Clinton v R

[2018] NSWCCA 66

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Clinton v R [2018] NSWCCA 66

Hearing dates:

23 March 2018

Date of orders:

13 April 2018

Decision date:

13 April 2018

Before:

Hoeben CJ at CL at [1]
Johnson J at [2]
Schmidt J at [3]

Decision:

(1)   The application for extension of time to appeal is granted.

 

(2)   Leave to appeal granted.

 (3)   Appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – extension of time to appeal sentence – fraud – dishonestly obtain financial advantage by deception – whether the offences were aggravated on the basis that each offence was committed for financial gain: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) –
whether the offences were aggravated on the basis that each offence constituted a series of acts: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) – grounds of appeal established – whether lesser sentence was warranted in law – not warranted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 178BA(1) (repealed), 192E(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Dimian v R [2016] NSWCCA 223
Hamze v R [2006] NSWCCA 36
Jah v R [2006] NSWCCA 250
Johnston v R [2017] NSWCCA 53
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28
Potts v R [2017] NSWCCA 10
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Finnie [1999] NSWCCA 329
R v Finnie [2002] NSWCCA 533
R v Finnie (No 2) [2004] NSWCCA 150
Finnie v R [2007] NSWCCA 38
R v Jarrold [2010] NSWCCA 69
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
Regina v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145

Category:

Principal judgment

Parties:

Thomas James Clinton (Applicant)
Regina (Crown)

Representation:

Counsel:
P Lange (Applicant)
T Smith (Crown)

  Solicitors:
Hardinlaw (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2013/8157

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

4 March 2016

Before:

Lakatos SC DCJ

File Number(s):

2013/8157

Judgment

1. HOEBEN CJ AT CL: I agree with Schmidt J and the orders she proposes.

2. JOHNSON J: I agree with the reasons of Schmidt J and her Honour’s proposed orders.

3. SCHMIDT J: In December 2014 Mr Clinton pleaded guilty to nine offences committed during a joint criminal enterprise which he pursued with his co-offender, Graeme Fowler, between 2008 and 2014, by repetitive and regular offending involving the sophisticated and planned acquisition of credit cards, personal loans and mortgage funds.

4. Mr Clinton’s case on appeal was that his role was to take advantage of the trust imposed in him by his victims and Mr Fowler’s, to use his expertise to generate applications and cause computer systems to grant the credit facilities which were used to perpetrate their offences. It was agreed that the sums which they thereby obtained collectively totalled over $1million, with in excess of $299,000 having come into Mr Clinton’s hands.

5. In March 2016 Lakatos SC DCJ sentenced Mr Clinton to an aggregate sentence of imprisonment of 5 years and 8 months, with a non-parole period of 3 years and 9 months, for the seven offences he committed under s 192E(1)(b) of the Crimes Act 1900 (NSW), one under s 254 and another under s 178BA(1) (repealed), offences all found to have fallen below the mid-range of such offending. Taken into account on that sentence under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were 19 other offences which Mr Clinton also admitted having committed, three under s 254, fifteen under s 192E and one of dealing with identity information under s 192.

6. The sentence was also the result of the application of a combined discount of 30% for Mr Clinton’s late plea and the assistance he had provided, as well as a finding of special circumstances. Lakatos SC DCJ found, however, that Mr Clinton had no contrition or remorse for his offending, as the procurer of the offenders’ victims, despite the plea and assistance he had provided.

7. Mr Clinton was 74 when sentenced and 72 when he committed his last offence, while he was at liberty on bail for earlier offending, suffering ill health. The finding of special circumstances rested on evidence which Lakatos SC DCJ accepted established Mr Clinton’s need for extended supervision after release for reasons of rehabilitation; for the further medical assistance he required for his various physical ailments; and because his custodial circumstances might become more difficult, once his assistance was disclosed. Mr Clinton’s long record of offences of dishonesty was also found to be relevant to this finding.

8. Mr Clinton is eligible to be considered for release on parole on 3 May 2018, but it was not in issue on appeal that even while in custody, he has continued to act dishonestly, both before and after he was sentenced, by obtaining some 5,186 free phone calls to which he was not entitled.

Grounds of Appeal

9. Mr Clinton now seeks an extension of time to appeal his sentence, as well as leave to appeal under s 5(1)(c) of the Criminal Appeal Act1912 (NSW) on two grounds, namely:

1. That Lakatos SC DCJ erred in concluding that his offences were aggravated, within the meaning of s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), on the basis that each offence constituted a series of criminal acts; and

2. That his Honour also erred in concluding that his offences were aggravated, within the meaning of s 21A(2)(o) of the Crimes (Sentencing Procedure) Act, on the basis that each offence was committed for financial gain.

Extension of time and leave to appeal must be granted

10. There was no issue between the parties that despite the late filing of Mr Clinton’s application for leave to appeal, both an extension of time and the leave sought must be granted, the Crown having conceded that at least the second ground of appeal must be upheld.

11. In those circumstances, I consider that both the extension of time and leave to appeal must be granted, notwithstanding the extraordinary delay in the filing of the appeal, which has not been adequately explained. Mr Clinton was sentenced on 4 March 2016 and soon becomes eligible for parole, but the application was not made until December 2017. As discussed in Potts v R [2017] NSWCCA 10 at [6], [32] and [69], there should not be such delay in the filing of appeals such as this.

Ground 2: Whether the offences were aggravated on the basis that each offence was committed for financial gain

12. I am also satisfied that ground 2 must succeed.

13. On sentence it was Mr Clinton’s case that care had to be taken to ensure that his sentence did not involve double counting in respect of the aggravating factor specified in s 21A(2)(o) of the Crimes (Sentencing) Procedure Act, that his offences had been committed for financial gain. That was because financial gain was an essential element of the offences to which his pleas had been entered.

14. That was not put in issue by the Crown.

15. In his sentencing decision Lakatos SC DCJ noted, as the parties had agreed, that between 2008 and 2014 Mr Clinton, while acting as a business adviser, had obtained personal and financial details from a number of people who were seeking finance. He passed that information to Mr Fowler, who used it to submit fraudulent applications to various financial institutions, using their names and information. Credit card accounts and loans were thereby obtained and then used by both Mr Clinton and Mr Fowler, including in Mr Clinton’s case, to create a number of businesses and obtain a number of business banking accounts.

16. Lakatos SC DCJ noted that the offences in the first indictment involved:

“Count 1: Between 1 February 2008 and 1 April 2008 at Bathurst the offender dishonestly obtained a financial advantage, being a Citibank credit card in the name of John Morton by deception, namely, representing that John Morton made the application for that card. That offence carries a maximum penalty of five years imprisonment.

… according to the agreed facts emanating or resulting from that charge is an amount of $5,103 and amongst a number of the payments made from it, there was an amount of $670.72 made in the name of Sid Finnie and I note Sidney Thomas Finnie was the name of this offender at an earlier point in his life.”

“The second count is that between 5 March and 28 April 2010 at Umina and elsewhere he dishonestly obtained a financial advantage, namely, a Members Equity Bank personal loan in the name of Garth Oldfield by deception, namely by representing that Mr Oldfield had made an application to obtain a personal loan. That is an offence contrary to s 192E(1)(b) and carries a maximum penalty of ten years imprisonment. I note that the agreed facts indicate that the outstanding amount on the loan, that is the amount by which the institution and/or the person was out of pocket, is $12,306.”

“The third count on indictment one is that between 16 May and 1 June 2010 at Umina the offender dishonestly obtained a financial advantage, a Members Equity Bank personal loan in the name of Peter Macintosh by deception, namely by representing that Peter Macintosh had in fact made an application for such a personal loan.

The outstanding amount involved in that offence according to the facts is $19,500 which was the credit limit and there was an unstipulated amount drawn down from that credit limit.”

“The fourth count is that between 21 November and 7 December 2010 at Umina and elsewhere the offender dishonestly obtained a financial advantage, a Member Equity Bank personal loan in the name of David Lightowler by deception, namely by representing that Mr Lightowler in fact made an application for such a loan. I should say that the loan involved there was for an amount of $30,000 and the facts indicate that $29,000 was immediately transferred to a savings account controlled by this offender and his co-offender, Mr Graham Fowler.”

“Count 5 is that between 17 and 22 April 2011 at Umina and elsewhere the offender dishonestly obtained a financial advantage, again a Members Equity Bank personal loan in the sum of $24,500 by representing to that bank that Rita Hillenberg had indeed made an application for such a loan. That loan was for $24,500 and it appears that a cheque in the sum of $12,000 was deposited to the joint account of this offender and one, William Riley.”

“The sixth count is that between 1 June and 12 August at Camden the offender used a false document, namely, a Resi Mortgage Corporation Pty Limited home loan application in the name of Robert Gow knowing it to be false and intending to induce a person to accept it as genuine in order to obtain a financial advantage, namely, a loan in the amount of - it is variously put in the charge and in the facts as $640,000 or $660,000. That is an offence contrary to s 254 of the Crimes Act and carries a maximum penalty of ten years imprisonment. The facts indicate in relation to that matter that after the settling of existing mortgages apparently attaching to Mr Gow’s property a balance of $160,000 was paid to a company associated with this offender’s wife.”

“… the seventh count .. is that between 19 November 2013 and 19 May 2014 at Kariong the offender did dishonestly obtain a financial advantage, namely, an ANZ Bank credit card in the name of Robin Spratt by representing to the ANZ Bank that Mr Spratt was indeed employed by a firm called Eureka Contracting Pty Limited, again an offence contrary to s 192E(1)(b). It appears according to the facts that that credit card was used to pay for advertising for an entity connected with this offender, also office supplies and tyres were acquired for the offender’s wife as well as a second-hand Mercedes vehicle for this offender. The facts indicate that the outstanding amount resulting from that charge either to the financial institution or to the individuals is an amount of $18,224.”

17. The offences involved in the second indictment were identified to involve:

●   “The first count is that between 22 March and 8 May 2012 at Umina and elsewhere the offender dishonestly obtained a financial advantage, namely, a Suncorp platinum visa credit card with a credit limit of $28,000 in the name of Graham Beeforth by representing to that institution that Mr Beeforth had made an application to open a credit card account, again an offence contrary to s 190E(1)(b). The credit card so the facts indicate was used to pay an AGL Energy bill of $900 as well as a $300 approximately bill for Telstra, both in the offender’s name.”

● “[t]he second count is that between 28 November and 4 December 2012 at Umina and elsewhere the offender dishonestly obtained a financial advantage, namely, an ANZ Bank credit card in the name of Wade Meese by representing to that institution that Mr Meese had made an application for the credit card, again s 192E(1)(b). The credit limit of that card was $6,000 according to the facts, $1,000 was withdrawn by this offender in cash. There was an amount of a little over $215 used to pay for fuel by this offender and the outstanding amount on that card is in the order of $2,632.77.”

18. The 19 offences taken into account on the Form 1 were committed between February 2008 and May 2014. His Honour noted that they had involved:

“three contraventions of s 254, that is to say, using a false document intending to induce a person to accept it as genuine and obtaining a financial advantage. Those are number 6, involving a person called Mr Darge, number 15 involving a person by the name of Oxborough and number 16 involving a person by the name of Mr Fortunosa. “

“ There were the remaining 15 counts contrary to s 192E which either involved the obtaining of credit cards and/or personal loans on behalf of this offender and Mr Fowler which have been used to extract money from those financial institutions and much of the money it was said went to either or both offenders.”

“Finally, there is one further matter which is dealing in identity information in relation to the gentleman, Mr Meese, who was one of the complainants in the trial which was commenced before me. In relation to that charge it related to the issue of an ANZ credit card which was never used.”

19. Lakatos SC DCJ also explained what the parties had agreed as to the circumstances in which each of Mr Clinton’s individual offences had been committed, to which it will be necessary to return in relation to ground 1. On those facts his Honour found that his offences had been aggravated by the fact that they were not only part of planned or organised activity, but “clearly enough” committed for financial gain: s 21A(2)(o) of the Crimes (Sentencing Procedure) Act.

20. Section 21A(2) required, however, that in sentencing Mr Clinton additional regard not be paid to any of the aggravating factors there specified, “if it is an element of the offence”. Thus the fact that Mr Clinton’s offences had each been committed for financial gain could not be taken into account as an aggravating factor under s 21A(2)(o), unless its nature or extent was unusual, because that factor was an inherent characteristic of each of the offences to which he had entered his pleas: Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28 at [46] and Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97 at [37].

21. It was not the Crown’s case on sentence or appeal that that there was anything unusual about this aspect of Mr Clinton’s offending, which would have permitted his pursuit of financial gain to be taken into account as an aggravating factor.

22. It follows that the parties’ common position on appeal, that his Honour fell into error in treating this aspect of Mr Clinton’s offending as an aggravating factor under s 21A(2)(o) must be accepted, with the result that this ground of appeal must be upheld.

Ground 1: Whether the offences were aggravated on the basis that each offence constituted a series of acts: s 21A(2)(m)

23. The aggravating factor specified in s 21A(2)(m) is that “the offence involved multiple victims or a series of criminal acts”. Whether that aggravating factor was present, was in issue on sentence. Lakatos SC DCJ explained what had been agreed as to the circumstances in which each of the offences to which Mr Clinton had entered his plea and those which were dealt with on the Form 1, were committed. In summary his Honour noted:

The first indictment

1. Count 1 – Mr Morton provided Mr Clinton with his personal identification information, understanding it was required for business and taxation purposes. Mr Clinton provided that information to Mr Fowler, who made an online credit card application in Mr Morton’s name in 2008 to Citibank, providing Mr Clinton’s business address and a phone number in another name. Fraudulent payslips in the name of a business with which Mr Clinton represented he was associated, were also provided, A credit card was issued in Mr Morton’s name, which was used for numerous transactions in March and April 2008.

2. Count 2 – Mr Oldfield also provided Mr Clinton with his driver’s licence details for a finance application he decided not to pursue. In April 2010 an online loan application in his name was made to ME Bank from Mr Fowler’s computer. The proceeds of the $12,306 loan was used in relation to a credit card obtained in Mr Oldfield’s name. That offending was dealt with on the Form 1.

3. Count 3 - In August 2008 a Mr McIntosh died in the ACT. His personal details were used in April 2010 to make an online loan application for $19,500. The proceeds were used in relation to a credit card obtained in Mr McIntosh’s name. That offending was also dealt with on the Form One.

4. Count 4 – In November 2010 ME Bank also issued a loan in the name of Mr Lightowler for $30,000, almost all of which was transferred to the savings account. Some of those funds were then transferred to other accounts controlled by the offenders, with the balance used for credit card and cash transactions.

5. Count 5 – In late 2010 Mr Wilson, the partner of Ms Hillenberg provided Mr Clinton with copies of their driver’s licenses. A personal loan for $24,500 was obtained in the name of Ms Hillenberg. Some of these funds were used to pay for credit card transactions which are the subject of a Form 1 offence. $12,000 was deposited into an NAB account held by Mr Clinton and Mr Riley.

6. Count 6 – A Mr Gow was the trustee of a trust of which a Mr Herbert was the beneficiary. It was intended that the trust would purchase his home and business. Mr Clinton engaged a conveyancer, describing himself to be a director of Falcon Discretionary Holdings; submitted a home loan application to Resi Finance, forging Mr Gow’s signature on the application form; and provided false payslips to support the application. A mortgage loan for some $660,000 was granted in Mr Gow’s name. On settlement the existing mortgage was discharged and the balance, $160,000, was paid to Falcon Discretionary Holdings, another of Mr Clinton’s wife’s companies.

7. Count 7 – In 2013 Mr Spratt provided Mr Clinton with his personal details. On his advice Mr Spratt opened a debit account with the ANZ bank. In December 2013, unbeknownst to Mr Spratt, an application for a credit card was made to the Bank. The credit card issued was used to pay for advertising for a company associated with Mr Clinton and to purchase a car.

The second indictment

24. There were two counts on this indictment.

1. In March 2011 Mr Beeforth sought Mr Clinton’s assistance in refinancing his loans and amalgamating his debts. He and his business partner were advised to utilise a trust. On that advice Mr Beeforth obtained an NAB account in the name of the trust, but later decided not to proceed with the refinance. In May 2012 Mr Fowler made an online credit application in Mr Beeforth's name to Citibank, giving false information about his employer and address. The card issued had a limit of $28,000, but was used for only two transactions. The first to pay an AGL bill for an account associated with Mr Clinton and a Telstra bill in the name of Mr Finnie.

1. In November 2012 Mr Fowler also made an online credit card application to the ANZ Bank in the name of Mr Meese. The credit card issued had a limit of $6,000. It was used to withdraw cash at a convenience store. CCTV footage showed Mr Clinton making that withdrawal.

25. In summary, his Honour’s account of what was involved in the Form 1 offences was:

1. A credit card application made in Mr Morton’s name in 2008 to the ANZ Bank. That card was issued with a limit of $5,000 and then also used for numerous transactions and cash withdrawals in March and April 2008.

2. Another online credit card application made in March 2010 in the name of Mr Oldfield. A card with a limit of $5,800 was issued in Mr Oldfield’s name. That card was also used for numerous transactions in March and April 2008, including for the purchase of theatre tickets in the name of Mr Finnie, a name by which Mr Clinton was known in the past.

3. In 2010 Mr McIntosh’s personal details were used to obtain an ME Bank Mastercard, via an internet application, with a credit limit of $12,490. It was also used for numerous transactions between April and May 2010, including purchases made in the name of Mr Clinton and Mr Fowler.

4. In August 2010 an ME Bank Mastercard application resulted in the issue of a credit card with a $12,000 limit, which was used for various purposes, including to pay for the repair of Mr Clinton’s car; his purchase of jewellery and Mr Fowler's payment of insurance and other expenses.

5. In 2010 Luke Darge as the result of a credit search he had conducted on himself, became aware of transactions and enquiries which he had not instigated. He discovered that a Citibank credit card had been obtained in his name and issued to an address of another of Mr Clinton’s associates, a Mr Riley. The card had been used to pay a Telstra bill in the name of Sid Finnie; to make payments to a company of which Mr Clinton’s wife was the sole director; and to make transactions in Mr Fowler’s name. The facility had also been linked to an account in the wife’s name.

6. In May 2011 a mortgage application in Mr Darge's name was made to Resi Home Loans to purchase a property at Woy Woy. It was supported by false pay slips and tax returns. The application was not processed, but documents relating to it were found by police on Mr Fowler’s home computer.

7. In November 2010 Mr Clinton submitted an application of a Members Equity Masters card in the name of Mr Burnett, providing false identification information. Mr Fowler claimed that this was an alias for a Mr Beishaar, who has not co-operated with police. The credit card issued was used for various transactions, mainly cash advances. A payment was made for a mobile phone account in the name of Thomas Askin, another name associated with Mr Clinton and for a merchant facility registered by his wife.

8. In December 2010 a Member’s Equity Savings account was opened in the name of Paul Burnett and a $27,000 loan obtained. The funds were used to keep an accounting credit card operational and some of the funds were transferred to the accounts of Mr Clinton and Mr Fowler.

9. In March 2011 Mr Clinton made an online credit card application to Members Equity Bank in Ms Hillenberg’s name. The Mastercard issued was used for numerous transactions, including payments associated with Mr Clinton’s wife and a business associated with him and cash withdrawals.

10. In March 2011 Mr Fowler made an online application with details provided by Mr Clinton, for a credit card issued by the St George bank in the name of Ms Hillenberg. This card was issued with a limit of $12,000 and later used.

11. In March 2011 Mr Fowler also made an online application in the name of Ms Hillenberg, for a credit card issued by Citibank. This card was issued with a limit of $16,000 and also used.

12. In March 2011 Mr Fowler made another online application in the name of Ms Hillenberg, for a credit card issued by the Commonwealth Bank. This card was issued with a limit of $4,000 and also used.

13. In March 2011 Mr Clinton was given copies of the identification documents of a Mr Gow, which he used to make an application to Members Equity for a Mastercard, which was issued with a limit of $12,000 and also used.

14. In May 2011 Mr Clinton also made an online land application in Mr Gower’s name to ME Bank. The $27,600 loan obtained was used for the fraudulent credit card and $7,500 was transferred to an NAB account Mr Clinton jointly held with Mr Riley.

15. In 2011 Mr Clinton and Mr Fowler submitted an application for $303,599 mortgage finance in the name of Mr Oxborough, a pensioner for purchase of a property at Kariong. It was also supported by false payslips and financial information. This loan was never completed.

16. In August 2011 Mr Clinton also submitted an online application for a credit card with ME Bank in the name of Mr Fortunosa. It was declined.

17. In 2012 false applications were made to obtain credit cards in the name of Mr Meese from the ANZ and Commonwealth Banks. Neither were ever used.

18. Mr Spratt also provided Mr Clinton with details of his NAB account. In 2014 Mr Clinton also obtained a credit card from that bank in Mr Spratt’s name, unbeknownst to him. That card was used to transfer $5,000 to a company associated with Mr Clinton’s wife.

19. At Mr Clinton’s behest Mr Spratt also opened an account at Westpac. In January 2014 Mr Clinton obtained another credit card from this Bank in Mr Spratt’s name, also unbeknownst to him. It was used to pay Mr Clinton’s personal living expenses, including car repairs, phone bills and motel accommodation.

26. On that evidence Lakatos SC DCJ concluded as to this issue that:

“The next factor which I consider, is whether or not the offences involved multiple victims or a series of criminal acts. Mr Daoud, in his written submission particularly, submitted that as each of the counts has been charged individually, “it is not open to use those circumstances as an aggravating factor”. That principle is sound but in my view does not fully cover the activities of this offender. True it is, that the initial obtaining of the credit card or the loan was an individual act involved on only one occasion but ultimately, every time the credit card was used or loans accessed, in my view, represented an individual criminal act not specifically charged but nevertheless an individual criminal act in which further moneys were fraudulently obtained from the various financial institutions. Therefore, the nature of this fraudulently activity, properly encompasses a series of criminal acts and therefore this aggravating feature in my mind, clearly applies, unfortunately time and time again.”

27. As discussed in Regina v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [29], s 21A(2)(m) is concerned with circumstances where the particular offence for which an offender is being sentenced involves either multiple victims or a series of criminal acts, which together form a single course of criminal conduct. Either factor aggravates the seriousness of that offence. It is not concerned, however, with offenders who are being sentenced for a series of offences involving criminal acts, even when committed against multiple victims.

28. The application of s 21A(2)(m) thus cannot be used to increase a sentence, where an offender is convicted of a series of offences, even if some of them are representative, because that would result in double counting: Hamze v R [2006] NSWCCA 36 at [48] and Jah v R [2006] NSWCCA 250.

29. Mr Clinton relied on the particulars of the offences to which he had entered his pleas, with each count being particularised as involving a single act, which had led to a specific financial advantage, rather than a course of conduct, or a series of criminal acts. This, he submitted, precluded the conclusion that his offences were aggravated, because they had each involved a series of criminal acts, as s 21A(2)(m) provides.

30. The counts in the first indictment were particularised in the following way:

“1.   Between 1 February 2008 and 1 April 2008 at BATHURST in the State of New South Wales did dishonestly obtain a financial advantage, namely a Citibank Credit Card account in the name of Jon Morton by deception namely, by representing that Jon Morton had made an application for the issue of that credit card.

2.   Between the 15 March and 28 April, 2010 at Umina and elsewhere in the State of New South Wales dishonestly obtained a financial advantage, namely a Members Equity Bank Personal Loan in the name of Garth OLDFIELD by deception, namely by representing that Garth OLDFIELD had made an application to obtain the said Personal Loan.

3.   Between the 16 May and 1 June, 2010 at Umina and elsewhere in the State of New South Wales dishonestly obtained a financial advantage, namely a Members Equity Bank Personal Loan in the name of Peter Graham McIntosh by deception, namely by representing that Peter Graham Mcintosh had made an application to obtain the said Personal Loan.

4.   Between the 21 November and 7 December, 2010 at Umina and elsewhere in the State of New South Wales dishonestly obtained a financial advantage, namely a Members Equity Bank Personal Loan in the name of David Lightowler by deception, namely by representing that David Lightowler had made an application to obtain the said Personal Loan.

5.   Between the 17 April and 22 April, 2011 at Umina and elsewhere in the State of New South Wales dishonestly obtained a financial advantage, namely an ME Bank Personal Loan in the sum of $24,500.00 by deception, namely by representing to Members Equity Bank Pty Ltd that Rita Victoria Hillenberg had made an application for the said ME Bank Personal Loan.

6.   Between the 1 June and 12 August, 2011 at Camden in the State of New South Wales used a false document, namely a Resi Mortgage Corporation Pty Ltd home loan application in the name of Robert John Stewart Gow, knowing it to be false, intending to induce some person to accept it as genuine, to obtain a financial advantage namely, a loan in the amount of $640,000.00.

7.   Between 19 November, 2013 and 19 May,2014 at KARIONG did dishonestly obtain a financial advantage, to wit an Australian and New Zealand Banking Corporation Credit Card account in the name of Robin SPRATT, by deception, that is, by representing to the Australian and New Zealand Banking Corporation that Robin SPRATT was employed by Eureka Contracting Pty Ltd.”

31. Those provided in the second indictment were:

“1.   Between the 22 March and 8 May, 2012 at Umina and elsewhere in the State of New South Wales dishonestly obtained a financial advantage, namely a Suncorp Platinum Visa Credit Card account with a credit limit of $28,000.00 in the name of Graeme Sidney Beeforth, by deception, namely by representing to Citibank Limited that Graeme Sidney Beeforth had made an application to open the said Suncorp Platinum Visa Credit Card account.

2.   Between the 28 November and 4 December, 2012 at Umina and elsewhere in the State of New South Wales dishonestly obtained a financial advantage, namely an ANZ Bank credit card account in the name of Wade Benjamin Meese by deception, namely by representing to the Australian and New Zealand Banking Corporation Ltd that Wade Benjamin Meese had made an application to open the said ANZ Bank credit card account.”

32. On appeal the Crown conceded that the facts which the parties had agreed in relation to the counts in the second indictment, fell outside the period of that indictment. In the result, it could be inferred that Lakatos SC DCJ had wrongly approached the sentence on the basis that the aggravating factor specified in s 21A(2)(m) was present for those offences.

33. Whether s 21A(2)(m) had otherwise been wrongly applied, remained in issue.

34. On the Crown’s approach, in the case of each of Mr Clinton’s offences, like in the case of offences involving the supply of drugs over a specified period considered in Tadrosse at [29], during which multiple instances of supply occurred, his fraud offences each involved a number of criminal acts described in the agreed facts. Together they comprised the course of conduct by which the offence was committed.

35. For example, count one in the first indictment in relation to the Citibank credit card account obtained in the name of Mr Morton by deception, had involved the representation that Mr Morton had made an application for the issue of that credit card; as well as Mr Clinton’s provision of Mr Morton’s personal identification information to Mr Fowler, for the purpose of the fraudulent online credit card application which he made to Citibank in Mr Morton’s name; the provision of Mr Clinton’s business address and a phone number in another name, to support the application; the use of fraudulent payslips in the name of a business with which Mr Clinton represented he was associated; and the use to which the credit card was then put, for the transactions which resulted in the financial advantage which Mr Clinton accepted that he had received, as the result of this criminal act.

36. While there is force in this submission, it cannot be overlooked, however, that the offence to which Mr Clinton’s plea was entered was one where the only particular provided was that it was committed by the representation that it was Mr Morton who had made the application for the issue of the credit card. The various other criminal acts which were involved in the commission of this offence and the benefit which Mr Clinton obtained from its commission, were not particularised.

37. The other offences were likewise particularised, as were the nineteen other offences taken into account on sentence for count 2. Unlike cases involving “rolled up offences” of the kind dealt with in Johnston v R [2017] NSWCCA 53 at [65] – [69], where a series of criminal acts are dealt within one count, in this case each count particularised only one criminal act.

38. That being so, while the agreed facts revealed not only how the criminal enterprise which Mr Clinton and Mr Fowler pursued had been conducted, but also the various uncharged criminal acts involved in the commission of each of Mr Clinton’s offences, none of the seven offences to which his pleas were entered, as particularised, involved a series of criminal acts which together comprised the offence.

39. In the result, while all that was agreed by the parties was undoubtedly relevant to the determination of both the objective seriousness of Mr Clinton’s offending and his moral culpability for that offending, account of the uncharged criminal acts involved in the seven offences for which Mr Clinton was sentenced, could not also be taken into account as an aggravating matter under s 21A(2)(m).

40. This ground therefore must also succeed.

Resentence

41. Given these errors, while the sentencing discretion must be exercised afresh by the Court, the question of whether some other sentence is warranted in law for Mr Clinton’s admitted offending also remains to be resolved, that too being in issue: s 6(3) of the Criminal Appeal Act and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

42. Relevant to that question is the further evidence received on appeal as to the state of Mr Clinton’s medical conditions and the offences which he admitted having committed while in custody, involving his extensive misuse of the offender telephone system. He was disciplined for that offending in February 2018.

43. On the Crown’s case, on resentence the Court could not conclude that some lesser aggregate sentence was warranted in law, given what had been agreed as to Mr Clinton’s deliberate pursuit of his role in the criminal enterprise which he had pursued with Mr Fowler, against a number of victims, from 2008 until 2014, by way of a systematic and dishonest exploitation of financial institutions and the electronic banking system.

44. That conclusion was supported by Mr Clinton’s lengthy record of prior offending involving dishonesty, which dated back to 1964 and included a number of similar offences to those here in question, committed in 1997, 2002 and 2011, as well as a conviction in 2015 for perverting the course of justice. In the result, personal deterrence and protection of the community had to feature in his sentence. Mr Clinton has also been before this Court on four prior occasions by way of appeals by him or the Crown with respect to his long history of offending under the name of Sydney Thomas Finnie: R v Finnie [1999] NSWCCA 329; R v Finnie [2002] NSWCCA 533; R v Finnie (No 2) [2004] NSWCCA 150 and Finnie v R [2007] NSWCCA 38”.

45. Account also had to be taken of the serious aggravating factor that most of Mr Clinton’s offences were committed while he was on conditional liberty for other offending involving dishonesty. There was also evidence that he had either minimised or denied his offending and had blamed others, revealing his lack of insight and limited prospects of rehabilitation, particularly given that his last offence was committed when he was aged 72. Specific deterrence had a significant role to play in his sentence, there being no realistic prospect of his rehabilitation, as his continued offending in custody confirmed.

46. Mr Clinton met the Crown’s case on resentence by submitting that the evidence as to the nature of his medical conditions, the continuation of which was established by the further evidence received on appeal; his pleas and the assistance he had given; and the fact that the position of trust which he had occupied, which would no longer be available to him on release from custody, meant that he would not be able to pursue like offending, once released from custody. When the errors into which Lakatos SC DCJ fell were considered together with these considerations, it would be concluded that there was a proper basis for the imposition of a lesser sentence upon him.

47. I am satisfied that Mr Clinton’s case cannot be accepted.

48. When the aggregate sentence was imposed on Mr Clinton under s 53A of the Crimes (Sentencing Procedure) Act, Lakatos SC DCJ indicated that the sentences that would have been imposed for each of his offences, taking into account all of the relevant objective and subjective matters revealed by the evidence, including considerations of parity and the 30% discount given for his late pleas and assistance, had separate sentences been imposed. The sentence for count 2 on the first indictment took into account the nineteen offences dealt with under s 33. They were indicated to be:

OFFENCE	MAXIMUM PENALTY	INDICATIVE SENTENCE
1st Indictment
Count 1: Dishonestly obtain financial advantage by deception Section 178BA(1) Crimes Act 1900 (repealed) (MORTON - Citibank Credit Card Account) DOO: 1/2/2008 - 4/8/2008	5 years imprisonment	13 months imprisonment
Count 2: Dishonestly obtain financial advantage by deception Section 192E(l)(b) Crimes Act 1900 (OLDFIELD - Members Equity Bank Personal Loan) DOO: 15/3/2010 - 28/4/2010	10 years imprisonment	3 years imprisonment
Count 3: Dishonestly obtain financial advantage by deception Section 192E(l)(b) Crimes Act 1900 (MCINTOSH - Members Equity Bank Personal Loan) DOO: 16/5/2010 -1/6/2010	10 years imprisonment	23 months imprisonment
Count 4: Dishonestly obtain financial advantage by deception Section 192E(l)(b) Crimes Act 1900 (LIGHTOWLER - Members Equity Bank Personal Loan) DOO: 21/11/2010 - 7/12/2010	10 years imprisonment	30 months imprisonment
Count 5: Dishonestly obtain financial advantage by deception Section 192E(l)(b) Crimes Act 1900 (HILLENBERG - ME Bank Personal Loan) DOO: 17/4/2011-22/4/2011	10 years imprisonment	28 months imprisonment
Count 6: Use false document to obtain financial advantage Section 254 Crimes Act 1900 (GOW – Resi Mortgage Corporation Pty Ltd Home Loan) DOO: 1/6/2011 – 12/8/2011	10 years imprisonment	42 months imprisonment
Count 7: Dishonestly obtain financial advantage by deception    Section 192E(l)(b) Crimes Act 1900 (see below) (SPRATT - ANZ Credit Card Account) DOO: 19/11/2013 -19/5/2014	10 years imprisonment	26 months imprisonment
2nd Indictment
Count 1: Dishonestly obtain financial advantage by deception Section 192E(l)(b) Crimes Act 1900 (BEEFORTH - Suncorp Platinum Visa Credit Card    account) DOO: 22/3/2012 - 8/5/2012	10 years imprisonment	23 months imprisonment
Count 2:    Dishonestly obtain financial advantage by deception Section 192E(l)(b) Crimes Act 1900 (MEESE - ANZ Bank Credit Card Account) DOO: 28/11/2012 - 4/12/2012	10 years imprisonment	13 months imprisonment

49. It was not Mr Clinton’s case that any of these indicative sentences were excessive. They must be regarded as the head sentences which would have been imposed for each offence: Dimian v R [2016] NSWCCA 223 at [47]-[49]. Together they totalled some 16 years and 9 months.

50. It follows that his Honour’s application of the principle of totality, which he was bound to apply in arriving at the aggregate sentence, involved not only considerable concurrency, but also very considerable leniency. The aggregate sentence imposed upon Mr Clinton was 5 years and 8 months, with a non-parole period of only 3 years and 9 months, for all of his serious offending, pursued over the course of a number of years, against a variety of victims.

51. The non-parole period is the minimum period of actual incarceration which Mr Clinton must spend in full-time custody, having regard to all the elements of punishment, including rehabilitation, the objective seriousness of his offences and his subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628–629; [1974] HCA 26.

52. As discussed in R v Jarrold [2010] NSWCCA 69 at [56], concurrency should not result “simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct”. Nor can the result of the application of the totality principle be, in effect, some kind of discount for multiple offending: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [18].

53. In my view, on the evidence, there is simply no basis upon which it can be concluded that the sentence imposed on Mr Clinton should have been less than that which was imposed upon him. That is reinforced when account is taken of the views which Lakatos SC DCJ reached about his subjective circumstances, which led to the finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act.

54. In my view, were there now to be any further reduction in the aggregate sentence imposed on Mr Clinton, the result would be a sentence which would be manifestly inadequate in the circumstances of the serious offending for which he must be resentenced.

55. That conclusion is further reinforced by the account which must be taken of the nineteen other offences committed by Mr Clinton which were dealt with under s 33 of the Crimes (Sentencing Procedure) Act, in arriving at both the sentence for count 2 in the first indictment and the aggregate sentence which was imposed upon him. That, too, reveals the leniency of the sentence imposed upon him. The account taken of these offences had to result in an increase in the penalty which would otherwise have been imposed on Mr Clinton for the seven offences for which he was sentenced. That was because of the obligation in such a case, to give greater weight to the need for personal deterrence and the community’s entitlement to extract retribution for the serious offences for which Mr Clinton was being sentenced: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].

56. Further, the view that Mr Clinton is unlikely to offend further in future cannot be reached, given the evidence of his conduct while in custody.

57. In the result, while the two grounds of appeal advanced have been made out, I am of the view that the appeal must still be dismissed.

Orders

58. The orders I would make are:

1. The application for extension of time to appeal is granted.

2. Leave to appeal granted.

3. Appeal dismissed.

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Decision last updated: 13 April 2018