his Honour, all attesting to the applicant’s good character.
The Remarks on Sentence
Hughes DCJ set out the facts at considerable length, drawing from a statement of agreed facts that had been put before him. He accepted that the applicant was “contrite” and that the likelihood of his re-offending was not strong and that he has good prospects of rehabilitation. As an aggravating feature he took into account that the criminal activity was planned, organised and repetitive.
He proceeded to impose the sentences I have already mentioned.
The application for leave to appeal
On behalf of the applicant the following written submission was put to this Court:
“1.The applicant was born in October 1958 and had no prior convictions.
2.The applicant was eligible for periodic detention and community service.
3.The applicant ceased activities as an insurance broker.
4.Were it not for the charges against the applicant’s brother Paul John Blundell the charges would have been dealt with at Local Court level.
5.The prosecution did not oppose community service.
6.The applicant offered to make restitution by periodic payments.
7.The applicant will report forthwith to the Probation and Parole Service for a comprehensive and up to date pre-sentence report.”
These are not easy submissions to respond to. Presumably, it was intended to assert that inadequate recognition was given to subjective circumstances, and/or inadequate consideration was given to the sentencing options of a community service order or a periodic detention order, and/or to the circumstance that the offences could have been dealt with in the Local Court, with the jurisdictional limit applicable to that Court.
In fact, his Honour did give express consideration at least to the second and third of these. He said:
“I intend to, despite what the Crown and the defence have admitted, I do not think that community service is an appropriate sentence for this crime. I think that it is more serious than that and what I intend to do is to regard this as if I were sentencing him in the Local Court.”
At the time the maximum jurisdiction of the Local Court in sentencing was imprisonment for 2 years.
It is true that the Crown prosecutor did not oppose a community service order and made an express concession that the financial advantage obtained by the applicant was at the lower end of offences of their type and that the imposition of a community service order would not be a manifestly inadequate sentence.
Such a concession does not and can not bind a sentencing judge.
To the extent that these submissions are intended to challenge the adequacy of consideration given to subjective circumstances, they run straight up against the express words in the Remarks on Sentence. His Honour was fully aware of all of the subjective circumstances.
Nevertheless, I have come to the view that, in respect of offences involving a total of a little under $17,000, committed by a 42 year old of previously impeccable character, a starting point of imprisonment for 2 years was manifestly excessive.
Section 5(1) of the Sentencing Procedure Act provides:
“5(1)A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
While, on one view, it may be implicit in his Honour’s express rejection of a community service order that he formed the view that no sentence other than a period of imprisonment would be adequate to deal with the applicant’s criminality, it is not apparent that he had in mind the injunction contained in s 5(1). In my opinion, having regard to the amount involved, a penalty other than imprisonment would have been one appropriate means of dealing with the applicant’s criminality. That is not to say that that was the only available alternative. It was in failing to take account of s 5(1) and to consider alternatives to a fulltime custodial sentence, that his Honour misdirected himself. A further consideration in this respect, to which no reference was made, was the lengthy delay in the finalisation of the proceedings. That was a period of 5 years. The materials before this Court contain no information to explain the delay, although it is apparent that other charges were brought, and were either dismissed or withdrawn.
At the hearing of the application the Court directed preparation of a report pursuant to s 86(1) of the Sentencing Procedure Act confirming the applicant’s suitability for community service work and the availability of such work and arrangements for it to be performed. That report having been provided, and being positive, I propose that the applicant be granted leave to appeal against sentence, the appeal be allowed, and the sentences imposed in the District Court be quashed, and an order, pursuant to s 8(1) of the Sentencing Procedure Act, be, in respect of each offence, substituted.
The Court therefore made the following orders:
(1)Leave granted to the applicant to appeal against the sentences imposed;
(2)Each sentence be quashed;
(3)In lieu thereof, in respect of each offence direct the applicant to perform 100 hours of community service work.
(4)The applicant is directed to report to the NSW Probation and Parole Service within 7 days.
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AMENDMENTS:

30/04/2008 - Judgments of Grove J and Hulme J inserted in Paras 1 and 2 - Paragraph(s) 1 and 2

02/07/2008 - Judgment date added to coversheet. - Paragraph(s) 0

LAST UPDATED:
2 July 2008