Bogers v The State of Western Australia
[2020] WASCA 174
•23 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOGERS -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 174
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 23 MARCH 2020
DELIVERED : 23 OCTOBER 2020
FILE NO/S: CACR 109 of 2019
BETWEEN: ADAM WILLIAM BOGERS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND 1779 of 2017
Catchwords:
Criminal law - Appeal against sentence - Multiple fraud and dishonesty offences - Whether appellant's use of funds was treated as an aggravating factor - Whether appellant's antisocial personality disorder reduced his culpability for the offending - Whether sentences manifestly excessive - Whether total effective sentence infringes totality principle - Turns on own facts
Legislation:
Criminal Code (WA), s 409(1)(c), s 417(1), s 491(1), s 552
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abduramanoski v The State of Western Australia [2019] WASCA 216
Alabbasi v The State of Western Australia [2012] WASCA 133
Atherley v The State of Western Australia [2017] WASCA 53
Barrett v The State of Western Australia [2007] WASCA 21
Brown v The Queen [2020] VSCA 212
Deville v The State of Western Australia [2004] WASCA 264
F v The State of Western Australia [2008] WASCA 100
Giglia v The State of Western Australia [2010] WASCA 9
Gok v The Queen [2010] WASCA 185
Hayward v The State of Western Australia [2020] WASCA 57
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Krijestorac v The State of Western Australia [2010] WASCA 35
Lindsay v The State of Western Australia [2010] WASCA 142
McNab v The State of Western Australia [2010] WASCA 66
McNamara v The State of Western Australia [2010] WASCA 193
Nikaghanri v The State of Western Australia [2009] WASCA 192
Pflug v The State of Western Australia [2018] WASCA 65
R v Black [2002] WASCA 26
R v Engert (1995) 84 A Crim R 67
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Smallbone v The State of Western Australia [2008] WASCA 167
The State of Western Australia v Chapman [2012] WASCA 203
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Malone [2015] WASCA 188
Thompson v The Queen [2005] WASCA 223
Vargess v Hughes [2017] WASC 291
Wheeler v The Queen [No 2] [2010] WASCA 105
Wittensleger v The State of Western Australia [2014] WASCA 205
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 15 November 2018, the appellant was convicted on his pleas of guilty of 17 counts contained in an indictment filed in the District Court,[1] being:
(1)10 counts of gaining a benefit by fraud, contrary to s 409(1)(c) of the Criminal Code (WA) (Code), with six of these counts having been committed in circumstances of aggravation;
(2)two counts of attempting to gain a benefit by fraud, contrary to s 409(1)(c), read with s 552 of the Code;
(3)four counts of possessing identification material with intent to commit an offence, contrary to s 491(1) of the Code; and
(4)one count of possessing stolen and unlawfully obtained property, contrary to s 417(1) of the Code.
[1] WAB 55 - 63.
On 20 June 2019, the appellant was sentenced by Gething DCJ to a total effective sentence of 6 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 14 December 2016.[2]
[2] ts 104.
The individual sentences that were imposed on each count are set out in the table below:
Offence
Maximum penalty
Count
Sentence
Gaining benefit by fraud
s 409(1)(c) Code
7 years
1
3 years 6 months
(head sentence)
2
3 years (concurrent)
4
20 months (concurrent)
11
18 months (concurrent)
Offence
Maximum penalty
Count
Sentence
Gaining benefit by fraud in circumstances of aggravation
s 409(1)(c) Code
10 years
3
2 years (concurrent)
5
2 years (cumulative)
7
2 years (concurrent)
10
2 years (concurrent)
14
2 years 2 months (concurrent)
16
2 years 2 months (concurrent)
Attempting to gain a benefit by fraud
s 409(1)(c) read with s 552 Code
3 years 6 months
6
6 months (cumulative)
8
12 months (concurrent)
Possession of identification material with intent to commit an offence
s 491(1) Code
5 years
9
2 years (concurrent)
12
2 years (concurrent)
15
2 years 2 months (concurrent)
17
2 years 2 months (concurrent)
Possession of stolen and unlawfully obtained property
s 417(1) Code
7 years
13
12 months (concurrent)
The appellant advances eight grounds of appeal.[3]
[3] WAB 6 - 7.
Ground 1 alleges that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.
Grounds 2 ‑ 5 allege that the individual sentences imposed in relation to counts 2, 4 and 11 (fraud) and count 3 (aggravated fraud) were manifestly excessive.
Ground 6 alleges that the sentencing judge erred in stating that there was nothing in the use of the funds that the appellant fraudulently obtained that tempered the seriousness of the offending.
Ground 7 alleges that the sentencing judge erred in stating that the appellant's antisocial personality disorder (APD) did not reduce his moral culpability, despite making a finding that it was causative of the offending.
Ground 8 alleges, in effect, that the sentencing judge erred in stating that, even if he was wrong in relation to the statement the subject of ground 7, the overall sentence would not differ as there was an increased need to impose a sentence of sufficient severity to protect the public from future offending of the same kind.
The question of leave to appeal on these grounds was referred to the hearing of the appeal.[4]
[4] Order of Buss P, 6 September 2019, WAB 4.
The facts
The facts of the appellant's offending, which were read to the sentencing judge by the State prosecutor, were accepted by the appellant's counsel at first instance and are not disputed on appeal. The sentencing judge formally incorporated them into his sentencing remarks.[5] The facts may be summarised as follows.
Count 1 - fraud
[5] ts 90.
Between November 2015 and May 2016, the appellant established 17 accounts with bet365, an online gambling company, using unlawfully obtained identification. Using 57 credit cards, the details of which the appellant had fraudulently obtained, he deposited into the bet365 accounts various sums totalling $127,061.[6] The funds were used to place bets, resulting in winnings of $33,990.89, which the appellant transferred into his personal bank account. Bet365 was later obliged to refund to the credit card holders a total of $127,061.[7] As pleaded in the indictment, the benefit gained by the appellant was $127,061. In the sentencing remarks, the sentencing judge said that the total amount defrauded from bet365 was $161,051.89.[8]
Count 2 - fraud
[6] ts 90; the prosecutor stated that the deposits totalled $130,671 (ts 60), but nothing turns on the difference in those amounts.
[7] ts 90.
[8] ts 90.
Between 4 and 21 January 2016, the appellant used a false name to create an account on the Swan Taxis app. The appellant linked five different credit cards, the details of which he had fraudulently obtained, to the account. Between 4 and 21 January 2016, the appellant charged taxi fares, which he booked through the app, to the value of $15,359.40.[9] Swan Taxis was later obliged to refund these amounts to the lawful card owners.
Count 3 - aggravated fraud
[9] ts 60.
On 20 January 2016, the appellant attended Como Waters Bed and Breakfast, a business conducted by the victim. The appellant identified himself to the victim using a false name. Using fraudulently obtained credit card details, the appellant booked three nights' accommodation. A charge of $450 was made to the credit card. The offender left the bed and breakfast on the morning of 23 January 2016 without checking out. Later, the victim's bank withdrew $450 from her account and refunded it to the lawful credit card owner. This offending was aggravated by the fact that the victim was over the age of 60 years.[10]
Count 4 - fraud
[10] ts 61 - 62.
On 6 March 2016, the appellant made an online booking with LUBE Mobile to service his motor vehicle. The appellant made the booking under a false name. The vehicle service cost $1,153.92. On 7 March 2016, the appellant paid for the service using the fraudulently obtained details of four different credit cards. Ultimately, LUBE Mobile was required to repay to the lawful credit card holders sums totalling $1,153.92.[11]
Count 5 - aggravated fraud
[11] ts 61 - 62.
On 3 May 2016, the appellant attended at an address in Shenton Park known as Park Vista. Using a false name, the appellant had booked four nights' accommodation at this address via an online booking website. The cost of the accommodation was $1,280. The appellant provided the victim with the details of a fraudulently obtained credit card to pay for the accommodation. However, when the victim attempted to process the payment, the credit card was declined. A short time later the appellant left the property.[12] The offending was aggravated by the fact that the victim was over 60 years of age.
Count 6 - attempted fraud
[12] ts 62.
On 21 May 2016, the appellant, using a false name, attempted to purchase a pair of running shoes, valued at $229.95, from the Athletes Foot online store. On two occasions, the appellant attended at the Athletes Foot store in Subiaco to take delivery of the shoes that he had ordered. On both occasions, he was refused service.[13]
Count 7 - aggravated fraud
[13] ts 92.
The appellant used an online accommodation booking platform to book four nights' accommodation under a false name at an address in Menora known as The Bungalow. On 4 June 2016, the appellant attended at the address and supplied the victim with the details of a fraudulently obtained credit card. The initial four nights' accommodation cost $1,125. Later, the appellant extended his stay by a further seven nights at an additional cost of $1,575. Ultimately, the victim was obliged to repay the lawful credit card holder $2,700. The offending was aggravated by the fact that the victim was over 60 years of age.[14]
Count 8 - attempted fraud
[14] ts 92.
The appellant used an online accommodation booking platform to book 11 nights' accommodation at an address in Beaconsfield known as Sunset House, under a false name, at a total cost of $3,025. On 12 June 2016, the victim, having become suspicious of the transaction, asked the appellant to meet him at the premises to finalise the booking. The victim also arranged for the police to attend when the appellant eventually arrived. The police attended and the appellant was arrested.[15]
Count 9 - possession of identification material with intent to commit an offence
[15] ts 64.
Upon the appellant's arrest on 12 June 2016, he was searched by police. The appellant was found in possession of numerous items of identification material and credit card details which he was not entitled to possess, including:
(1)digital images of 13 Western Australian driver's licences, a Republic of Ireland passport, a proof of age card, a Mastercard, the registration papers of a vehicle, a Medicare card, a high‑risk work permit and Water Corporation and Synergy bills;
(2)details of more than 80 fraudulently obtained credit cards; and
(3)eight identity cards.
Count 10 - aggravated fraud
The appellant, using an online accommodation booking platform, booked two weeks' accommodation at a unit in Forrest Street, Subiaco, under a false name. On 19 June 2016, the appellant supplied the victim with the details of numerous credit cards until the transaction was processed. Subsequently, the appellant extended his stay at the accommodation by a further two weeks. The total cost of the accommodation was $5,000. The appellant stayed at the address until he was informed by the victim that the payment was fraudulent. The victim then took steps to evict the appellant. The offending was aggravated by the fact that the victim was over 60 years of age.[16]
Count 11 - fraud
[16] ts 66.
Between 1 July 2016 and 1 August 2016, the appellant attempted to create a number of accounts online under various false names with Epic Delivery. Epic Delivery is an app which allows customers to purchase goods and services online and have them delivered to the purchaser. The appellant managed to establish an account with Epic Delivery using stolen identification and credit card details. He used the account to purchase, in four different orders on the same day, a drill, shoes, fast food and liquor to the total value of $822.96. Later, Epic Delivery was required to repay this amount in full.[17]
Count 12 - possession of identification material with intent to commit an offence
[17] ts 67 - 68.
On 18 July 2016, the appellant was at a Coles supermarket in Baldivis. A store attendant witnessed the appellant selecting items from the menu of a self‑service checkout screen that did not match the items in his shopping trolley. Ultimately, the store manager contacted the police who attended and arrested the appellant. A search of the appellant revealed a number of items of identification in his possession which he was not entitled to possess, including two Western Australian driver's licences, two Indian driver's licences, a Mastercard, an Occupational Health and Safety construction induction card and a Red Cross donation card.[18]
Count 13 - possession of stolen and unlawfully obtained property
[18] ts 68.
The police search conducted on 18 July 2016 also revealed that the appellant was in possession of a Crown gift card valued at $500, an Angus & Coote gift card valued at $1,000 and an iTunes voucher valued at $550, all of which were suspected to have been unlawfully obtained.[19]
Count 14 - aggravated fraud
[19] ts 69.
On 29 July 2016, the appellant booked a unit in South Perth for three weeks via the online accommodation platform Stayz. He did so using a false name and fraudulently obtained credit card details. The value of the accommodation booked by the appellant was $2,584.68, which included fees charged by Stayz to the owner. On 2 August 2016, the appellant took up occupancy of the unit. Later that day, detectives from the Major Fraud Squad entered the unit and arrested the appellant. The offending was aggravated by the fact that the victim was over the age of 60 years.
Count 15 - possession of identification material with intent to commit an offence
In a search conducted by police on 2 August 2016, the appellant was found in possession of a credit card and identification materials, none of which he was entitled to possess.
Count 16 - aggravated fraud
On 10 August 2016, the appellant made an online booking through Stayz to rent a property in Lynwood. He provided the owner of the property with TR's credit card, the details of which the appellant had fraudulently obtained. On 12 August 2016, TR contacted Stayz to query why his credit card had been charged. The transaction was reversed and Stayz incurred a loss of $3,290. On 16 August 2016, police attended at the Lynwood property and located the appellant. The offending was aggravated by the fact that the victim was over 60 years of age.
Count 17 - possession of identification material with intent to commit an offence
On 31 August 2016, police executed a Misuse of Drugs Act 1981 (WA) search warrant at an address in Hillman. As the appellant attempted to flee the premises he was observed discarding items under a parked vehicle. The items that were discarded by the appellant included identification material that he was not entitled to possess, including a Western Australian driver's licence, a Coles Platinum Mastercard and a bet365 Visa card.
Counts 14 to 17 were all committed while the appellant was on bail.
The total amount defrauded or attempted to be defrauded by the appellant was $196,947.80.
The appellant's personal circumstances
The appellant was 33 years of age at the time of sentencing. The sentencing judge said that he found it difficult to make precise conclusions about the appellant's childhood, but found that the appellant did not grow up in a 'nurturing and supportive environment'.[20]
[20] ts 97.
The appellant experienced learning difficulties at school and left after completing year 10. Since then, the appellant has been employed only once and does not have any formal educational or vocational qualifications.[21]
[21] ts 97.
Since his teenage years, the appellant has abused prescription drugs from time to time and engaged in binge‑drinking. At the time of the offending, the appellant was homeless, unemployed and addicted to online betting and methylamphetamine.[22]
[22] ts 97 - 98.
The appellant has a long prior criminal history as an adult, including for offences of fraud, attempted fraud, possessing stolen or unlawfully obtained property, forgery, unauthorised impairment of electronic communications and an offence of indecent assault. He has been sentenced to terms of imprisonment. In 2014, he was sentenced in the District Court to 12 months' imprisonment for offences of fraud and dishonestly obtaining personal financial information. In 2010, he was sentenced to 9 months' imprisonment, to be released forthwith upon entering into a recognisance to be of good behaviour for 12 months, in respect of three offences of unauthorised impairment of electronic communications, contrary to s 477.3(1) of the Criminal Code (Cth).
The expert reports
His Honour was provided with expert reports written by a forensic consultant psychiatrist, Dr Gosia Wojnarowska, dated 21 March 2019, and a psychologist, Ms Kaye Houghton, dated 20 February 2019. Both found the appellant to be an unreliable historian.
In Dr Wojnarowska's opinion, the appellant does not suffer from a major psychiatric disorder or an intellectual disability.[23] She noted that, apart from an episode of drug‑induced psychosis in 2010/2011, the appellant has functioned 'well from a mental health point of view, demonstrating intact cognitive ability while engaged in fraud‑related activity and online gambling'.[24]
[23] Dr Wojnarowska's report, page 3.
[24] Dr Wojnarowska's report, page 3.
Dr Wojnarowska stated that the appellant's 'repeatedly demonstrated disregard for societal norms, self‑serving and exploitative behaviours' were consistent with a diagnosis of APD. She concluded that the appellant's gambling, drug and alcohol abuse, as well as his antisocial attitudes, were causal factors in his offending.[25] In her opinion, the appellant has a Cluster B personality disorder with histrionic and strong antisocial traits.[26]
[25] Dr Wojnarowska's report, page 9.
[26] Dr Wojnarowska's report, page 3.
Ms Houghton observed that:[27]
[The appellant's] offending using electronic media, including past and current offending and his repetitively telling me to look up Google, indicates that he gains some psychological reward for the notoriety he perceives his offending affords him. Further, his consistent comments such as 'Google my name'; his comments that it is 'really easy' to purchase and use identification on the 'dark net'; his proudly telling me that he had been named on the '[A]nonymous' website, an infamous website dedicated to computer hackers; and his laughing when I asked him how he had created false identification and him explaining that I simply had to download an 'app' on my phone, suggests that he feels a sense of mastery in relation to his ability to use the [i]nternet for his own personal gain.
[27] Ms Houghton's report, page 12.
Ms Houghton stated that, based on the appellant's presentation and information obtained from him and his family, combined with his criminal history, the appellant met the DSM‑5 criteria for APD.[28] She noted that the appellant's offending behaviour 'impresses as reckless, foolhardy, impulsive and uninhibited by possible consequences'.[29] She continued:[30]
[The appellant's] offending, past and current, appears related to his defending and enhancing his reputation as a 'clever' person who is able to use computers to his own financial advantage. He is able to exploit perceived opportunities for his own benefit and this further escalates his perception of his own grandiosity.
[28] Ms Houghton's report, page 11.
[29] Ms Houghton's report, page 12.
[30] Ms Houghton's report, page 12.
There was no statement in either report that suggested, let alone established, that the appellant's APD reduced the moral culpability of his offending.
Sentencing remarks
In the sentencing remarks, his Honour referred to six factors which demonstrated the seriousness of the appellant's offending.[31]
[31] ts 94 - 96.
First, the frequency of the offending, being 17 offences committed across nine months, meant that the appellant's conduct could not be considered an 'uncharacteristic aberration'.
Secondly, the offending could not be described as opportunistic; rather, it revealed a 'calculated pattern of deception which demonstrated both effort and persistence'.
Thirdly, his Honour noted that the overall cost to the victims of the appellant's offending was approximately $200,000, which was unlikely to be repaid. His Honour also noted the inconvenience caused by the appellant's actions to the victims.
Fourthly, his Honour observed that six of the offences were committed in circumstances of aggravation as the victims were of, or over, the age of 60 years. Further, all of the short‑stay providers and Epic Delivery were small businesses.
Fifthly, his Honour noted, in relation to the counts of possession of identification material with intent to commit an offence, the amount of the material and the fact that it had been obtained on the dark web.
Sixthly, his Honour noted that the appellant's offending was motivated by a need to fund his lifestyle, and that his behaviour showed a complete disregard for the owners of the credit cards and the affected business operators. It was while explaining this factor that his Honour made the impugned remark the subject of ground 6, which we will deal with later in these reasons.
In addition to the matters referred to in [43] ‑ [48], his Honour observed that the seriousness of each of counts 14 to 17 was elevated by reason that they were committed while the appellant was on bail for similar offending.
His Honour found, in effect, that the only significant mitigating factor was the appellant's pleas of guilty. The pleas were entered after the matter had been listed for a four‑week trial.[32] Pursuant to s 9AA of the Sentencing Act, his Honour gave a reduction of 15% for the guilty pleas.
[32] ts 72.
His Honour found that the appellant was not genuinely remorseful for his offending. His Honour observed that the appellant was beginning to show some insight into what drove his offending and had acknowledged the role that his drug and alcohol abuse played in it.[33] The sentencing judge said that he allowed some leniency on the basis that the appellant had 'just started on his rehabilitation journey'.[34]
[33] ts 98 - 99.
[34] ts 101.
His Honour had regard to the expert reports which we earlier summarised. He accepted that the appellant has APD.
His Honour referred to Dr Wojnarowska's opinion that the appellant's gambling and alcohol and drug use was a causal factor of the offending.[35] His Honour said that the appellant's illicit drug use was voluntary and that he was morally culpable for the predictable consequences of his addictions. Accordingly, they were not a mitigating factor.[36]
[35] ts 100.
[36] ts 99.
His Honour said that he was not satisfied on the balance of probabilities that the appellant's APD reduced his moral culpability for his offending, although the offending was causally related to this condition.[37]
[37] ts 100.
General principles: appeal against sentence
The principles applicable to appeals against sentence on the grounds advanced by the appellant are well‑established. They may be summarised as follows:[38]
(1)Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to the crime, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[38] Hayward v The State of Western Australia [2020] WASCA 57 [24].
It is convenient to deal, first, with the allegations of express error in grounds 6, 7 and 8. We will then deal with the allegations of implied error in grounds 1 to 5.
Ground 6: use of funds
As stated in [48] above, the remark impugned by ground 6 was made by his Honour in the course of explaining one of the factors that made the offending more serious. His Honour said:[39]
The final factor indicating seriousness is there's nothing in the - your use of the funds which tempers the seriousness of your offending. Rather, I accept the State's submission that your offending was motivated to fund your lifestyle, albeit in somewhat modest terms. But what your behaviour did was [show] a complete [disregard] for the owners of the credit cards and the business operator affected by your actions. (emphasis added)
[39] ts 96.
It is the italicised sentence that the appellant says is erroneous.
Ground 6: the appellant's submissions
The appellant's written submissions contend that the sentencing judge should have considered the nature of the appellant's spending of the defrauded funds and the seriousness of the impact on the victims as mitigating factors, and that his failure to do so was in error.[40]
[40] Appellant's submissions, par 43.
However, in oral submissions, counsel for the appellant contended that the express error was that his Honour considered the appellant's use of the defrauded funds as an aggravating factor.[41]
Ground 6: the respondent's submissions
[41] Appeal ts 4 - 5.
The respondent submitted that there was no mitigation to be found in the appellant's use of the funds that he defrauded. The respondent characterised most of the appellant's expenditure as 'frivolous', and submitted that, in context, the impugned remark was simply an acknowledgement by his Honour of the absence of a mitigating factor.
Ground 6: disposition
There is no merit to ground 6.
We accept the respondent's submission that the impugned remark, when read in the context of the paragraph of the sentencing remarks in which it appears, is merely an acknowledgement of the absence of a mitigating factor. This is clear, having regard to the language used by his Honour and, in particular, the statement, 'There's nothing in the - your use of the funds which tempers the seriousness of your offending'.
Although the impugned remark was made in that part of the sentencing remarks which described the serious aspects of the appellant's offending, it is in the unitalicised passage set out at [57] above that his Honour explains the seriousness of the appellant's conduct. What aggravated the appellant's offending was that, apart from count 2, the victims of the appellant's offending were small business proprietors who were vulnerable to the actions of a fraudster and for whom even modest losses had the potential to adversely impact upon their livelihoods.
The submission that the appellant's use of the funds that he defrauded was mitigating cannot be accepted. This was not a case where the appellant committed the offences of dishonesty out of need to provide for the necessities of life. While such a submission may, in some cases, attract limited mitigation, the appellant's offending cannot fairly be characterised in this way.
On the unchallenged findings of the sentencing judge, it is clear that the money the appellant defrauded was used to fund his gambling addiction, accommodation, taxi fares and (as his counsel conceded)[42] some illicit drug use. The appellant's gambling addiction could not be viewed as a need.[43]
[42] ts 83.
[43] See also McNab v The State of Western Australia [2010] WASCA 66.
As far as the money was used to pay for accommodation, it is notable that the accommodation sought by the appellant was more, and in some circumstances substantially more, than basic.
We observe that the appellant's counsel, in the course of his plea in mitigation before his Honour, accepted, in substance, that there was no mitigation to be found in the use of the fraudulently obtained money. He said:[44]
[T]he use of the fraudulently gained money was largely accommodation, transportation, some food, shoes and, no doubt, some drug use … not that it makes it any less wrong, but it's not as though the money was used for jewellery or overseas travel or any of those types of things. (emphasis added)
[44] ts 83.
This submission reflects defence counsel's approach which was, in effect, to emphasise to the sentencing judge that the money the appellant defrauded was not put to such uses as jewellery or overseas travel or other luxuries. In other words, defence counsel was making the point that the present case was not one where the offending behaviour was aggravated because the defrauded moneys were used to fund a luxurious lifestyle.
We would refuse leave to appeal on ground 6.
Grounds 7 and 8: the sentencing judge's treatment of the appellant's personality disorder
Ground 7 states:
The learned sentencing judge erred by stating that this form of personality disorder does not reduce the appellant's moral culpability when his [H]onour found that the anti‑social personality disorder was causative of the offending.
Ground 8 states:
The learned sentencing [j]udge erred by stating that if he was wrong regarding the statement in ground 7 above, that there is an increased need to impose a sentence of sufficient severity to protect the public from future offending of the same kind.
In the course of defence counsel's plea in mitigation, the sentencing judge said to defence counsel that, while he accepted that there was a causal link between the appellant's APD and his offending, it was not apparent on the materials before him that it reduced the appellant's moral culpability in the sense 'that it deprives him of the intellectual capacity to be deterred from committing offences by the prospect of being punished'.[45] Defence counsel accepted there was nothing in the materials before the sentencing judge that would enable him to make the argument that the appellant's APD reduced his moral culpability.[46] Defence counsel also accepted that any moderation to the sentence by reason of the appellant's 'mental issues ha[d] to be tempered with the risk to the community'.[47]
[45] ts 79.
[46] ts 79.
[47] ts 83.
Against the background of the expert reports and the submissions made by defence counsel, his Honour said:[48]
Rather, the formal diagnosis by the psychiatrist is that of an antisocial personality disorder. The psychiatrist observed you repeatedly demonstrated disregard for societal norms as well as self‑serving and exploitative behaviours. The psychiatrist opines your antisocial personality disorder was causative when you were offending, which is a finding that I accept.
The psychologist came to the same opinion. She observes your offending behaviour impresses as reckless, foolhardy, impulsive and uninhibited by possible consequences.
Now, I'm not satisfied on the balance of probabilities that this form of personality disorder reduces your moral culpability for your offending. You clearly have the intellectual capacity to be deterred from committing offences by the prospect of being punished if the offence is committed and detected.
[48] ts 100.
His Honour continued:[49]
However, if I'm wrong about this, there will be a counter about an increased need to impose a sentence of sufficient severity to protect the public from future offending of the same kind. So it would not impact the overall findings as to sentence.
Grounds 7 and 8: the appellant's submissions
[49] ts 100.
In support of ground 7, the appellant submitted that as the sentencing judge found that there was a causal connection between the appellant's APD and his offending behaviour, the 'necessary' conclusion was that the appellant's moral culpability for the offending was reduced, and that his Honour erred in failing to so find.[50]
[50] Appellant's submissions, par 49.
In support of ground 8, the appellant submitted that his Honour erred by finding that even if the appellant's APD had reduced his moral culpability, the need for public protection 'countered' this reduction. The appellant asserted that the 'type of offending' engaged in by the appellant did not give rise to an increased need for public protection.[51]
Grounds 7 and 8: disposition
[51] Appellant's submissions, pars 53 - 54.
Grounds 7 and 8 proceed on the assumption that the appellant's APD is a mental impairment of a kind which is to be assimilated with the well‑established sentencing principles concerning the effects of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self‑induced).
These sentencing principles have been stated and discussed by this court in many cases, including in Thompson v The Queen;[52] F v The State of Western Australia;[53] Krijestorac v The State of Western Australia;[54] Wheeler v The Queen [No 2];[55] Gok v The Queen[56] and Abduramanoski v The State of Western Australia.[57] These principles are derived from the statements made by the Victorian Court of Appeal in R v Tsiaras[58] and R v Verdins.[59]
[52] Thompson v The Queen [2005] WASCA 223.
[53] F v The State of Western Australia [2008] WASCA 100.
[54] Krijestorac v The State of Western Australia [2010] WASCA 35.
[55] Wheeler v The Queen [No 2] [2010] WASCA 105.
[56] Gok v The Queen [2010] WASCA 185.
[57] Abduramanoski v The State of Western Australia [2019] WASCA 216.
[58] R v Tsiaras [1996] 1 VR 398.
[59] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
In Tsiaras, the court (Charles & Calloway JJA & Vincent AJA) said that there were at least five ways in which mental impairment may be relevant to the sentencing of an offender:[60]
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[60] Tsiaras (400).
In Verdins, the court affirmed the Tsiaras principles and explained that they are not confined to offenders who can be characterised as having a 'serious' mental disorder or a 'serious' mental impairment. Rather, the principles apply to any offender who, either at the time of the offending or at sentence, has 'a mental disorder, abnormality or an impairment of mental function'.[61]
[61] Verdins [5]. See also Gok [55].
While an offender's mental illness or mental impairment will often be a mitigating factor, it is not the case that they always result in a lower sentence. As Gleeson CJ pointed out in R v Engert,[62] the existence of a mental disorder is one of the factors which must be balanced with other factors to produce a just sentence. It is incorrect to assume that the existence of a causal relationship between the mental disorder and the offending will automatically result in a lesser sentence. As his Honour explained:
For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public.
[62] R v Engert (1995) 84 A Crim R 67, 71.
Thus, in Lindsay v The State of Western Australia,[63] McLure P (Buss & Mazza JJA agreeing) said:[64]
[M]ental illness may weigh in the balance both positively and negatively with the consequence that it has no effect or significant effect on the sentence ultimately imposed.
[63] Lindsay v The State of Western Australia [2010] WASCA 142.
[64] Lindsay [23].
In The State of Western Australia v Malone,[65] Buss JA (McLure P & Mazza JA agreeing) observed that the effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self‑induced) on the moral culpability of an offender is variable and depends upon the nature, effect and severity of the condition and its symptoms. His Honour continued:[66]
An offender who seeks to rely on a mental disorder, intellectual disability or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her functioning to such an extent as to reduce the moral blameworthiness or culpability of the offending behaviour.
[65] The State of Western Australia v Malone [2015] WASCA 188.
[66] Malone [74].
As Buss JA (Pullin & Mazza JJA agreeing) said in The State of Western Australia v Khasay:[67]
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise'.
[67] The State of Western Australia v Khasay [2014] WASCA 58 [41].
In Wheeler [No 2], Owen JA emphasised that where the degree of moral culpability is in issue, it remains necessary to identify a mental condition which is abnormal, which affects mental functioning and which is causative of the offending behaviour. Although it may not be necessary to label the condition by reference to one of the well‑known disorders, nor is it sufficient to point to incidents which are common to the human condition, such as momentary and irrational jealousy or anger, or lapses in judgement, as abnormalities which reduce moral culpability.[68]
[68] Wheeler [No 2] [59].
In Verdins, it was acknowledged that the phrase 'mental disorder or abnormality' is apt to cover a wide variety of conditions.[69] It was said in that case that a sentencing court should not have to concern itself with how a particular condition is to be classified. Rather, what matters is what the evidence shows about the nature, extent and effect of a mental impairment experienced by the offender at the relevant time.[70]
[69] Verdins [7].
[70] Verdins [8].
Whether an antisocial personality disorder is a mental disorder, abnormality or impairment of mental functioning that is encompassed within these legal principles has not been determined by this Court. However, in the recent case of Brown v The Queen,[71] a bench of five justices of the Victorian Court of Appeal (Maxwell P, Niall, T Forrest, Emerton & Osborn JJA) held that an offender diagnosed with a personality disorder should not be treated differently from any other offender who seeks to rely on an impairment of mental functioning as mitigating a sentence in one or other of the ways identified in Verdins. Their Honours stated that whether, and to what extent, an offender's mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court.[72] Their Honours also stated that the question of whether an offender's personality disorder engages any of the Verdins principles should depend, not on the particular diagnostic label attached to it, but on what the expert evidence before the sentencing court showed about how the condition affected the offender's mental functioning at the time of the offending, and/or about how it would affect the offender in the future.[73]
[71] Brown v The Queen [2020] VSCA 212.
[72] Brown [6].
[73] Brown [5].
It is unnecessary to decide whether the reasoning in Brown should be applied in this State. This is because, as we explain below, there was no evidential basis upon which to conclude that the appellant's APD impaired his mental functioning in any relevant manner.
Assuming (without deciding) that the appellant's APD was a mental impairment capable of reducing his moral culpability for his offending behaviour, and accepting (as the sentencing judge found) that the appellant's APD was causative of that behaviour, whether the appellant's moral culpability was in fact reduced depended upon the existence of evidence that proved on the balance of probabilities that the APD impaired his mental functioning in such a manner and to such an extent as to reduce his moral culpability.
As defence counsel acknowledged at first instance,[74] there is no evidence to this effect. There was nothing in the way of expert evidence before the sentencing judge that was capable of demonstrating that the appellant's APD reduced his moral culpability for the offending.
[74] ts 79.
The evidence before the sentencing judge did not establish that, and did not explain how, the appellant's APD impacted upon his moral culpability so as to mitigate punishment. It did not explain if, how, and to what extent the appellant's mental functioning, his ability to appreciate the wrongfulness of his actions, or his ability to control his actions, was impaired. There was no evidence before the sentencing judge which showed that the appellant did not have the intellectual capacity to be deterred from committing offences by the prospect of being punished, or that such a capacity was, in any way, affected. The mere existence of a causative link between the appellant's APD and the offending is not, without more, sufficient to ground a conclusion that his moral culpability was reduced.
His Honour did not err as alleged in ground 7.
There is no substance in ground 8. Even if the appellant's APD was a mental impairment of the type that engaged the sentencing principles referred to above, having regard to those principles, and to the material before him, his Honour was entitled to conclude that the appellant's APD would act negatively as much as positively in the sentencing process because it increased the importance of personal deterrence and the need to protect the public. Contrary to the proposition in ground 8, such an approach was well open to his Honour and was not erroneous.
Further, there is no merit in the submission that the 'type of offending' engaged in by the appellant did not give rise to an increased need for public protection. If, by this submission, the appellant is contending that public protection is of little importance in the sentencing of offenders who commit property offences, such a proposition is misconceived. Offenders like the appellant, who systematically engage in dishonest and fraudulent conduct, can do great harm to victims and erode public confidence in financial systems. The public is entitled to be protected from the predations of those who persistently engage in such conduct. Ground 8 has no merit.
Leave to appeal should be refused on grounds 7 and 8.
Grounds 2 to 5: manifest excess
We will deal with these grounds together.
Grounds 2 to 5 allege that the individual sentences imposed for counts 2, 3, 4 and 11 were manifestly excessive.
It will be recalled that counts 2, 4 and 11 were counts of fraud and count 3 was an offence of aggravated fraud. The sums defrauded and the individual sentences that were imposed were:
•Count 2 - $15,359.40 - 3 years' imprisonment
•Count 3 - $450 - 2 years' imprisonment
•Count 4 - $1,153.92 - 20 months' imprisonment
•Count 11 - $822.96 - 18 months' imprisonment
Save for count 3, all of the abovementioned offences carried a statutory maximum penalty of 7 years' imprisonment. Count 3, being an aggravated offence, carried a statutory maximum penalty of 10 years' imprisonment.
The appellant submitted, in respect of each of the impugned sentences, that (1) it was manifestly excessive having regard to the amount defrauded; (2) the level of sophistication in the commission of the offence was 'not high'; (3) the victim in each instance was not vulnerable; (4) the offence did not involve a breach of trust and (5) the sentences imposed were inconsistent with comparable cases.
The respondent submitted that the impugned sentences were not manifestly excessive. It was contended that the gravity of each count is not to be measured solely by the amount defrauded. Rather, citing the observations made by McLure P in McNamara v The State of Western Australia,[75] it was open to the sentencing judge to conclude that the gravity of each offence was not materially affected by the amount defrauded because each offence was a manifestation of a broader system of dishonesty.
[75] McNamara v The State of Western Australia [2010] WASCA 193 [13].
Counsel for the respondent observed that, in relation to counts 3, 4 and 11, the victims were small businesses and, to that extent, they may be said to have been vulnerable.
Counsel for the respondent submitted, in effect, that the seriousness of counts 2 and 11 was elevated by the fact that each of these offences involved not only one fraudulent act; rather, each was constituted by a number of fraudulent transactions.
Disposition: grounds 2 to 5
The maximum penalty for counts 2, 4 and 11 was 7 years' imprisonment. The maximum penalty for count 11 was 10 years' imprisonment.
It is unnecessary to repeat the facts of each of the impugned offences, the appellant's personal circumstances or the sentencing remarks.
The appellant committed each of counts 2, 3, 4 and 11 as part of a spree of dishonest behaviour beginning in November 2015 and concluding in August 2016. All of the fraud and attempted fraud offences (whether aggravated or unaggravated) involved the fraudulent use of unlawfully obtained credit card details which enabled the appellant to obtain, relevantly to counts 2, 3, 4 and 11, goods and services.
Save for count 2, the victims were small business proprietors for whom even modest losses have the potential to adversely impact upon their livelihoods. They may be considered vulnerable to the predations of fraudsters.
Apart from the pleas of guilty entered by the appellant, there was virtually no mitigation. The appellant is not a person of prior good character, is not youthful or remorseful and has no insight into his offending. Having regard to the appellant's criminal history and his APD, as explained in the expert reports that were before the sentencing judge, personal deterrence and the protection of the public were significant sentencing considerations.
In support of grounds 2 to 5, the appellant relied upon a number of cases which had also been cited to support the totality ground.[76] The outcomes in these cases provide no real assistance in relation to grounds 2 to 5. The only case cited by the appellant specifically with respect to grounds 2 to 5 is the single judge decision of Vargess v Hughes.[77] This case is of no assistance. One case, or a small number of cases, is insufficient to establish the standards of sentencing customarily imposed for an offence. Moreover, consistency in sentencing is to be achieved through the work of this court rather than single judge decisions.[78]
[76] Pflug v The State of Western Australia [2018] WASCA 65; Smallbone v The State of Western Australia [2008] WASCA 167; Wittensleger v The State of Western Australia [2014] WASCA 205; Nikaghanri v The State of Western Australia [2009] WASCA 192; Barrett v The State of Western Australia [2007] WASCA 21; Alabbasi v The State of Western Australia [2012] WASCA 133; Deville v The State of Western Australia [2004] WASCA 264; Atherley v The State of Western Australia [2017] WASCA 53; The State of Western Australia v Chapman [2012] WASCA 203 and R v Black [2002] WASCA 26.
[77] Vargess v Hughes [2017] WASC 291.
[78] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56].
The respondent sought to support its submission that the gravity of each of the impugned offences was not materially affected by the amount defrauded by reference to Nikaghanri v The State of Western Australia and McNamara v The State of Western Australia.
In Nikaghanri, the offender was convicted of 18 counts of aggravated fraud and eight counts of fraud contrary to s 409(1)(c) of the Code, and 25 counts of using another person's passport for identification purposes contrary to s 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth). Apart from two counts of aggravated fraud and two counts of using another's passport, which were the subject of guilty pleas, the appellant was convicted after trial of the remaining offences. The amounts the subject of the individual fraud offences ranged from a minimum of $1,000 to a maximum of $10,792.51. The offender was sentenced to 3 years' imprisonment for each of the aggravated fraud offences and 2 years' imprisonment for each of the fraud offences.
The offender in Nikaghanri was engaged in what was described as an 'advance fee fraud scheme', the gist of which was to trick prospective victims into parting with funds by persuading them that they would receive a substantial benefit in return for providing some payments in advance. The scheme was elaborate, sophisticated and involved 'a rare combination of factors that elevate[d] the seriousness of the offences'[79] including that the appellant acted with others (some of whom were overseas) and that the offending had the hallmark of organised crime.[80] The impact of the offending on some of the victims was severe.
[79] Nikaghanri [19].
[80] Nikaghanri [19].
The offender in Nikaghanri challenged some of the individual sentences and the total effective sentence of 6 years' imprisonment. Leave to appeal on these grounds was refused and the appeal was dismissed. In rejecting the contention that some of the individual sentences imposed for the fraud offences were manifestly excessive having regard to the fact that the benefit received was less than $5,000, McLure JA emphasised that the appellant's offending was 'at the high end of the scale of seriousness of crimes' of their type and that, having regard to all relevant sentencing factors, the amount of the benefit the subject of the individual fraud offences was a relatively minor factor in assessing the seriousness of the offending.[81]
[81] Nikaghanri [22] - [23].
In McNamara v The State of Western Australia, the appellant was convicted after trial of 180 counts of stealing as a servant contrary to s 378(7) of the Code. In this case, the offender was employed as the manager of a business that sold hair care products. On 180 separate occasions over a period of just under two years, the appellant stole cash which he had received from the sale of the employer's products. The individual amounts stolen by the appellant ranged from $20 to $1,590, with the bulk of the offences involving thefts of sums ranging between $101 ‑ $499. The offender was sentenced to 12 months' imprisonment on each of the 180 counts. The sentencing judge ordered that two of the counts be served cumulatively. Thus, the total effective sentence that was imposed upon the offender was 2 years' immediate imprisonment.
The appellant alleged that all of the terms of imprisonment were manifestly excessive as to type, not length. The offender contended that the sentencing judge should have imposed a suspended term of imprisonment on each and every count. The offender argued that the sentencing judge erred in imposing the same sentence for each offence regardless of the amount stolen.
McLure P (with whom Newnes & Mazza JJA agreed) held that the individual sentences that were imposed were not manifestly excessive and that the sentencing judge did not err in imposing the same sentence for each offence regardless of the amount stolen. Her Honour said that it was open to the sentencing judge to conclude that the gravity of each count was not materially affected by the amount stolen in circumstances where each offence is an individual manifestation of a broader system implemented by a person entrusted with the conduct of the business.[82]
[82] McNamara [13].
Returning to the present case, it is plainly distinguishable from Nikaghanri and McNamara. Neither case establishes, as a general proposition, that the benefit obtained or attempted to be obtained in a dishonesty offence is immaterial or of little significance in the assessment of the gravity of the offence. To the contrary, the amount defrauded or attempted to be defrauded and any loss incurred by the victim will often be important in the assessment of the gravity of an offence. The outcomes in Nikaghanri and McNamara turned on their particular facts and the observations in [114] and [117] above must be understood in the context of those facts. They illustrate that there will be cases where the seriousness of the offender's conduct is of such a level that the amount of the benefit obtained is of less importance. We observe that, in the present case, as serious as the appellant's offending was, it was not of the same order as in Nikaghanri. Further, we observe that, unlike the appellant in the present case, the offender in McNamara was employed by the victim and committed many more offences over a longer period of time.
The offending in respect of each of the offences the subject of grounds 2 to 5 was serious, involving, as it did, the use of fraudulently obtained credit card details to deceive the proprietors of small businesses. Each offence was committed in the context of systematic and persistent fraudulent conduct by the appellant. We would not characterise the offending as unsophisticated. Even if it could be so characterised, an unsophisticated fraud may nevertheless be effective. The fact a fraud offence is carried out in an unsophisticated way is not generally a mitigating factor. Rather, it constitutes the absence of an aggravating factor.
Despite these considerations, in the assessment of whether a particular sentence imposed upon the appellant was manifestly excessive, the modest amount defrauded must be considered.
We are mindful that each sentence was ordered to be served concurrently, which softens its effect.[83]
[83] Giglia v The State of Western Australia [2010] WASCA 9 [40].
While we are satisfied that a term of immediate imprisonment was the only appropriate penalty for all of the offences committed by the appellant, we conclude that the length of the terms imposed in each of counts 3, 4 and 11 was not merely heavy, but that, when regard is had to the maximum penalty, the circumstances of each offence (including the modest amount defrauded), the plea of guilty for each offence, the cases we have referred to and the appellant's personal circumstances, each of the sentences did not reflect an appropriate exercise of the sentencing discretion. Each sentence was unreasonable or plainly unjust. It was manifestly excessive. Therefore, we would uphold grounds 3, 4 and 5.
We have come to a different view with respect to ground 2 which concerns the sentence imposed on count 2.
The amount defrauded from the victim in count 2 ($15,399.40) was considerable and involved fraudulent behaviour which extended over a 17‑day period during which the appellant took many separate taxi rides.
While we regard the individual sentence on count 2 as being at the outer limit of an appropriate exercise of the sentencing discretion, it does not fall outside that limit. We have concluded that the sentence was not unreasonable or plainly unjust. Although we would grant leave to appeal on ground 2, this ground has not been made out.
Ground 1: totality
At the hearing of the appeal, counsel for the appellant agreed with the proposition put to her by the court that, if it concluded that any of the individual sentences were manifestly excessive, it would proceed to resentence the appellant on all of the offences committed by him, and made no submission in opposition to the proposition that it would be open to the court to impose the same total effective sentence that was imposed upon the appellant at first instance.[84] The State did not challenge this approach. There having been no argument on the question of whether and under what conditions error in relation to a sentence ordered to be served wholly concurrently triggers a resentence by this court on all counts, we are content to proceed on the parties' shared assumption. That assumption is consistent with this court's approach in Sathitpittayayudh v The State of Western Australia.[85]
[84] Appeal ts 14.
[85] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152.
Adopting the approach taken by the parties, and having concluded that the individual sentences on counts 3, 4 and 11 were manifestly excessive, we proceed to resentence the appellant on all counts. Consequently, it is unnecessary to decide ground 1.
Leave to appeal in relation to ground 1 should be refused.
Resentencing
This court has all of the material it requires to resentence the appellant. All of the background, including the circumstances of the offending and the appellant's personal circumstances, has already been described and does not require repetition.
We are mindful of the maximum penalties for the offences, set out at [4] above.
Each of the offences committed by the appellant was serious. Plainly, the most serious offence committed by the appellant was count 1 which involved the establishment, by fraudulent means, of 17 bet365 accounts, linking them to the unlawfully obtained details of 57 credit cards. The appellant then proceeded to use the online betting accounts over a period of almost six months to lay numerous bets to the value of $127,061. Bet365 incurred a substantial loss as a result of the appellant's fraudulent activity. The other fraud and aggravated fraud offences, while involving sums considerably less than count 1, also involved, albeit on a much smaller scale than count 1, the fraudulent use of unlawfully obtained credit card details. As we have already said, apart from the victim in count 2, the appellant targeted small businesses who are generally vulnerable to the kind of behaviour engaged in by the appellant. Each victim sustained a financial loss as a result of the appellant's offending.
Contrary to submissions put to the sentencing judge and, to some extent, reprised on appeal, while the appellant was homeless during the period of his offending, that does not mean that his offending was motivated by need rather than greed. The types of accommodation the appellant obtained or attempted to obtain as a result of his fraudulent behaviour were not basic and involved a standard of comfort inconsistent with the notion that the appellant's offending was motivated by need. Similarly, the appellant's use of the Swan Taxi app and his purchase of food, clothing and shoes reflect the pursuit of a more affluent lifestyle.
There is no mitigation to be found in the appellant's personal circumstances. Having regard to his criminal history and his personality type, he poses a considerable risk of reoffending. Both personal deterrence and the protection of the public are highly relevant sentencing considerations.
The only real mitigating factor is the appellant's pleas of guilty. In relation to each count we would, pursuant to s 9AA of the Sentencing Act, give a discount of 15% for the plea of guilty.
It has not been, and could not reasonably be, disputed that, having regard to all of the circumstances of the appellant's offending, the only appropriate sentence to be imposed is a term of immediate imprisonment.
In our opinion, the following sentences are commensurate with the seriousness of each of the offences committed by the appellant, having regard to all relevant sentencing principles and factors:
•Count 1 - 3 years 6 months' imprisonment
•Count 2 - 3 years' imprisonment
•Count 3 - 9 months' imprisonment
•Count 4 - 12 months' imprisonment
•Count 5 - 18 months' imprisonment
•Count 6 - 6 months' imprisonment
•Count 7 - 18 months' imprisonment
•Count 8 - 12 months' imprisonment
•Count 9 - 2 years' imprisonment
•Count 10 - 2 years' imprisonment
•Count 11 - 9 months' imprisonment
•Count 12 - 2 years' imprisonment
•Count 13 - 12 months' imprisonment
•Count 14 - 2 years' imprisonment
•Count 15 - 2 years' imprisonment
•Count 16 - 2 years' imprisonment
•Count 17 - 2 years' imprisonment
We now turn to questions of concurrency, cumulacy and totality.
The appellant engaged in repeated and systematic dishonesty over an extended period of time against multiple victims. It cannot be overlooked that counts 14 to 17 were committed on bail. The appellant defrauded a large sum of money and his victims have incurred substantial losses. Some accumulation of the sentences we would impose is required in order to properly reflect the overall seriousness of the appellant's offending.
In our opinion, a total effective sentence of 5 years 6 months' imprisonment is a proper reflection of the appellant's overall offending, having regard to all of the relevant sentencing considerations that we have mentioned, including personal deterrence and the protection of the public. We would structure the sentences that we have imposed by ordering that the sentences on counts 1 and 16 be served cumulatively, with all the other sentences to be served concurrently with the sentence on count 1. We would order that the appellant be eligible for parole and that the total effective sentence be taken to have taken effect on 14 December 2016.
Orders
The orders that we would make are as follows:
(1)Leave to appeal on grounds 1, 6, 7 and 8 is refused.
(2)Leave to appeal on grounds 2, 3, 4 and 5 is granted.
(3)The appeal is allowed.
(4)The sentences imposed by Gething DCJ on 29 June 2019 are set aside.
(5)The appellant is resentenced as follows:
• Count 1 - 3 years 6 months' imprisonment
• Count 2 - 3 years' imprisonment
• Count 3 - 9 months' imprisonment
• Count 4 - 12 months' imprisonment
• Count 5 - 18 months' imprisonment
• Count 6 - 6 months' imprisonment
• Count 7 - 18 months' imprisonment
• Count 8 - 12 months' imprisonment
• Count 9 - 2 years' imprisonment
• Count 10 - 2 years' imprisonment
• Count 11 - 9 months' imprisonment
• Count 12 - 2 years' imprisonment
• Count 13 - 12 months' imprisonment
• Count 14 - 2 years' imprisonment
• Count 15 - 2 years' imprisonment
• Count 16 - 2 years' imprisonment
• Count 17 - 2 years' imprisonment
(6)The sentences on counts 1 and 16 are to be served cumulatively, with all of the other sentences to be served concurrently with the sentence on count 1. For the avoidance of any doubt, the total effective sentence is 5 years 6 months' imprisonment. The appellant is eligible for parole and the total effective sentence is to be taken to have taken effect on 14 December 2016.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza23 OCTOBER 2020
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