Dermish v The Queen - [2000] WASCA 418

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DERMISH -v- THE QUEEN [2000] WASCA 418

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 13 DECEMBER 2000

DELIVERED : 13 DECEMBER 2000

FILE NO/S: CCA 112 of 2000

BETWEEN: SHANE DERMISH
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Application of totality principle - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences varied

Representation:

Counsel:

Applicant: Mr T F Percy, QC & Ms L Boston
Respondent: Mr R E Cock, QC

Solicitors:

Applicant: Gunning
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Duncan (1983) 9 A Crim R 354
Mill v The Queen (1988) 166 CLR 59

Case(s) also cited:

Dinsdale v The Queen (2000) 175 ALR 315
Mussari v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
R v Todd (1982) 2 NSWLR 517
Wagenaar v The Queen [2000] WASCA 325

MURRAY J: This is an application for leave to appeal against sentences of 2 years 11 months imprisonment imposed in the District Court on 2 May this year for 12 offences of fraud and one of attempted fraud. The appeal is on grounds amended at the hearing, the first of which is concerned with what is effectively asserted to be an error on the part of the learned sentencing Judge in the application to the facts of the case of what has come to be called the totality principle and the second directly challenges the length of the terms and alleges that they are manifestly excessive in all the circumstances, including particularly those identified in the ground, which are concerned with the personal circumstances of the applicant.
They are identified as being that he was a first offender, that he was unlikely to reoffend, that he had acted under a situation of considerable duress in relation to cocaine addiction and pressure put on him by suppliers, that he had reformed from his drug use and since his release has regained employment and has not again offended, that he had an excellent work record and had been a useful member of the community, that his plea of guilty was made on the fast‑track basis and that he had been already substantially punished for the offences committed during this period of his life which is described as an "errant period".
Many of those matters were matters to which his Honour the sentencing Judge expressly gave attention. Perhaps the most significant feature of them for present purposes is the demonstrated proposition that the applicant had, following the period of offending and following service of a sentence of imprisonment in South Australia, been enabled to return to his home state, New South Wales, where he had again undertaken employment and had commenced a process of rehabilitating himself and reintegrating himself into the community.
Those circumstances operated in this way: the offending behaviour started here in Western Australia on 27 June 1997 and a number of offences were committed before the applicant, as part of a process of facilitating the commission of the offences, travelled to South Australia and commenced to offend there. On 10 September 1997 he commenced to commit there a series of offences concluding on 14 October 1997, returned here to Western Australia and resumed the offences committed in this state, the last such offence being committed here on 27 October of that year.
The completed offences committed in Western Australia were, as I have indicated, all offences of fraud, contrary to the Criminal Code s 409, punishable by a maximum of 7 years imprisonment. The offences committed in South Australia were charged and dealt with differently as a series of offences of a summary character committed against provisions of the Financial Transaction Reports Act 1988 (Cth). However, it is appropriate to describe the offending in its totality as being the commission of offences of a like kind.
The learned sentencing Judge in his remarks on sentence noted that, and all that I would wish to repeat of the observations that his Honour made is a short description of the total effect of what was done. His Honour said that the offences committed in Western Australia involved the obtaining of just over $200,000 in cash from 12 separate financial institutions over a period of 3 or 4 months by the use of false names, the use of various forged documents and the telling of various lies.
On the other hand his Honour observed that he must allow for the fact that the applicant had entered an early plea of guilty which the courts have indicated many times entitles him to a discount of the sentence that would have otherwise have been appropriate. His Honour then went on to refer to some of the personal circumstances of the applicant and concluded his observations with a reference to the fact that there was a co-offender who had been involved in the commission of the offences.
The effect, in its totality, of what occurred then was that the commission of a series of 39 offences of a like kind, 13 here and 26 in South Australia, over the period of four months involved, resulted in a loss of something in the order, broadly speaking, of $280,000 to the various financial institutions who were the victims of those offences.
In relation to the first ground of appeal the remarks of his Honour upon which attention is focused in my opinion reveal error on the part of the learned sentencing Judge. It had been put to his Honour, and the Crown then accepted, as the Crown now accepts, the view that it was appropriate to have regard to the time during which the applicant had been imprisoned in South Australia for like offences and to treat the whole matter on a totality basis. His Honour, however, went on to observe that there were some difficulties in that, as his Honour perceived them to be, and he referred to the offences in South Australia which whilst they may have been like in nature, were dealt with differently under Commonwealth legislation and dealt with summarily by a Magistrates' Court in South Australia.
His Honour said that there was, in a federal entity like Australia, a limited degree to which the principles of totality could operate in these circumstances and said, "but again, for what it is worth, I bear that in mind." His Honour then went on to observe that, as is no doubt correct, he had to bear in mind the total criminality involved as well as the total punishment which was imposed.
The principles of the law are clearly stated in the High Court's decision in Mill v The Queen (1988) 166 CLR 59 and particularly in their Honour's judgment at 62 ‑ 63. The general principle is that in deciding the appropriate sentence for a single offence or a group of offences, a second sentencing judge is to have regard, whether or not the offences are of a like kind, punished in the same State or in different States, to the fact that there has been imposed upon the offender punishment in respect of other offences which impinges upon and relates to the punishment which is to be imposed for the offences now before the court. The application of the totality principle must cause the judge on the second occasion to consider what effective sentence in its aggregate would have been likely to have been imposed if the accused had committed all the offences in the one jurisdiction and had been sentenced for all at the same time. That puts the totality principle in the terms in which it was submitted to his Honour, the sentencing judge in this case, it was to be applied. However, as has been seen, his Honour expressed an incapacity to do so in a full and complete way and expressed himself to have encountered difficulties in that regard and thus, as I have said, fell into error.
One additional aspect of it to which I should refer, it seems to me, is that, as stated by the High Court at 67 of the judgment in Mill, the only course open to the second sentencing court is to adopt a lower head sentence that takes account of any deferment of sentence that has taken place, during which time the offender has been in custody. Their Honours said:
"It is true that in those circumstances the second sentence might fail to reflect adequately the seriousness of the crime in respect of which it is imposed."
And whilst describing that outcome as unfortunate, their Honours went on to say it was an outcome which:
"… is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries."
Whether it is necessary to put it in those terms or not, it seems to me to be an aspect which is material in this case, having regard to the circumstances of service of a sentence of imprisonment in South Australia, release and commencement of the process of rehabilitation to which I have previously referred, before the applicant came to be sentenced here.
The circumstances, broadly put are these; the South Australian court imposed a total head sentence of 4 years imprisonment and ultimately it came to be the case that the non‑parole period attaching to that was a period of 18 months. As I have understood the position, upon the service of that term of 18 months imprisonment the applicant would then have been available to be released on parole except that he was to be extradited to this State and dealt with here. A term of some 26 days imprisonment was spent in custody at that time while the applicant awaited extradition to Western Australia. He was then extradited, spent a period of almost exactly a month in custody here before being released to bail and on parole on 18 July 1999, before being finally dealt with by his Honour, the sentencing Judge, on 2 May 2000. It was during that period that, as I have mentioned, he returned to New South Wales and commenced his process of re‑assimilation into the community and rehabilitation.
His Honour, when he came to impose sentence, allowed the credit of 1 month for the time spent in custody in this State. His Honour was not aware of the fact that there was the additional period of 26 days but clearly his Honour would have taken that into account and reflected that in his sentencing judgment had he known of it. It was appropriate to do so. So his Honour imposed sentences for each of the offences before the court of 2 years and 11 months, ordered each to be served concurrently and ordered eligibility for parole.
The various circumstances to which I have referred seem to me to result in the conclusion that, his Honour having committed the error which I have identified in his application of the totality principle, it falls to this Court to reconsider and re‑evaluate the sentences imposed by him. In their totality, they broadly resulted in the imposition of a term of 7 years imprisonment by way of head sentence and that seems to me in all the circumstances, particularly including the delay in the process of sentencing which occurred, to the degree that it did occur, to have led to an outcome which was manifestly excessive. In relation to the sentences which this Court is then obliged to impose, it seems to me that no more could be justified in the totality of the matter than an aggregate sentence

in the order of 2 years imprisonment rather than the 3 years imprisonment his Honour imposed.

In my opinion the way to deal with this matter is as follows: I would grant the leave to appeal which is sought and allow the appeal to the extent necessary to vary the sentences imposed by the learned sentencing Judge so as to reduce them from terms of 2 years and 11 months imprisonment to terms of 1 year and 11 months imprisonment in each case. Then, to reflect the additional 26 days to which I have referred, it seems to me that the appropriate course would be to backdate those sentences so that they would be deemed to commence, not on 2 May 2000 when they were imposed, but upon 6 April 2000. Of course there would be no interference with his Honour's order as to eligibility for parole.
PIDGEON J: I agree with the reasons of Murray J.
WALLWORK J: I agree with the reasons and the order proposed by Murray J, and I would just like to add that, according to counsel, apparently the applicant served 16 months in custody in South Australia and then a further 2 months on home detention during which time he was allowed to go out and work. It was after that that he was extradited to Western Australia.
Ultimately he was released on bail, according to counsel, in Western Australia on 18 July last year. He was required to stay in Western Australia for some time but then his bail conditions were varied and he was allowed to return to Sydney on 19 August 1999. He then gained employment with Universal Home Securities in December of that year and when he came to be sentenced roughly 6 months later in Western Australia, he had been in employment since then and was putting aside $150 a week out of his pay.
So he had demonstrated that he had put himself in hand and in my view it is a very important consideration in sentencing that the person has made good attempts to rehabilitate himself. Having served a sentence for some of the offences committed when he came to be sentenced in a different State, as happened here, the rehabilitation undertaken since that time became a very important consideration in this case: Duncan (1983) 9 A Crim R 354. For that reason as well as the principles enunciated by Murray J and in Mill, I am in favour of the order which is now proposed.