Daniel Michael Horne v The Queen

[2011] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Daniel Michael Horne v R [2011] NSWCCA 225
Hearing dates:	20 September 2011
Decision date:	14 October 2011
Before:	Bathurst CJ at 1 James J at 2 Hoeben J at 36
Decision:	Leave to appeal against sentence is granted but the appeal is dismissed
Catchwords:	Criminal Law -Special Circumstances - whether finding by sentencing judge of special circumstances carried into effect in sentences imposed
Legislation Cited:	Crimes Act - ss 93T,178BA, 193B(3),300(1)300(2) Commonwealth Criminal Code - s 145.1(5) Financial Transaction Reports Act 1988 (Cth) Crimes (Sentencing Procedure) Act - s 44)
Cases Cited:	Cranshaw v R [2009] NSWCCA 80 R v SJD [2004] NSWCCA 182 Jackson v R [2010] NSWCCA 162 R v Swan [2005] NSWCCA 252 R v Cramp [2004] NSWCCA 264 Stoeski v R [2008] NSWCCA 230 R v Simpson (2010) 53 NSWLR 704 R v Weldon (2002) 136 A Crim R 55
Category:	Principal judgment
Parties:	Daniel Michael Horne, Regina
Representation:	V Lydiard (Crown) A Francis (applicant) S Kavanagh ( Crown) Nyman Gibson Stewart (applicant)
File Number(s):	2009/71412
Decision under appeal	Date of Decision: 2010-05-21 00:00:00 Before: Lakatos DCJ File Number(s): 2009/71412

Judgment

1. BATHURST CJ: I agree with the judgment of James J.

1. JAMES J: Daniel Michael Horne applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Lakatos.

1. The applicant was sentenced for a very large number of offences, to all of which he had pleaded guilty, consisting of:-

Three offences of obtaining money by deception ( Crimes Act s178BA, since repealed).

One offence of participating in a criminal group ( Crimes Act s 93T).

Two offences of using a false instrument ( Crimes Act s 300(2), since repealed). In sentencing the applicant for one of these offences the sentencing judge took into account 84 offences of obtaining money by deception, using a false instrument or recklessly dealing with the proceeds of crime.

Two offences of recklessly dealing with the proceeds of crime ( Crimes Act s 193B(3))

One offence of making a false instrument ( Crimes Act s 300(1), since repealed).

One offence of using a forged Commonwealth document ( Commonwealth Criminal Code s 145.1(5)). In sentencing the applicant for this offence the sentencing judge took into account 17 offences under the Financial Transaction Reports Act 1988 (Cth).

1. The sentences imposed for these offences were:-

For each of the three offences of obtaining money by deception, a fixed term of imprisonment of 12 months commencing on 26 July 2009.

For the offence of participating in a criminal group, a fixed term of imprisonment of 12 months commencing on 26 September 2009.

For each of the two offences of recklessly dealing with the proceeds of crime, a fixed term of imprisonment of 12 months commencing on 26 November 2009.

For the offence of using a forged Commonwealth document and taking into account the offences under the Financial Transaction Reports Act, a fixed term of imprisonment of two years commencing on 26 January 2010.

For one offence of using a false instrument and taking into account the further offences, a sentence consisting of a non-parole period of two years four months commencing on 26 March 2010 and a balance of the term of 1 year two months expiring 25 September 2013.

For each of one offence of using a false instrument and one offence of making a false instrument, a fixed term of imprisonment of 15 months commencing 26 March 2010.

1. The effective total sentence consisted of a head sentence of four years two months and fixed terms and a non-parole period totalling three years.

The Facts of the Offences

1. The agreed statement of the facts of the offences placed before the sentencing judge ran to 49 pages and his Honour's summary of the facts of the offences occupied several pages of his remarks on sentence. Having regard to the nature of the only ground of appeal against sentence, it is sufficient to quote a few parts of his Honour's remarks, which indicate the general nature of the applicant's offending. In these parts of his remarks his Honour said:-

"The strike force was investigating the activities of an organised crime group that stole cheques and personal banking details in the mail. Using those personal details on stolen bank documents, high quality counterfeit documents including driving licences and Medicare cards were manufactured and used to open bank accounts. The stolen cheques were altered and negotiated through the fraudulently opened accounts."

"The offender, Daniel Horne, was one of a number of runners for the syndicate. The role of the runner was that they had a key role of entering financial institutions with high quality counterfeit identity documents and pretending to be other people. The offender, and other runners, then manipulated the accounts making deposits and withdrawals while purporting to be the legitimate account holder."

"He (the applicant) admitted relevantly that he opened numerous bank accounts and committed about $1,000,000 worth of frauds by his reckoning. Assessments by the investigators indicate that the prisoner opened twenty-one bank accounts in false names at eight different banks and financial institutions. Transactions totalling $1,024,822.88 were negotiated in these accounts. There were some forty-six unlawfully obtained cheques totalling $713,299.88 laundered through those accounts and of this exposure $365,000 in over the counter withdrawals were made."

"The prisoner in the interview he provided to the police indicated what he was to be paid for what he did. That was a flat fee of $100 to open each of the 21 bank accounts and also was to be paid 10% of the amounts withdrawn. The prisoner gave evidence in the proceedings before this Court and said that he was in fact to gain 15 per cent of the withdrawals plus $100 for opening each of the accounts. The facts do not otherwise nominate a sum which the prisoner ultimately obtained in the seven to nine months that he conducted these criminal activities. However, using the formulae that he supplied, it seems to me that he may well have acquired an amount of something in the order of $155,000."

The Applicant ' s Subjective Features

1. The applicant was 34 years old at the time of being sentenced. He had a minor previous criminal history, which the sentencing judge found to be comparatively insignificant.

1. Up until about 2007, when he was aged in his early 30's, the applicant had not been a significant user of drugs, only using cannabis on an irregular basis. However, in about 2007 he began experimenting with crystal methylamphetamine ("ice"). Within two months of first using ice the applicant had become a heavy user and he was a heavy user during the period of his offending. The prisoner gave evidence in the proceedings on sentence, which the sentencing judge accepted, that by the time he was arrested the applicant and his partner had a combined drug habit costing $10,000 a week.

1. Until about five months before his arrest the applicant had had a significant gambling habit, sometimes gambling up to $1,000 at a time on poker machines. However, about five months before his arrest he had succeeded in bringing his gambling addiction under control.

1. After his arrest the applicant told police that he was prepared to assist in the arrest and prosecution of other persons in the criminal group, including giving evidence at any trials. An affidavit from an investigating police officer disclosed the scope of the group's activities (approximately 200 victims and offences involving more than $5 million). The applicant's assistance was assessed by police to be timely and accurate.

Cranshaw v R

1. The sentencing judge found considerable assistance in sentencing the applicant in the earlier case of Cranshaw v R in which there was an appeal to the Court of Criminal Appeal [2009] NSWCCA 80.

1. In Cranshaw the offender had been sentenced by another District Court judge for a large number of offences under s 178BA and s 300(2) of the Crimes Act . In Cranshaw the offender had been a "runner" for a criminal group and Judge Lakatos found that the facts in Cranshaw were "substantially similar, if not almost identical, to the prisoner's criminal offending here". Cranshaw also had not had any relevant prior criminal history and had had a significant drug problem. He also had entered early pleas of guilty and had provided substantial assistance.

1. In Cranshaw the sentencing judge had held that he should adopt a starting point for the aggregate sentence of seven years and should allow a combined discount of 45 per cent for the early pleas of guilty and the assistance, thus arriving at a total head sentence of three years 10 months.

1. In the present case the sentencing judge considered that the applicant's offending had been somewhat more serious than Cranshaw's offending. The applicant's offending had taken place over a longer period of time and had involved more money and the applicant, having moved to Queensland, had returned from Queensland and sought out a person higher in the group so that he could commence re-offending.

1. Having regard to these differences in the two cases, the sentencing judge selected a starting point for the aggregate sentence of 7 1/2 years, and not 7 years. The sentencing judge then allowed the same combined discount of 45 per cent for the early pleas of guilty and the assistance, arriving at a rounded-off figure of four years two months for the total head sentence. His Honour then fixed a total non-parole period of 3 years.

The appeal against sentence

1. The only ground of appeal against sentence was:-

The sentencing judge erred in failing to give effect to a finding of special circumstances.

1. It was apparent from the submissions of counsel for the applicant that the ground of appeal was directed to the aggregate sentence and not to any particular individual sentence.

1. The only part of the sentencing judge's remarks on sentence in which he referred to the subject of special circumstances was at the very end of his remarks, where, after stating the individual sentences he was imposing, his Honour said:-

"That comprises an effective sentence therefore of a non-parole period of three years commencing from the date of your arrest being 26 July and expiring on 25 July 2012. 25 July 2012 is the earliest date in respect of which you will be eligible for release. There is an additional balance of sentence of one year and two months which will expire on 25 September 2013.

Those sentences do not accord with the statutory ratio in s 44, however I find special circumstances by reason of the fact of your need for rehabilitation and to address your drug use and by reason of the accumulation of sentences."

Submissions for the applicant

1. Counsel for the applicant referred to s 44(2) of the Crimes (Sentencing Procedure) Act, as it then stood, which provided that the non-parole period of a sentence had to be not less than three quarters of the term of the sentence, unless the Court decided that there were special circumstances for it being less.

1. The sentencing judge had found special circumstances within s 44(2). However, the aggregate fixed terms and non-parole period imposed on the applicant were 72 per cent of the aggregate head sentences and the period during which the applicant would be eligible for release on parole had been increased by only about six weeks from what it would have been, if the "statutory ratio" under s 44(2) had been preserved. It was submitted that the sentencing judge had failed to give effect in any significant way to his finding of special circumstances. That finding had been based, not merely on the accumulation of sentences, but also on the applicant's need for rehabilitation, including his need to address his drug addiction.

1. Counsel for the applicant referred to R v SJD [2004] NSWCCA 182. In SJD the principal judgment was given by Levine J, with whose judgment the others members of the Court agreed. Levine J held that a reduction in the aggregate non-parole period of merely six weeks from what the aggregate non-parole period would have been if the statutory ratio had been observed, after the sentencing judge had made a finding of special circumstances, was erroneous. Levine J referred in his judgment to parts of the evidence about the applicant which had been before the sentencing judge and to an express finding by the sentencing judge that the applicant would require ongoing rehabilitation in the community after his release. Levine J concluded that the sentences actually pronounced did not accord with what the sentencing judge must clearly have had in mind.

1. Counsel for the applicant referred to cases in which SJD has been followed, including Jackson v R [2010] NSWCCA 162 at [22].

1. Counsel for the applicant also referred to Cranshaw , the case on which the sentencing judge had placed considerable reliance in arriving at the aggregate head sentence. In Cranshaw the aggregate sentences imposed on the offender were head sentences totalling three years 10 months and non-parole periods totalling two years 10 months. The sentencing judge had found special circumstances in the offender's drug addiction and in the accumulation of sentences.

1. An appeal against sentence to the Court of Criminal Appeal was successful, the Court of Criminal Appeal reducing the aggregate non-parole periods to two years six months and increasing the parole period to one year four months. Hall J, who gave the principal judgment with which the other members of the Court agreed, held (at [71]) that "this Court should proceed on the basis that his Honour intended to give effect to a finding of special circumstances but effectively failed to do so".

1. It was submitted by counsel for the applicant that there were good grounds in the present case for a substantially extended parole period, including that the applicant had had no significant criminal history before committing the offences for which he was sentenced and had a serious drug addiction.

Submissions for the Crown

1. Counsel for the Crown submitted that s 44 of the Crimes (Sentencing Procedure) Act , as it then stood, applied, on its proper interpretation, only to individual sentences and not to the aggregate sentence when a sentencing judge was sentencing for more than one offence. Counsel referred to R v Swan [2005] NSWCCA 252 especially at [19] per Rothman J.

1. It is convenient to deal with this submission immediately. The submission may be strictly correct but sentencing judges and the Court of Criminal Appeal, in relation to sentencing for more than one offence, usually had some regard to the statutory ratio in s 44(2) in determining what should be the relationship between the aggregate non-parole periods and fixed terms and the aggregate head sentence and the present sentencing judge clearly had regard to this matter.

1. Counsel for the Crown referred to cases in which it has been held that, if there has been a finding of special circumstances, the size of any adjustment to the statutory ratio so as to reflect the finding of special circumstances raises so many matters of a discretionary character that the Court of Criminal Appeal will be very slow to intervene. These cases include:- R v Cramp [2004] NSWCCA 264 at [31]; Stoeski v R [2008] NSWCCA 230 at [25].

1. Counsel for the Crown also referred to the principle that the length of the non-parole period in a sentence (or the length of the total non-parole periods in a number of sentences), that is the time an offender must necessarily spend in prison before being eligible for release on parole, should properly reflect all the circumstances of the offence and the offender, including the objective gravity of the offence and the need for general deterrence. This principle operates to limit the range for an extended balance of the term of a sentence; R v Simpson (2001) 53 NSWLR 704 at 718 [65].

1. Counsel for the Crown submitted that the sentencing judge had, near the beginning of his remarks on sentence, stated the overall sentence he intended to set and had, by the sentences he had proceeded to set, achieved precisely what he had intended. The present case was not a case where the sentencing judge had failed to give effect to what he could be taken to have intended.

Decision

1. At almost the beginning of his remarks on sentence the sentencing judge said:-

"Before I proceed to give my reasons I will indicate the effective sentence which I will impose at the end of these reasons. In my opinion, the appropriate sentence for all of the matters is an effective sentence comprising a non-parole period of three years to date from the date of arrest and an additional term of one year and two months. I will give the dates at the end of the reasons."

Near the end of his remarks on sentence the sentencing judge pronounced the individual sentences. His Honour then summarised the effective sentence and made the finding of special circumstances, in the parts of his remarks which I quoted earlier in this judgment.

1. It was appropriate, when his Honour was sentencing for such a large number of offences, for his Honour to have regard to the sentencing principle of totality and to give careful consideration to what aggregate sentence he should impose. It was necessary that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct; R v Weldon (2002) 136 A Crim R 55 at 62[46].

1. The sentencing judge gave a careful explanation in his remarks on sentence of how he had arrived at the total head sentence of four years two months. In my opinion, it can be inferred from his Honour's remarks that his Honour, having determined that the total head sentence should be four years two months, considered that a period of 3 years was the minimum period the applicant should necessarily have to serve in prison, having regard to the objective gravity of the offences he had committed and the need for the aggregate sentence to give effect to the various purposes of sentencing, including deterrence. His Honour then noted that the aggregate head sentence of four years two months and the aggregate non-parole period of three years did not accord with the ratio in s 44(2) of the Act. His Honour then made a finding of special circumstances.

1. In my opinion, the present case is to be distinguished from other cases, in which the Court of Criminal Appeal has concluded that the sentencing judge failed in some way to achieve what the sentencing judge should be taken to have intended to achieve by a finding of special circumstances. In the present case the sentences imposed by the sentencing judge achieved what his Honour stated, both near the beginning of his remarks and near the end of his remarks, as being what he intended to achieve. In such a case this Court should respect the wide discretion which a sentencing judge who has made a finding of special circumstances has, in determining the extent of any departure from the statutory ratio.

1. In my opinion, leave to appeal against sentence should be granted but the appeal against sentence should be dismissed.

1. HOEBEN J: I agree with James J.

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Decision last updated: 14 October 2011