Dudzik v The State of Western Australia
[2012] WASCA 195
•8 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DUDZIK -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 195
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 21 AUGUST 2012
DELIVERED : 8 OCTOBER 2012
FILE NO/S: CACR 196 of 2011
BETWEEN: LISA LYNN DUDZIK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 787 of 2011, IND 1283 of 2011
Catchwords:
Criminal law - Appeal against sentence - Whether breach of the first limb of the totality principle - Whether the sentence for attempting to pervert the course of justice manifestly excessive - Turns on own facts
Legislation:
Criminal Code (WA), s 143, s 409
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms A L Forrester
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Billing v The State of Western Australia [2007] WASCA 145
Cummins v The State of Western Australia [2006] WASCA 201
Dillon v The State of Western Australia [2010] WASCA 135
Giglia v The State of Western Australia [2010] WASCA 9
Gilmour v The State of Western Australia [2008] WASCA 42
Goulding v The Queen (1991) 56 A Crim 75
Huynh v The State of Western Australia [2012] WASCA 8
McAuley v The State of Western Australia [2010] WASCA 98
Nguyen v The State of Western Australia [2009] WASCA 8
Penny v The State of Western Australia [2010] WASCA 65
Roffey v The State of Western Australia [2007] WASCA 246
McLURE P: This is an appeal against sentence. On 11 August 2011 the appellant was convicted on her fast‑track pleas of guilty of five counts of fraud, contrary to s 409(1) of the Criminal Code (WA) (Code).
In a sentencing hearing on 11 August 2011, the facts of the offences were stated by the prosecutor and the appellant's counsel outlined areas of dispute in relation to those facts and made an extensive plea in mitigation. Written and oral submissions were made by both parties. The sentencing hearing was adjourned. Further written submissions were filed on behalf of the appellant addressing the disputed facts.
On 11 November 2011 the appellant was convicted on her fast‑track plea of guilty of one count of attempting to pervert the course of justice, contrary to s 143 of the Code. That offence related to false material put to the sentencing judge for and on behalf of the appellant in the course of the plea in mitigation in relation to the fraud offences.
On 25 November 2011 Eaton DCJ sentenced the appellant to a total sentence of 2 years' imprisonment for the five fraud offences and 2 years' imprisonment for the offence of attempting to pervert the course of justice. The sentencing judge ordered total cumulation of those terms, resulting in a total effective sentence of 4 years' imprisonment. She was made eligible for parole.
The appellant relies on two grounds of appeal. First, that the total effective sentence breaches the first limb of the totality principle and second, that the sentence of 2 years' imprisonment for the offence of attempting to pervert the course of justice is manifestly excessive.
The facts of the fraud offences
The appellant, a Canadian national, entered Australia in July 2008 under a 457 working visa. In November 2009 the appellant commenced employment with Woodside Energy Ltd as a contracts manager. The appellant resigned from Woodside in January 2011.
The appellant's main responsibility as a contracts manager was to establish and maintain long term working relationships or partnerships between Woodside and its selected suppliers and vendors. The appellant was assigned to the Pluto Project located near Karratha. In May 2010 the appellant recruited Melanie Stewart to the position of contracts specialist to Woodside's Pluto Project. Prior to working for Woodside, Stewart, a registered psychologist, operated two businesses named The Counselling Clinic and The Corporate Development Clinic (together 'CDC'). Stewart reported directly to the appellant. Unknown to Stewart, the appellant had registered CDC as a vendor contracted to Woodside so that invoices from that business would be received and paid.
The facts of count 1 are that on 1 July 2010, without Stewart's knowledge or consent, the appellant created and submitted to Woodside a false invoice dated 9 June 2010 in the name of CDC for an amount payable of $5,280. The false invoice purported to be for services rendered by Stewart for a period of three days at a daily rate of $1,600 from 17 to 19 May 2010. The appellant recorded on the invoice that the payment was to be deposited into a Bankwest account held in the name of the appellant. On 21 July 2010 Woodside electronically transferred the invoiced amount into the appellant's Bankwest account. The appellant was sentenced to 12 months' imprisonment on count 1.
As to count 2, without Stewart's knowledge or consent, the appellant created and submitted to Woodside a false invoice dated 12 July 2010 in the name of CDC for an amount payable of $19,360. The false invoice purported to be for services rendered by Stewart for a period of five days from 28 June 2010 to 2 July 2010 and a further five days from 6 to 10 July 2010. The appellant recorded on the invoice that the payment was to be deposited into the appellant's Bankwest account. Woodside electronically transferred $19,360 into the appellant's Bankwest account. The appellant was sentenced to 18 months' imprisonment on count 2.
Count 3 was that, without Stewart's consent, the appellant created and submitted to Woodside a false invoice dated 18 August 2010 in the name of CDC for an amount payable of $84,480. The false invoice purported to be for services rendered by Stewart. On this occasion the appellant recorded on the invoice that the payment was to be paid into a Bankwest account held in the name of CDC. That amount was electronically transferred to the account. On or about 1 September 2010 the appellant approached Stewart and informed her that the appellant had been subcontracting to Woodside outside her normal duties and had included her subcontracting fees of $42,000 in the $84,480 payment Stewart had received from Woodside. The appellant instructed Stewart to retain 50% of the subcontracting fee to cover any tax liability and a further 50% for assisting the appellant, leaving $10,500. On the appellant's instruction the amount of $10,500 was electronically transferred into a National Bank account in the name of the appellant. The appellant was sentenced to a term of imprisonment of 2 years on count 3.
Count 4 was that, without Stewart's consent, on 2 August 2010 the appellant created and submitted to Woodside an undated false invoice in the name of CDC for an amount payable of $54,560. The false invoice purported to be for services rendered by Stewart. The appellant recorded on the false invoice that payment was to be made into CDC's Bankwest account. The appellant again approached Stewart informing her that the appellant's subcontracting fees of $25,600 were included in the $54,560 payment Stewart had received from Woodside. After applying the same reductions (for tax and assistance by Stewart), an amount of $6,400 was left. Stewart transferred $6,000 into the appellant's National Bank account. The appellant was sentenced to 2 years' imprisonment on count 4.
Count 5 was that, without Stewart's consent, on 12 September 2010 the appellant created and submitted to Woodside a false invoice dated 1 September 2010 in the name of CDC for an amount of $77,440. The false invoice purported to be for services rendered by Stewart. Woodside transferred the amount into CDC's Bankwest account. Stewart became suspicious of the appellant's activities and declined to transfer any further moneys into the appellant's account, notifying Woodside of her suspicions. The appellant was sentenced to 2 years' imprisonment on count 5.
The facts of the attempt offence
For the purpose of the sentencing hearing on 11 August 2011, the appellant's counsel provided to the sentencing judge, inter alia, a letter dated 8 July 2011 purporting to be from the appellant's son, an undated letter purporting to be from the appellant's daughter, a letter dated 13 May 2011 purporting to be from a friend of the family who was a minor, Brock Kalogirou and a letter dated 24 June 2011 from Sue Cosquer. The documents purportedly from the appellant's daughter and family friend were in fact false, having been prepared and signed by the appellant without the permission of those individuals.
In the course of his oral submissions on 11 August 2011, counsel for the appellant (who was not counsel in this appeal) informed the court that the appellant's natural parents were killed in a motor vehicle accident when she was about 12 months old and that her two children were dependent upon her. Those statements were false. Sue Cosquer was in fact the appellant's natural mother.
At the hearing on 11 August the appellant's counsel also referred the sentencing judge to a letter dated 21 July 2011 from Mr Tickner of Rio Tinto. The letter stated that the appellant's attendance in the United States was crucial to the success of a project involving the testing of a new prototype for underground mining (11 August 2011, ts 77 ‑ 78). Counsel told the court, in accordance with instructions, that the appellant was a permanent employee of Rio Tinto and that Rio Tinto was aware of the criminal proceedings before the court relating to the fraud matters. He said:
The position is simply this, that Rio Tinto will wait and see the outcome of these proceedings. They're aware that she's made ‑ well, certainly her supervisor's aware, that she's in a position where she's pleaded guilty and has accepted responsibility for her offending behaviour, and despite that, the position is that, I understand, that they will retain her in her current position (11 August 2011, ts 68).
The letter of 21 July 2011 from Mr Tickner was relied on by the appellant for an application made on 11 August 2011 to vary the terms of her bail to enable her to attend to her duties with Rio Tinto in the United States. The application was refused.
In a statement dated 7 September 2011 Mr Tickner said:
I have been [the appellant's] immediate manager since the end of May 2011.
[The appellant] made me aware some months ago that she had some issues regarding the approval of fraudulent invoices whilst she was employed with Woodside in 2010.
[The appellant] told me that there had been no wrongdoing on her behalf and the issue had been resolved.
I had not been made aware at any time that any criminal charges had been laid against [the appellant].
I was not aware that any criminal court proceedings were in progress in relation to [the appellant's] employment with Woodside or in relation to any other matter that [the appellant] may have been involved in.
I can categorically confirm that I never offered [the appellant] any support regarding continued employment at the conclusion of any legal proceedings against her. To the best of my knowledge as at the date I sign this statement, no other manager within Rio Tinto has ever offered such support.
I can confirm that I authorised a letter dated 21st July 2011.
The letter related to planned international travel which [the appellant] was required to undertake as part of her duties for Rio Tinto.
[The appellant] informed me that she required the letter for visa compliance.
[The appellant] indicated to me that previous managers had signed similar letters.
I did not know that [the appellant] was going to submit the letter to a criminal court for her own purposes.
[The appellant] had previously informed me that she had been undergoing treatment for cancer.
As a result of her purported illness, [the appellant] had been allowed time off so she could receive her required medical treatment.
The sentencing judge made the following unchallenged findings:
I have come to the conclusion, and am satisfied beyond reasonable doubt, that you have not been, in respect of these matters, a truthful person at all. I am satisfied beyond reasonable doubt that you are given to deceit or manipulation to achieve desired outcomes or resolve personal problems (25 November 2011, ts 9).
I have little doubt that had you been successful in your bail application and been allowed to leave Australia, you would not have returned, thus avoiding the consequences of your offending in terms of the sentencing process for a lengthy period, if not completely (25 November 2011, ts 10).
Antecedents
The appellant was aged 41 at the time of the offences. She had no prior record of offending and had repaid to Woodside the sum of $41,540, being the amount of the benefit she actually received at Woodside's expense. The total amount defrauded by the appellant from Woodside was $241,120.
At the sentencing hearing on 25 November 2011, the appellant relied upon a report dated 25 October 2011 from a psychiatrist, Dr SD Febbo. His report makes no reference to the offence of attempting to pervert the course of justice. Moreover, the sentencing judge found that the appellant's untruthfulness permeated a good deal of the information before him which could not be independently verified, and that included Dr Febbo's report. Little weight was given to it (25 November 2011, ts 18).
Ground 2 - manifest excess
The appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends on establishing an implied error from the type or length of sentence imposed. When considering whether an implied error has been made, regard is had to the maximum penalty, the standards of sentencing customarily imposed for the offence, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender. The appellant claims the sentence of 2 years' imprisonment for attempting to pervert the course of justice is too long.
The maximum penalty for the offence is 7 years' imprisonment. At the time of its commission, the appellant had been convicted of the fraud offences. However, she entered a fast‑track plea of guilty.
There is no tariff for the offence of attempting to pervert the course of justice because of the broad spectrum of behaviour that can constitute the offence. However, it is an offence which is ordinarily punished by an immediate term of imprisonment: Dillon v The State of Western Australia [2010] WASCA 135 [29].
Where the circumstances of the offence involve deceiving a court in the exercise of its judicial function, that increases the gravity of the offending: Goulding v The Queen (1991) 56 A Crim 75, 78 ‑ 79. The cases of Penny v The State of Western Australia [2010] WASCA 65 and McAuley v The State of Western Australia [2010] WASCA 98, on which the appellant relies, are not comparable, involving as they do false statements made to police. The appellant's conduct strikes at the very heart of the administration of criminal justice. Further, having regard to the nature, extent and purpose of the appellant's deceit, it is a serious example of its type involving as it clearly did, premeditation, planning and persistence.
In all the circumstances, it cannot be said that the sentence of 2 years' imprisonment is manifestly excessive. Indeed, it is toward the lower end of the sound discretionary range. I would dismiss ground 2.
Ground 1- totality
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
The practical effect of the totality principle is ordinarily to arrive at a total sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences.
There is often a correlation between the severity, or otherwise, of the individual sentences and the orders for concurrence or cumulation: Giglia v The State of Western Australia [2010] WASCA 9 [40]. Often it is clear from the sentencing judge's reasons that the selection of the sentence for the individual offences is informed by whether he or she intends to order that the sentences be served concurrently or cumulatively (in whole or in part): Nguyen v The State of Western Australia [2009] WASCA 8 [27]; Huynh v The State of Western Australia [2012] WASCA 8 [19].
Recognising the correlation, the appellant contended that the total sentence of 2 years' imprisonment for the five fraud offences was at the upper end of the sound sentencing range. I am not satisfied that is correct. The appellant used and abused her relatively senior position at Woodside to carry out the frauds. The conduct involved a serious breach of trust. She involved a third party, Stewart, in the offences who was then herself accused of wrongdoing. The offending only came to an end when the third party informed Woodside of the appellant's conduct.
The appellant's complaint is that the sentencing judge ordered total cumulation. As a matter of principle, the sentence for an offence of attempting to pervert the course of justice should ordinarily be made wholly cumulative with the sentence for the offence to which the attempt was directed. Offenders who are considering engaging in further criminal conduct directed at avoiding a conviction or perverting the sentencing process should understand that the cumulation of sentences will ordinarily be the consequence. See Dillon, Gilmour v The State of Western Australia [2008] WASCA 42, Billing v The State of Western Australia [2007] WASCA 145, Billing v The State of Western Australia [No 2] [2008] WASCA 11 [35], Cummins v The State of Western Australia [2006] WASCA 201.
The aggregate term of 4 years is a proper measure of the overall criminality involved in the appellant's offending. Ground 1 should be dismissed.
Conclusion
After the hearing of the appeal, the appellant wrote a lengthy letter to the court containing further submissions on the facts and the law. Leave to reopen was not sought, and if sought, would not be granted. The appeal should be dismissed.
BUSS JA: I agree with McLure P.
MAZZA JA: I agree for the reasons given by McLure P that this appeal against sentence must be dismissed. I only wish to add some comments of my own with respect to ground 2.
The tendering of character references and other material such as expert reports in mitigation of penalty is very common in sentencing proceedings. Implicit in the tender is the assumption that the material is genuine. On this assumption, the usual practice in this State is that the author of the reference or report is not required to attend court to authenticate what has been written.
The tendering of false character references and other material poses serious potential threats to the administration of justice. There is, in the particular case, a real prospect that a sentencer will be misled and impose a sentence that will be unjust. Further, there is the potential to undermine the integrity of sentencing proceedings generally. Finally, there is the prospect that character witnesses and experts might be required to attend court to attest to what they have written causing needless inconvenience and hampering the ability of courts to dispose of sentencing cases in a timely way.
With these factors in mind a weighty consideration in this case was the need to deter others from offending in a similar way in the future.
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