Brown v Tasmania
[2008] TASSC 33
•2 July 2008
[2008] TASSC 33
CITATION: Brown v Tasmania [2008] TASSC 33
PARTIES: BROWN, Andrea Louise
v
TASMANIA (STATE OF)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 1/2008
DELIVERED ON: 2 July 2008
DELIVERED AT: Hobart
HEARING DATE: 4 June 2008
JUDGMENT OF: Crawford CJ, Slicer and Porter JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When granted – Particular offences – Other offences – Identity theft and computer-related fraud - Whether sentence was manifestly excessive.
Aust Dig Criminal Law [1011]
REPRESENTATION:
Counsel:
Appellant: I Crompton
Respondent: J Hartnett
Solicitors:
Appellant: Mackie Crompton
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 33
Number of paragraphs: 46
Serial No 33/2008
File No 1/2008
ANDREA LOUISE BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
SLICER J
PORTER J
2 July 2008
Orders of the Court
Appeal allowed.
Sentence of five years' imprisonment and order that the appellant is not to be eligible for parole until she has served 2½ years of the imprisonment, quashed.
Appellant sentenced to imprisonment for three years from 31 December 2007.
The appellant is not to be eligible for parole until she has served 18 months of the imprisonment.
Serial No 33/2008
File No 1/2008
ANDREA LOUISE BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
2 July 2008
The appeal concerns a sentence of five years' imprisonment, with a non-parole period of 2½ years. The sole ground of the appeal is manifest excessiveness.
The appellant pleaded guilty to 57 crimes of dishonesty, most of which concerned identity fraud. They were 30 counts of computer-related fraud (Criminal Code, s257B), four of obtaining goods by a false pretence (s250), six of forgery (s278), five of uttering (s279), one of attempting to dishonestly acquire a financial advantage (ss252A and 299), one of attempted computer-related fraud (ss257B and 299), two of personation (s288), four of receiving stolen property (s258), two of fraud on a creditor (s296(1)(a)), and two of engaging in money laundering (Crime (Confiscation of Profits) Act 1993, s67(2) (since repealed)). They may be categorised as constituting five series of events between 26 June 2006 and 5 September 2007. Most of the crimes, if not all, involved accomplices.
Counts 1 to 4 concerned events that commenced with the aggravated burglary of a house on 20 June 2006, in which many items of property were stolen, including a laptop computer worth $2,000. On 26 June 2006, the appellant received the computer, knowing it to be stolen, from an accomplice. Using the computer, she accessed the householder's bank account, altered personal information relating to it, changed the online banking facility to telephone banking, and, with intent to defraud, transferred $9,000 from the account into an account in her own name with another bank. At the same time, she arranged electronically for a further $9,000 to be transferred in the same way on 5 July 2006.
A bank detected the frauds and her bank account, into which she had transferred a total of $18,000, was frozen, with $7,494.48 remaining in it. On 15 August 2006, police interviewed her. She admitted what she had done. She claimed that she had been stood over by someone. She had only received between $1,500 and $2,000 for her own use, the rest going to the other person. At the conclusion of the interview, she was charged and bailed.
Counts 5 to 24 concerned events that commenced on 11 August 2006 with an aggravated burglary of a house, in which a backpack was stolen and a motor vehicle taken. The backpack contained personal papers, including a driver's licence, tax file number details, bankcards and bank details relating to two people. On the following day, the appellant and an accomplice received the contents of the backpack. Her accomplice was able to obtain the internet password for a bank account linked to one of the stolen cards and $5,000 was fraudulently transferred from the account by her accomplice, by using the internet, into an account of one Aichison, the accomplice's sister. Later that day, the accomplice transferred another $5,000 out of the first bank account into another account in the name of an associate, Laver, once again by using the internet. The appellant abetted the accomplice to perform those two transactions. On the same day, an accomplice, in the presence of the appellant, contacted the bank by telephone and, with the assistance of the stolen documents, and by falsely claiming to be the account holder, was able to fraudulently alter the password for the account. The appellant then advised her accomplice how to obtain a new customer registration number for telephone and internet access to the account and they achieved that. On 14 August 2006, the appellant aided and abetted her accomplice to use that number to transfer out of the account by telephone $8,500 into an account at a credit union in the name of Arnott. Another accomplice then withdrew the $8,500 from the credit union account. On the same day, the appellant used the telephone again to fraudulently transfer $15,000 out of another bank account, to which some of the stolen documents related, into the bank account from which the $8,500 had just been removed, the purpose being to "top it up" to allow further funds to be available for removal in the future. It is to be inferred that the two bank accounts were so linked to each other that it was possible to transfer funds from one to the other.
On 15 August 2006, the appellant telephoned the ANZ bank purporting to be the account holder and fraudulently attempted to transfer a further $15,000 from the account that had been topped up, into a Westpac account in the name of Allan. However, the holder of the ANZ account had contacted the bank to close the account prior to the transfer being processed and the attempt was unsuccessful. It was on that day that the appellant was interviewed by police in connection with counts 1 to 4, charged and bailed.
On 19 August 2006, the appellant telephoned the ANZ call centre purporting to be the holder of another account to which papers stolen on 11 August related. The operator accepted that she was who she purported to be. The appellant was able to achieve that by using the stolen papers, which included a driver's licence and information concerning the account holder's tax file number. She then arranged for a new customer identification number to be provided to her, thus enabling telephone and internet banking access to the account. She then accessed the account by internet and fraudulently transferred $2,000 from it into an ANZ bank account in the name of Terare. On the same day, she aided an accomplice to fraudulently transfer by internet a further $2,000 from the first account into yet another ANZ bank account in the name of Craggs.
On 20 August 2006, by internet, the appellant fraudulently transferred $2,000 once again into the account in the name of Terare and a further $2,500 into a building society account in the name of Gary. On 21 August 2006, an accomplice, in her presence, used the internet to fraudulently transfer another $2,000 from the same account into a Commonwealth bank account in the name of Darren. On 22 August 2006, an accomplice, in the presence of the appellant, fraudulently transferred a further $2,500 into the building society account in the name of Gary. Minutes later, while she was still with him, the accomplice used the internet to fraudulently transfer another $2,500 into that building society account. A little over two hours later, the appellant used the internet to fraudulently transfer another $8,000, this time into a credit card account of the holder of the bank account out of which the money was transferred. She immediately transferred the $8,000 out of the credit card account into a Commonwealth bank account in the name of an accomplice, Richard. At the same time, she fraudulently scheduled a transfer of $5,000 from the credit card account into the Richard account for the following day.
Police interviewed the appellant on 8 September 2006. She made full and frank admissions about what she had done. She claimed not to have received any personal financial benefit from her actions, notwithstanding that she had been promised varying amounts ranging from $500 to $1,500. She described herself as "the button presser", doing what other people told her to do. She provided the names of accomplices who were with her during the transactions. Police investigations were ongoing and it was expected that her co-operation would assist the prosecution of the accomplices.
Count 25, a charge of receiving stolen property, was committed in the following circumstances. On 4 or 5 May 2007, an aggravated burglary of a house was committed and property was stolen, including three cameras, binoculars, a barometer, a clock and a hip joint medical device. They were received by the appellant with the knowledge that they were stolen. The learned judge was informed that on 5 May, the appellant sold two of the cameras to a second hand shop for $90. None of the counts related to that sale.
On 8 May, police recovered the cameras. On 9 May, they searched the appellant's home and recovered the other stolen items. When interviewed that day, she said that they had come from a male acquaintance. She accepted that she knew the two cameras she had sold were stolen. She falsely claimed that the third camera had been owned by her for twelve months and that without her knowledge, the other items of property had been left at her home by the acquaintance. She was charged and bailed.
Counts 26 to 49 concerned events that commenced on 7 July 2007, when a woman's wallet was stolen from a vehicle. It contained personal information and her credit union card. She cancelled the card, arranging with the credit union for a new card, which could be used both for credit and access to a savings account, to be posted to her.
By 9 July, the stolen items had been received by the appellant and her friend and accomplice, Ms Bentley. One of them telephoned the credit union that day, impersonated the account holder, and advised that she had a new address at 6/56 Adelaide Street, South Hobart, a previous address of the account holder and the one shown on her driver's licence. As a result, the credit union later posted the new card, with information containing its PIN, to that address.
On 16 July, prior to the new card being posted out, the appellant and Bentley inquired twice about activating the new card and using it for telephone and internet banking. On 17 July, they persuaded the credit union's call centre operator to record a change to the mobile telephone number of the account holder to that of Bentley. On the same day, the appellant, by telephone, no doubt impersonating the account holder, persuaded an operator to create and record a new telephone banking access code, so that she could use it. On two occasions, she also inquired about what investment accounts of the account holder were linked to the account and how she could access their funds.
The new card and PIN were issued and delivered to the letterbox at the Adelaide Street address and the appellant, along with Bentley and a male accomplice, were parties to their collection from the letterbox. On three occasions, the appellant and Bentley unsuccessfully and fraudulently attempted to use the card at an ATM. The appellant then forged a handwritten letter to the credit union, in the name of the account holder, requesting that the card be activated. She also forged an account from Telstra, addressed to the account holder. She created it on her home computer and had it printed at Officeworks.
On 17 July, a male associate, instigated by the appellant and Bentley, presented those documents to the credit union indicating that the account holder was in hospital. The purpose was to facilitate the activation of the new card. The credit union called the mobile telephone number on file, which was Bentley's number, to verify the information it had. The card was activated and telephone access was provided. On the same day, by internet, the appellant fraudulently transferred $416 from one of the account holder's accounts with the credit union to another of her accounts and unsuccessfully attempted to make another such transfer in the sum of $500. Using an ATM, she and Bentley then fraudulently withdrew $100 from the second of those accounts. They then went to another ATM and fraudulently withdrew another $420.
On 18 July 2007, an unknown person forged a form requesting the redemption of funds in one of the account holder's investment accounts that was linked to the primary account. An unknown person uttered the forged document at a branch of the credit union. Between 18 and 20 July, the appellant went to ATM machines in the greater Hobart area to withdraw funds and check balances. On 18 July, $1,000 was withdrawn in that way, followed by two withdrawals of $500 each on 19 July and $1,000 on 20 July. Between 18 and 20 July, the card was also used at a number of Hobart businesses to either purchase goods or obtain and utter gift vouchers. On 19 July, the appellant and Bentley used it fraudulently to purchase clothes for $107. On the same day, Bentley went to Officeworks and fraudulently used the card to purchase four $250 gift vouchers and the appellant received from her two of those vouchers, knowing that they had been unlawfully obtained. On 20 July, the two women visited the K Mart and fraudulently used the card to make purchases for $565.71. Later that day, Bentley returned to the K Mart and fraudulently used the card again to purchase goods, which the appellant received from her, knowing that they had been unlawfully obtained.
On 16 August 2007, the appellant and Bentley were interviewed by police. Both made admissions, and each blamed the other as the main offender.
Counts 50 to 57 concerned events that occurred on 2 September 2007, consequent upon the theft of a handbag containing a woman's credit union card and driver's licence, from a hotel, on 1 September. Later that day, the licence came into the possession of Paul Rayner, who forged the licence by replacing the photograph of the licence holder with one of Ms Kim Jackson and by changing the holder's address and the licence number. He then approached the appellant and Jackson and suggested that they use the forged licence to fraudulently obtain goods from Harvey Norman on a flexi-rent plan. They agreed to do so.
On 2 September 2007, the appellant, Jackson and Rayner, went to Harvey Norman. The appellant and Jackson went inside and selected a variety of goods including a plasma television, surround sound speakers, a Yamaha 5.1 channel receiver, a camera bag, a Sony digital handicam and a power board to a value of $4,751, and also two PlayStations, two consuls, PlayStation games, two mobile telephones, an external computer hard drive and a print cartridge to a value of $1,249. Jackson completed flexi-rent application forms in the name of the card's owner and produced the forged driver's licence, so that they could take possession of the selected items.
On 6 September 2007, police interviewed the appellant. She admitted what she had done. She said that the plasma television, speakers and receiver had been sold to a male for $1,500, with Jackson and Rayner dividing the proceeds between them. She said that she received $29.06 in telephone credit for her assistance with the crimes.
The appellant was aged 28 to 30 years at the time of the crimes. She had a significant record. In 1997 she was ordered to perform 21 hours of community service for burglary and stealing. On 23 February 2004 convictions were recorded and proceedings were adjourned for 18 months conditionally on her being of good behaviour and not committing an offence of dishonesty, for making off without payment, unlawful possession of property, and stealing. She was also convicted and fined $150 for selling a controlled drug and for possession of a controlled drug.
The crimes in respect of which the appeal has been brought were committed by her between 26 June 2006 and 2 September 2007. Before and during that period, she committed other offences of dishonesty which came before a magistrates court on 18 October 2007. The offences were five counts of obtaining goods by a false pretence, five counts of forgery, five counts of uttering, and one count of receiving stolen property, all committed on 29 March 2006, unlawful possession of property on 15 August 2006, and obtaining goods by a false pretence on 26 November 2006. For those offences, convictions were recorded and she was sentenced to three months' imprisonment. She was also sentenced to an additional one month's imprisonment, to be served cumulatively, for two counts of contravening a notice on 31 August and 9 September 2007 respectively, one count of breach of bail on 8 December 2006, and two counts of breach of bail conditions, both on 15 September 2007. The total of four months' imprisonment was ordered to commence on 1 October 2007. When the learned judge sentenced her in this case, he ordered that the five years' imprisonment commence on 10 December 2007.
At the time of sentence, she was 30 years of age. She was raised in the New Norfolk area by her mother, with whom she had a close bond. Her childhood and adolescence were unremarkable. She was educated to year 11 and obtained employment until the birth of her daughter, who was ten years old at the time of sentence. Several years after the birth, she separated from the child's father, but remained on friendly terms with him. Their daughter has a genetic disorder, spinal muscular atrophy. She is wheelchair bound and needs artificial ventilation to help her breathe for some of the day and every night when in bed. Her care is extremely demanding. Apart from a carer at school, trained medical staff and regular help from the appellant's mother, the child's parents shared responsibility for looking after her. Since the imprisonment of the appellant, the burden of the girl's care had fallen largely on the father.
The appellant had been using amphetamines on a daily basis and was dependent on them. As so often happens with addicts, that led to her committing crimes of dishonesty to sustain her addiction.
The total value of money and property fraudulently obtained as a result of the appellant's crimes was between $70,000 and $80,000. To this Court, the appellant's counsel said that the appellant received in total less than $10,000 from her participation in the crimes. The information provided to the learned judge did not suggest that she benefited in a greater amount.
The learned judge correctly described the circumstances surrounding the crimes as disclosing sustained, carefully planned and systematic fraud, and as involving cunning and audacity. A particularly aggravating factor was that notwithstanding that the appellant was interviewed, arrested, charged and bailed on three separate occasions in August 2006, September 2006 and May 2007, she continued to offend. Persistent offending in such circumstances is plainly an aggravating factor. Wisniewski v Tasmania [2007] TASSC 25.
In the sentencing comments, the learned judge said:
Your counsel said that you accept responsibility for your criminal career and do not seek to blame others, apart from the fact that in some instances, there was 'a certain amount of pressure' from your co-offenders."
That statement was made in the light of the following submission by the appellant's counsel:
"Essentially in relation to, for example, the Jankowicz matters, the matters that are essentially at counts 5 through to 24, for example, that was a situation in which persons, accomplices, came to the accused requiring her to assist them in order to make the transactions that they wanted to in relation to those person's – or that person's accounts and the accused says that these were people who were coming to her who were well known to police and who in effect stood over her. And while she says she concedes that she's had some degree of free will there was a certain amount of pressure brought to bear upon her to engage in the processes that they required in order to obtain a financial benefit and it's clear that in relation to at least some of these matters she in fact received little or no financial benefit as a result of the proceeds of the crimes and in fact significant portions of the benefits were going to others, either the male accomplices usually or friends of the male accomplices, and they weren't necessarily people who were known to this accused. She concedes of course that that hasn't always been the case and particularly, for example the matter of the Josephine Walker matter [counts 26 to 49], she concedes that that was a situation where pressure was not brought to bear upon her, but it certainly seems to be the case that this whole world of identity fraud was something that she came across as a direct consequence of her involvement in drugs …".
The learned judge accepted that the appellant was entitled to credit for entering early pleas of guilty and for co-operation with police, adding:
"I was told that if called upon you would give evidence against your accomplices. I was not given any signed statement to that effect and no details as to the tenor of your possible evidence. However, I will take that into account too, in the knowledge that if you refuse to give that evidence when asked to do so, it is likely that the Court of Criminal Appeal will increase your sentence."
Those statements were based on the following submissions by the appellant's counsel:
"… she was substantially frank and made very clear admissions to police in relation to her own conduct as well as that of her accomplices. She provided full names of those people who were known to her and where in the facts my learned friend has referred to persons unknown I understand – certainly I've watched the interviews, if one was to go back to those interviews generally speaking those persons unknown are referred to by the accused in her interviews by their names and she has said that she's prepared to give evidence if called upon in respect of accomplices in the event that those persons are charged and/or seek to defend the matters against them."
The learned judge explained how he arrived at the sentence of five years' imprisonment in the concluding passage in his comments:
"The nature and length of your offending, and the care and planning that attended it, calls for a sentence in the order of seven years' imprisonment. But, having regard to your co-operation, your pleas, and the promise to give evidence against your accomplices, such a sentence should be reduced to 6 years. With respect to your daughter, the law is that hardship on an offender's family does not call for a reduction in sentence, except in the most exceptional cases. Because of the care that will be given your daughter by her father and your mother, yours is not such an exceptional case. Having said that, however, I do not think that your daughter's situation should be entirely ignored. Accordingly, this sentencing exercise will include a moderate dose of mercy."
With respect to the learned judge, a head sentence of seven years' imprisonment before reduction in severity for mitigating factors, was manifestly excessive. A sentence of imprisonment for so many years for crimes of dishonesty is rare, and usually will be expected only in cases involving extremely large thefts and the like. For example, on 25 August 1989, Room was sentenced to eight years' imprisonment for 193 counts of dishonesty involving the defrauding of clients of the prisoner's practice of $1.7m; and on 12 February 1993, Durovic was sentenced to 8½ years' imprisonment for 236 counts arising out of dishonesty as the managing director of a company, which resulted in about $1m being taken from it. Another prisoner, Badger, who pleaded guilty, was sentenced on 1 September 1996 to six years' imprisonment for 23 counts of stealing a total of $705,000 from clients in his capacity as a financial adviser. Reference to those sentences, and others that provide useful comparisons, are to be found in Professor Warner's Sentencing in Tasmania, 2 ed, at 343 – 348. The level of the appellant's criminality was high and her record for offending on previous occasions was significant, but nevertheless, it did not justify punishment at the level contemplated by the learned judge. The sentence was manifestly excessive.
For these reasons, I would quash the sentence of five years' imprisonment and the non-parole order. In their place, I would sentence the appellant to three years' imprisonment from 31 December 2007, the earliest release date for the appellant following the sentence of imprisonment imposed in the magistrates court on 18 October 2007, and I would order that she not be eligible for parole until she has served 18 months of the imprisonment.
File No 1/2008
ANDREA LOUISE BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
2 July 2008
The appellant was sentenced to five years' imprisonment upon her plea to 57 counts of dishonest conduct involving identity fraud. She was a member of an organised group who had acquired or stolen items of identity, manipulated computer records or processes, and represented identity and acquired, or attempted to acquire, financial advantage through the knowledge and documentation possessed. The indictment, brought only in the name of the appellant, alleges varying forms of conduct between June 2006 and September 2007. The misconduct was planned, highly organised and prolonged. The crimes specified were:
Computer-related fraud 30 Obtaining goods by false pretences 4 Forgery 6 Uttering 5 Attempting to acquire a financial advantage 1 Attempted computer-related fraud 1 Personation 2 Receiving 4 Money laundering 2 Fraud on creditor
2
A number of other persons were involved in the criminal scheme, none of whom had been dealt with by the criminal justice system at the time of the appellant's sentencing hearing. Members of the group played differing roles in the execution of the scheme. The general scheme involved the burglary and/or theft alone of items of identification, including bank cards, driver's licences, tax file numbers, manipulation and use of those items, and the obtaining of money through electronic banking facilities or ATM machines, or credit through the misuse of data. Five separate sets of events gave rise to the counts comprised in the indictment. The following is a précis:
Counts 1 - 4
A house was burgled and a lap top computer and personal identification documents stolen on 26 June 2006. The appellant used her skills to use and manipulate the data retrieved from the memory and arrange access to the electronic banking facility operated by the owner. Two sums each of $9,000 were withdrawn on 26 June and 5 July.
Counts 5 - 24
The home of a sleeping occupant was burgled on 11 August 2006 and banking and credit cards, driver's licence and other items of personal identification stolen. Between that day and 22 August, separate accounts maintained by two persons at different banks were accessed, and through a series of complex but interlinked manipulations, a total of $39,000 withdrawn.
Count 25
The appellant was involved in the receipt of personal property stolen by another and its sale through a second-hand dealer, on 5 and 8 May 2007. Two items returned the amount of $90.00, and other items were recovered.
Counts 26 - 49
A wallet containing a bank card and personal items was stolen on 9 July 2007 and received by the appellant on 17 July. In the period 9 - 19 July, the items, and the knowledge obtained, were used to defraud a credit union of $6,598, and various retail outlets of lesser amounts. The scheme was complex, involving the use of telephonic facilities, automatic teller machines and the collection of a fresh credit card from a postal address. The two money laundering charges were of little import, involving the receipt of gift vouchers, serviettes, purses and colouring books obtained in the course of the unlawful activity.
Counts 50 - 57
A handbag containing a financial card and driver's licence was stolen from outside a hotel on 1 September 2007. The contents were used on the same day to obtain credit and items from a financial credit provider for $6,000, and from two retail outlets.
The appellant was not the principal to every count, nor was she charged as such in name. She was an integral member of the "team" using her knowledge of computers, data processing and electronic banking systems to achieve the group purpose. She was directly involved in the obtaining and receipt of some of the money through sale, withdrawal from an ATM, collection of the credit union material from a post box and representing herself to be another.
The learned sentencing judge acknowledged her lesser role in stating:
"As I have said, most of these crimes were committed with accomplices. They are shadowy figures on your sentencing hearing. I know little, if anything, about them. Your counsel said that you accept responsibility for your criminal career and do not seek to blame others, apart from the fact that in some instances, there was 'a certain amount of pressure' from your co-offenders."
He noted that she "only received a relatively small share of the proceeds of the criminal conduct". His Honour's task was made more difficult given the confusing manner in which the prosecution facts were stated, and the fact that none of the other offenders had been dealt with, which did not permit comparison and assessment of proportionate sanction.
Matters of aggravation
The learned sentencing judge was entitled to take into account the planned and prolonged course of conduct, joint and co-ordinated involvement, and the number of victims. Significantly, he was required to take into account persistence, despite police intervention and/or her charging and bail on three occasions during the operations (Wisniewski v Tasmania [2007] TASSC 25). The actual loss caused of $80,000 was, in the context of commercial fraud or organised crime, relatively minor (R v Lo (2007) 174 A Crim R 451; Durovic v R (1994) 4 Tas R 113; Room, 25 August 1989). There was a potential for violence, especially in relation to the burglary committed on 11 August, in which the appellant was not a party, and the risk of lesser potential than that in an armed robbery (Devine v R [2003] TASSC 52).
Mitigating factors
The appellant pleaded guilty and gave an indication of plea at an early stage. She had co-operated with police and provided assistance to them in their collecting of information concerning the conduct of her accomplices. Significantly she had offered to give evidence against them if these matters came to trial (R v Stanley (1998) 7 Tas R 357); she was not the principal or co-ordinator of the group's activity. His Honour took those matters into account when he said:
"You are entitled to credit for entering an early plea of guilty and for your co-operation with police. I was told that if called upon you would give evidence against your accomplices. I was not given any signed statement to that effect and no details as to the tenor of your possible evidence. However, I will take that into account too, in the knowledge that if you refuse to give that evidence when asked to do so, it is likely that the Court of Criminal Appeal will increase your sentence."
Involvement
The learned sentencing judge was entitled to take into account the significant involvement of the offender in the scheme. But she was not the principal. Her computer skills might have been central to at least three of the schemes, but in other respects she was but a minor "player". In relation to counts 1 - 25, his Honour calculated that commission involved four males and another woman, and in relation to counts 54 - 57, at least two other male persons. Prosecuting counsel's confusing summation of the remaining counts made it unclear as to the number of other persons involved, although another woman at least was involved in counts 42 - 49. The Court was told of the appellant's dependence on amphetamines, following which her counsel stated:
"Now the use and the purchase of the drug amphetamine meant that over those years Ms Brown became increasingly exposed to people also involved in drugs and many of those people have had a long term involvement in criminal offending and certainly some of those people have had a tendency toward being quite persistent and sometimes threatening in order to obtain assistance. So Ms Brown of course was never involved in the burglaries that gave rise to the – I think the possession of the information that would then assist further crimes to occur, for example particularly the identity fraud and the ability to take money, but in relation to some of the matters before the Court people would come to her that she knew through the world in which she was obtaining drugs and would require her to assist them in order to I suppose maximise the benefit that they felt that they could achieve as a result of obtaining that personal information.
…that was a situation in which persons, accomplices, came to the accused requiring her to assist them in order to make the transactions that they wanted to in relation to those persons' – or that person’s accounts and the accused says that these were people who were coming to her who were well known to police and who in effect stood over her. And while she says she concedes that she’s had some degree of free will there was a certain amount of pressure brought to bear upon her to engage in the processes that they required in order to obtain a financial benefit and it's clear that in relation to at least some of these matters she in fact received little or no financial benefit as a result of the proceeds of the crimes and in fact significant portions of the benefits were going to others, either the male accomplices usually or friends of the male accomplices, and they weren't necessarily people who were known to this accused. She concedes of course that that hasn't always been the case and particularly, for example the matter of the J W matter, she concedes that that was a situation where pressure was not brought to bear upon her, but it certainly seems to be the case that this whole world of identity fraud was something that she came across as a direct consequence of her involvement in drugs and your Honour will note that leaving aside that conviction for burglary and stealing in 1997 all other convictions on her record relate to the period when she says that she was using significant amounts of amphetamine and on a very regular basis."
She had received approximately $2,000 as a result of her involvement in the commission of the crimes stated in the indictment counts 1 – 4, and not more than $8,000 from the remaining crimes, claims not disputed by the prosecution and accepted by the learned sentencing judge.
Subjective characteristics
The appellant, aged 30, had previous convictions for dishonesty committed on 25 September 2003. On 18 October 2007, she was convicted in the Court of Petty Sessions, of 16 offences of forgery, uttering, and obtaining goods by false pretences. Again all being committed on the same day, 29 March 2006, one of unlawful possession occurring on 15 August 2006, and one for false pretence committed on 26 November 2006. The March offences appear to have been a series of transactions arising from a single initial event. Together they comprised four occasions of dishonest conduct. She was serving a sentence of four months for the October convictions at the time of the imposition of the sentence which is the subject of this appeal and which was imposed on 20 December 2007, but backdated to 10 December, the date of the sentencing hearing. The sentence here imposed was substantially cumulative.
The appellant has a young child aged 10 who suffers from muscular atrophy and who lived predominantly at home, cared for by the appellant and her partner. A report from a staff specialist of the Paediatric Clinic of the Royal Hobart Hospital, Dr Parsons, tendered at the sentencing hearing, stated:
"Because of her difficulty breathing and the requirement for artificial ventilation (life support) she is extremely demanding to care for and her parents Mark Kelly and Andrea Brown have undertaken extensive periods of training and now have a vast amount of experience looking after Lily.
However, apart from her carer at school and our Intensive Care and Paediatric nurses at the hospital, they are the only people capable of caring for her.
Thus the burden placed on Mark in Andrea's absence is extreme and unsustainable. Thus it is very important for Lily to have access to her mother, such that she can be cared for by Andrea part of the time and Mark part of the time to relieve Mark of this immense burden and to provide Lily with the best and safest care possible."
Whilst those considerations ought not intrude into the imposition of an immediate sentence, they have some relevance to its length (Sullivan v R 9/1975; Riley v Tilyard B9/1990). A psychological assessment of the appellant was also tendered which recounted a history of substance abuse confirmed by her conviction in 2004 for two drug related offences. The report was positive as to her future prospects.
Basis of appeal
The sole ground of appeal is that the sentence was manifestly excessive in all the circumstances. It is said to be outside of the range of appropriate sentences required by the principle of consistency (Lowe v R (1984) 154 CLR 606; Griffiths v R (1977) 137 CLR 293) and did not significantly reflect the mitigatory matters specific to this offender. The whole of the sentence including the non parole period requires consideration (Dinsdale v R (2000) 202 CLR 321). Here, the minimum period was fixed which might have taken into account the circumstances of the appellant's child. Two approaches can be taken. The first is to consider the commencing sentence, and if that be appropriate, to consider any discounting. The learned sentencing judge regarded the appropriate commencing point to be a sentence of seven years to be discounted through mitigating factors. He stated:
"The nature and length of your offending, and the care and planning that attended it, calls for a sentence in the order of seven years' imprisonment. But, having regard to your co-operation, your pleas, and the promise to give evidence against your accomplices, such a sentence should be reduced to 6 years. With respect to your daughter, the law is that hardship on an offender's family does not call for a reduction in sentence, except in the most exceptional cases. Because of the care that will be given your daughter by her father and your mother, yours is not such an exceptional case. Having said that, however, I do not think that your daughter's situation should be entirely ignored. Accordingly, this sentencing exercise will include a moderate dose of mercy."
With respect, either approach manifests error. The commencing point of seven years might be appropriate for the principal of a professionally organised group of criminals. Accepting a range of sentences as guidance (R v Franklin 26/1991; Burton v R [2002] TASSC 64), the sentence of seven years is disproportionate to the nature of the crimes committed, the degree of involvement of this offender, and the amount involved (Langridge v R [2004] TASSC 97; Levett, 31 October 2003; Mason, 6 November 2006; Wesley, 20 July 1990; Stevens, 27 April 2006. Accepting, without deciding that seven years is an appropriate sentence for a nexus of crimes involving aggravated burglary, stealing and computer-related fraud over a long period (cf armed robbery Devine v R (supra)) to be imposed on the prime initiator and operator of the scheme, it ought make differential allowance for a person with a lesser role. The alternate approach likewise manifests error. Co-operation with police and plea alone might warrant an allowance of 12 months discounting (Pavlic v R (1995) 5 Tas R 186; Pavlic (No 2) 71/1995). But here the additional factor of the provision of evidence warrants greater allowance (Stanley (supra); R v Lo (supra) where an additional discount of 10 per cent was said to be warranted). The subjective characteristics of the offender, her financial return from involvement and the relationship between the conduct and drug addiction, likewise warranted a greater discount. Some of the convictions were not previous and the cumulative effect of this sentence went beyond the level appropriate for her level of criminality (Hill v R [1999] TASSC 29). Through either acceptance of a differing commencing point because of the level of involvement of the offender and the proportionate discounts allowed by his Honour, or making greater allowance for degree of involvement, plea, future co-operation and subjective characteristics, I would arrive at an appropriate sentence of three years' imprisonment. I would uphold the appeal. For the reasons stated above, I would quash portion of the order made on 22 December 2007 and substitute a sentence of three years' imprisonment with a non-parole period fixed at one half. The compensation orders and levy ought remain.
File No 1/2008
ANDREA LOUISE BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
2 July 2008
I have read the reasons for judgment of the learned Chief Justice. I agree with those reasons and the orders which he proposes.
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