Chapple v The Queen

[2015] NSWDC 355

District Court

New South Wales

Medium Neutral Citation:

Chapple v R [2015] NSWDC 355

Decision date:

22 September 2015

Jurisdiction:

Criminal

Before:

Cogswell SC DCJ

Decision:

Appeals allowed. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 these appeals against sentence are determined by setting aside the sentences.

 

In respect of the four counts against s 178BA(1) of the Crimes Act, under s 8 of the Crimes (Sentencing Procedure) Act 1999 instead of a sentence of imprisonment, the appellant is directed to perform 35 hours of community service per offence.

 

In respect of the counts against s 192E of the Crimes Act, the appellant is resentenced as follows. In respect of the offence regarding the victims Doolin, a sentence of 16 months imprisonment is imposed. In respect of the offence regarding Hi-Tech Park Homes, a sentence of twelve months imprisonment is imposed. In respect of the offences involving William Goodrich and Richard Goodrich separately, in each case sentences of four months imprisonment is imposed. For each of those sentences of imprisonment, under s 12 of the Crimes (Sentencing Procedure) Act 1999 the execution of the whole of each sentence is suspended for the whole period and Mr Chapple is to be released from custody on condition that he enters into a good behaviour bond for the term of each sentence.

 The compensation order is set aside.

Catchwords:

CRIMINAL LAW – appeals against sentence – particular offence – dishonestly obtaining a financial advantage by deception – insurance broker employed by company received salary and personally invoiced clients for work done over several years – failed to disclose clients were not obliged to pay him – no complaints regarding service provided – well regarded by members of the community – serious offences – sentence of imprisonment warranted – to be served by way of suspended sentence – community service order

Legislation Cited:

Crimes Act (1900) (NSW), ss 178BA(1), 192E
Crimes (Appeal and Review) Act 2001 (NSW), s 20
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 12

Category:

Principal judgment

Parties:

Mark Chapple (Appellant)
Regina (Respondent)

Representation:

Counsel:
F D L Holles (Appellant)

  Solicitors:
G Wasilewicz, Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2014/321429

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

13 May 2015

Before:

Holmes LCM

File Number(s):

2014/321429

Judgment

1. This is a case about deceptively obtaining money. In these kinds of cases it is sometimes a challenge to ask oneself: what is the criminal aspect to the conduct? Behaviour in financial matters can amount to the commission of crimes but the way in which that conduct becomes a crime or the reason it should be classified as a crime is not always clear. Some cases are more serious than others. The case I am dealing with this afternoon seems to be a less serious example.

2. A man was a successful insurance broker. He built up a good client base. He was self-employed. He arranged insurance for his clients and sent them accounts which they paid. After some time he ceased to be self-employed and took a job with an insurance company or an insurance broker. He received a salary for that. At the same time he kept most, if not all, of his clients. In other words, instead of arranging the insurance for them personally, it was arranged through his employer but by use of his skill and services. As I said, he was paid a salary by his employer.

3. The crime he committed was this. He continued to render accounts to his clients. His clients continued to pay the accounts. The accounts that he sent to his clients was for the work that he performed on their behalf through his employer. His clients, it seems, did not question the bills. They paid them.

4. There is no suggestion of any complaints about the service which he provided. On the contrary the references amongst the papers make it clear that he worked extremely hard in his job and was highly valued in that area. But in what his counsel, Mr F D L Holles, described as a crime of omission rather than commission, he failed to tell his clients that they were no longer obliged to pay him a personal fee. He was paid a salary by his employer to do the same work that they used to retain him independently to do. He continued sending his former clients bills for six or seven or eight years. As I said, the bills were paid and he “earned” almost $60,000 from those clients in fees which they paid.

5. The man’s name is Mark Chapple. He is now 53. At some stage he was reported to the police. The police interviewed him, he was cooperative and even supplied them an additional explanation but responsibly and in accordance with their duty, they charged him with offences. That is because he had committed the crimes.

6. There were four sets of clients involved. Three sets were either individuals or couples, and the fourth set was a corporation. For each of the four, he was charged with two crimes. That is because the law changed part way through the period. For each set he was charged with obtaining money by deception against s 178BA(1) of the Crimes Act (1900) (NSW). That has a maximum of five years imprisonment. For each set he was also charged with dishonestly obtaining a financial advantage by deception against s 192E(1)(b) of the same Act. That section has a maximum of ten years imprisonment.

7. His case came to court at the Tamworth Local Court. Mark Chapple pleaded guilty, to his credit. That entitled him to a discount in any sentence. His Honour Magistrate Holmes obviously regarded Mark Chapple’s criminal behaviour as very serious and for each of the eight offences his Honour imposed prison sentences of 18 months with a non parole period of six months. They were all to be served concurrently so the overall effective sentence was an 18 month prison sentence with a non parole period of six months.

8. Mr Chapple has appealed to the District Court against the sentence. When that happens the District Court Judge reads the papers that were before the Magistrate and reads or hears any additional evidence which is called in the case before the Judge.

9. In this case Ms G Wasilewicz who appears for the Director of Public Prosecutions, who is the respondent to the appeal, has tendered a pre-sentence report and Mr Holles has tendered up to date psychological and medical material and a reference from a prospective employer. Mr Holles also called his client Mark Chapple to give evidence.

10. Mr Chapple acknowledged what he described as a “gross error on my part” that had brought to an end prematurely a long and successful career as an insurance broker. He acknowledged that when he finished with his employer he was on a salary of nearly $150,000 per annum. He acknowledged that he had brought shame on his family.

11. When cross examined by Ms Wasilewicz he did not agree that he had rendered the bills because he felt that he was underpaid, but simply because he was maintaining a long-standing relationship with his clients who trusted him.

12. Mr Holles also called Colin Baker who is a director of a business called The Package House Imports Pty Limited. Mr Baker has known Mr Chapple for some 15 years and knows about the charges he is facing. Mr Baker’s business has offered Mr Chapple the job of sales manager of the company. In exhibit 3 Mr Baker says that Mr Chapple’s “experience suits the role and we believe he would make a valuable contribution”. He made reference to his experience, particularly in the New England and the North West of New South Wales. They are prepared to put a lot of trust in his skills and ability.

13. In addition to this Mr Chapple has good references from respectable members of the community who obviously know him well and who make it clear in their references that they know all about the conduct that led to the charges. They refer to the respect that he commands in the business field and his ethic of hard work. These people vouch for Mr Chapple’s character and acknowledge that the dishonesty is out of character.

14. Mr Chapple has been seeing a psychologist who has diagnosed him as having a major depressive disorder and a generalised anxiety disorder. He is also being treated by his general practitioner and is on a medication regime.

15. A pre-sentence report thought that Mr Chapple “lacks insight into his offending behaviour and appeared to minimise his role in the offences and the consequential impact on the victims”. He explained to the author of the report that he was “confused about his role” and his “perceived entitlement to charge customers for his services”.

16. I come back to the observations I made in commencing these remarks on sentence. It is important in cases involving financial crimes to have a sense of what the criminal conduct is. These are not crimes that involve deceiving a person into parting with money whilst nothing is provided in return. Perhaps Mr Chapple’s own reference to being confused about his role illustrates what had happened. He continued behaving as he always had done in his business relationships, even though his source of remuneration had changed. He failed to tell his clients that they need not pay for his services any more.

17. Mr Holles argued that the sentences could be suspended or combined with suspension orders and community service orders. I should add that the victims of these crimes have all been paid out by Mr Chapple’s employer’s insurer so, as Ms Wasilewicz fairly acknowledged, there is an aspect about this which suggests a victimless crime. Nevertheless these four sets of persons and corporations were deceived by his failure to disclose that they were not obliged to pay him any money and, to the extent that they trusted him, he failed to honour that trust. That is why essentially it is criminal behaviour. It is significant criminal behaviour and to my mind the more serious of the crimes, namely the offences against s 192E, should attract a sentence of imprisonment. However I would be inclined to accept Mr Holles’ submission, to which Ms Wasilewicz did not take exception, that the sentences could be suspended. It is clear that Mr Chapple has learnt his lesson. He has the opportunity to continue to offer his skill and experience by another employer who fully understands the crimes he has committed but is prepared to trust him to use his skill in another endeavour. I think for those reasons he should have a conviction but be able to spend his time back in the community. There needs to be some punishment in the sense of personal inconvenience and that is what is attractive about Mr Holles’ suggestion of a community service order. Again Ms Wasilewicz did not take exception to that proposal.

18. It seems to me that the overall effective sentence of 18 months is, with respect, about right. Instead of one sentence I would propose to impose four cumulative sentences of four months. It seems that the tariff for community service orders would be about 150 hours. I have in mind four orders of 35 hours each, amounting to 140 hours. I am going to allow this appeal for the reasons that I have given.

19. The formal orders which I make are these. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine these appeals against sentence by setting aside the sentences. In respect of the four counts against s 178BA(1) of the Crimes Act, under s 8 of the Crimes (Sentencing Procedure) Act 1999 instead of imposing a sentence of imprisonment I make a community service order in respect of each of those offences directing Mr Chapple to perform community service work for 35 hours. Those orders are cumulative so that the total number of hours would be 140.

20. In respect of the four offences against s 192E(1)(b) of the Crimes Act, I fix a sentence of four months imprisonment for each of those offences. In respect of each of the offences, under s 12 of the Crimes (Sentencing Procedure) Act 1999 I make an order suspending the execution of the whole of the sentence for the whole of the period and I direct that Mr Chapple be released from custody on condition that he enters into a good behaviour bond for four months in respect of each sentence. The conditions of the good behaviour bond are

1. That he be of good behaviour,

2. That he notify the registrar of this court of any change in his residential address,

3. That he attend court if he receives a notice to do so.

HIS HONOUR: Now any other orders before I explain it to Mr Chapple?

WASILEWICZ: I may have misheard, your Honour intends for each of those four months prison term.

HIS HONOUR: Yes, I’m thinking that yes.

WASILEWICZ: So the total term is sixteen months‑‑

HIS HONOUR: I know, I think I’ve got that wrong. Not sure how to get around it.

WASILEWICZ: Whether or not your Honour does an aggregate sentence of sixteen months for all of them and suspends it totally. Can’t suspend an aggregate sentence.

HOLLES: Can’t suspend it.

HIS HONOUR: No you can’t do an aggregate s 12.

HOLLES: Your Honour it occurs that perhaps the one involving the Doolin’s being the largest amount, and I think, is your Honour restricted to one accumulation or two?

HIS HONOUR: No, I’m not sure that I can accumulate for a suspended sentence. I think that your suggestion, the one involving the Doolin's, should - and then there’s one involving Hi-Tech‑‑

HOLLES: Yes.

HIS HONOUR: ‑‑and perhaps I should do it that way and.

HOLLES: If your Honour were to make one for sixteen months, the rest for four months and make them all concurrent.

HIS HONOUR: Sixteen months. I agree.

WASILEWICZ: Yes.

HIS HONOUR: I think I just suspend them but making it clear that they would be concurrent yes. Yes, all right. I think that’s the answer. Do you agree Ms Wasilewicz?

WASILEWICZ: Yes, your Honour.

21. I revise the orders in respect of the penalties for the offences against s 192E. In respect of the offence regarding the victims Doolin, I impose a sentence of 16 months imprisonment. In respect of the offence regarding Hi-Tech Park Homes I impose a sentence of twelve months imprisonment. In respect of the offences involving William Goodrich and Richard Goodrich separately, in each case I impose sentences of four months imprisonment. For each of those sentences of imprisonment, under s 12 of the Crime (Sentencing Procedure) Act 1999 I make orders suspending the execution of the whole of each sentence for the whole period and I direct that Mr Chapple be released from custody on condition that he enters into a good behaviour bond for the term of each sentence.

HIS HONOUR: Can I do one bond? No, probably four bonds.

HOLLES: Separate bonds your Honour.

22. Conditions of the bonds I have already specified. I notice that he is assessed as suitable for a CSO. I should direct that he report to the Community Corrections Officer at Tamworth on or before next Wednesday 30 September 2015.

HIS HONOUR: Now I will explain that to your client in a minute but I think that’s all.

HOLLES: I think that ticks the boxes your Honour if I may use that expression.

HIS HONOUR: Yes.

HOLLES: There is one matter your Honour, there was an order by the magistrate for compensation. As I understand it, the situation is this, that the people named as the victims on the various offences have been paid out. It may be that the person who paid out that money has a civil action against my client but I don’t see how this court can make a compensation order indeed the magistrate could have made a compensation order under those circumstances.

HIS HONOUR: Sounds right. Ms Wasilewicz, it may be that the insurer has a civil action, but I’m not sure I can order them.

WASILEWICZ: Well your Honour can order the compensation orders remain. Although the victims would be doubly enriched in doing so.

HIS HONOUR: That’s right. No, I wouldn’t do that.

WASILEWICZ: Matter for your Honour.

HIS HONOUR: No. I think I’ve set aside the sentences.

HOLLES: Yes, your Honour has. I was simply raising it for more certainty if it came to a head at a later time.

HIS HONOUR: Yes.

23. For clarity I indicate as part of my order that the compensation order has been set aside.

WASILEWICZ: I think that settles it your Honour.

HIS HONOUR: Yes. Mr Chapple, come forward. Mr Chapple, you’ve won your appeal. I have set aside the gaol sentences but…well I have set aside the fact that you’ve got to go to gaol to serve them. You have still got prison sentences, you’ve got four prison sentences. 16 months, 12 months and two lots of four months but I have suspended each one. For the other four offences you’ve got community service orders for each, 35 hours for each of them, so that’s 140 hours. That is going to be inconvenient for you, particularly when you are going into your new job. But that’s the idea and every time you find yourself being inconvenienced and finding it a nuisance and that it is holding you back you think “Well, would I rather be in gaol than doing this?” That is the attitude that you do that community service with. Because it has been given to you instead of sending you to gaol and it is meant to be inconvenient because it is meant to be a punishment.

The prison sentences have been suspended and the conditions are that you have to enter a good behaviour bond and Mr Holles or his solicitor will take you in to sign you up this afternoon, just into the office here. You’ve got to stay out of trouble. Good behaviour means that. No drink driving, I mean you don’t have anything on your record. But nothing at all . If you change your address, you’ve got to let them know and if you get a notice in the mail saying to come to court you’ve got to turn up.

The most important thing to understand about a suspended sentence - which your lawyers will explain to you but I have to make clear - is if you breach the good behaviour bond even by a drink driving offence for example and you come back before me, my hands are tied. There’s very little I can do. Parliament has deliberately made it hard for me not to send you to gaol. It’s not like ordinary good behaviour bonds because it’s attached to a prison sentence. And when you come back, if you come back before me, you pretty well have to go to gaol. So you’ve got to bear that in mind, you’ve got to remain completely clean for sixteen months. I am not suggesting that will be hard. A person of your record, your age, won’t be a problem. And it is very good that you have got this job offer from Mr Baker. You can turn your life around, make a new start and, as I said in my judgment, you will be able to use the skills which you have developed. So good luck.

**********

Decision last updated: 10 February 2016