Faure v The State of Western Australia - [2004] WASCA 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: FAURE -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 315

CORAM: MURRAY J
TEMPLEMAN J
MCLURE J

HEARD: 10 DECEMBER 2004

DELIVERED : 10 DECEMBER 2004

FILE NO/S: CCA 149 of 2004

BETWEEN: CHRISTOPHER FAURE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :THE STATE OF WESTERN AUSTRALIA v FAURE

Catchwords:

Appeal against sentence - Receiving - Cash stolen during burglary - Guilty plea - Cooperation - Psychological difficulties for applicant from coercion by others

Legislation:

Nil

Result:

Application for leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Mr R E Cock QC & Mr S M Stocks

Solicitors:

Appellant: D G Price & Co
Respondent: State Director of Public Prosecutions

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

R v Paparone (2000) 112 A Crim R 190

Case(s) also cited:

Nil

MURRAY J: I would invite Templeman J to give his reasons first.
TEMPLEMAN J: This is an application for leave to appeal against the sentence of 2 years' imprisonment imposed on the applicant in the District Court in relation to a charge, to which the applicant pleaded guilty, of receiving a sum of money, the property of Australiawide Cash Carrying Services Pty Ltd trading as Australiawide Cash Carrying Services, which had been stolen, it being alleged that the applicant then well knew the money to have been stolen.
The indictment was presented on 16 August this year and it was on that day that the applicant was arraigned before a District Court Judge and pleaded guilty. Following the usual course, the prosecutor then outlined the relevant facts to the sentencing Judge, and these are set out at page 7 of the application book.
The facts were that on 2 or 3 January 2003 a number of offenders had entered the premises of the complainant and had gained access to a safe with oxyacetylene equipment and had removed a quantity of cash amounting to $1,279,000. At that time the applicant was at his home. He was visited by his brother‑in‑law, who, the Judge was told, was yet to be charged, and was handed a sports bag containing a large quantity of cash in numerous denominations. It was alleged that the amount of cash in the bag was in excess of $100,000.
The applicant took possession of the bag of cash and stored it at his premises. Then on 9 June 2004 at Mandurah the applicant participated in a video record of interview with police officers. He admitted that he had received the bag containing the cash from his brother‑in‑law and he further admitted to banking an amount of some $10,000 into his own personal account. It was alleged that the applicant had been extorted, as it was put, by another male who had been charged with extortion, and the remaining cash in the sports bag was handed over to that person.
Those were the facts as outlined to his Honour. It is, I think, relevant to note that although the indictment alleged that the applicant well knew the money to have been stolen, that was not an element of the offence, and the prosecutor, in stating the facts to the Judge, said nothing about the applicant's state of knowledge. That was made somewhat clearer by the applicant's own counsel in the plea of mitigation. Counsel said, and I am now referring to page 8 of the application book, that the plea of guilty:
"Is on the basis that he says he didn't believe that it was legitimately made and that he believed that it was obtained by

unlawful means. Mr Faure has indicated that he had no awareness of the precise way in which the money came to be in his brother‑in‑law's possession and that he had no knowledge of the burglary in itself, and his plea of guilty is on the basis that he believed that it was obtained by an indictable offence or unlawful means.
When his brother‑in‑law asked him to keep the money Mr Faure says that certainly he had misgivings about doing so, that it was unintentional in terms of becoming involved in these matters but there was some pressure from his father‑in‑law and also from his brother‑in‑law certainly to hold onto this bag of money. Initially it was only ever believed that it would be for a period of a week or so. Unfortunately there were difficulties with his brother‑in‑law then taking the money back."

There are then some further matters referred to, including a reference by counsel to the applicant's brother‑in‑law's involvement in drug trafficking. There is then a reference to what counsel described as an extremely traumatic period following the receipt by the applicant of the money. This involved references to the extortion and various death threats made to the applicant and his family, and threats of a similar kind to his father‑in‑law, all of which caused the applicant and his family very considerable distress to the extent that in the end they went to the police, as was said by the Director of Public Prosecutions this morning, not so much because of a feeling of remorse but in order to obtain some protection. Counsel said, and I quote from page 10:
"They seriously considered suicide for themselves and their children as the only way of escaping what was happening. They ended up going to the police."
There was then further a reference to a psychological report which had been obtained in relation to the applicant and I will come back to that in a moment, but in all the circumstances, including the applicant's psychological difficulties his counsel asked the learned sentencing Judge to consider imposing an intensive supervision order which would allow the applicant to have ongoing psychological assistance and counselling. That, it was submitted, would be of most benefit to the applicant and to the community as well.
The prosecutor responded to that submission. He pointed out that the applicant knew that the money had been obtained from some illegitimate source, or at least had a strong suspicion that that was the case.
The prosecutor then referred to the psychological report and said that the applicant was an individual who was clearly in need of intervention.
I am referring now to page 13 of the application book. The prosecutor continued:
"But for that statement in the psychological report the state would say that a term of immediate imprisonment was the only available option, your Honour, and a lengthy one at that. In the circumstances it would seem that this man has some significant issues that need to be dealt with and the state would question whether or not they would be properly dealt with by a term of immediate imprisonment.
Really, the question is protection of the community in the long term and in that instance the state would take the unusual step in this sentencing exercise to submit that in the current circumstances a lengthy term of an intensive supervision order may be the most appropriate disposition in relation to this offender."
That, of course, was not in any way binding on the learned sentencing Judge but it does give a clear indication of the level of criminality with which the State regarded the applicant, at that stage at least. His Honour did not sentence the applicant on that day because he wished to give the matter further consideration. He adjourned until 20 August when no further submissions were made of any consequence and his Honour then proceeded to sentence.
In so doing his Honour referred briefly to the facts I have already outlined, and I am now referring to pages 17 to 18 of the application book. His Honour said:
"It is suggested in some of the papers that you were going to care for that money on a short-term basis but in the event it is quite clear that you used some of it for your own purposes and the rest was dissipated in circumstances that are not relevant to the sentencing exercise, save to say that those circumstances would have had a salutary impact on you."
It is submitted by Ms Lonsdale for the applicant today that that was an error on the part of his Honour because the circumstances subsequent to the receipt of the money were relevant to the sentencing exercise. I was at first attracted to that submission but in the end I think the Director of Public Prosecutions is right to say that subsequent matters are not relevant to the fact that the applicant, albeit unwillingly, did receive the money. A little later in his sentencing remarks his Honour said:
"The Court of Criminal Appeal has made it clear on a number of occasions that generally speaking offences of the receiving of stolen property, particularly when the property was of considerable value, are such that imprisonment to be immediately served is the appropriate disposition, being the disposition that gives effect to the requirements principally of general deterrence; that is, to deter others in the community from acting in the way that you have done and which would provide what the community would regard as an appropriate punishment for your behaviour."
We have been urged by the Director of Public Prosecutions this morning to emphasise that policy statement, and I have no hesitation in doing so. It is clear that, generally speaking, offences of this kind would be visited with a substantial period of imprisonment. However, the question for this Court is whether the circumstances in this case were such that the imposition of the sentence by his Honour reflected a mis‑exercise of the sentencing discretion.
I quote the next passage in his Honour's sentencing remarks as follows:
"I have no doubt, having regard to the seriousness of this receiving, the amount involved and the fact that the money has now been dissipated that imprisonment should be immediately served is the only appropriate disposition that gives effect to the necessary requirements of the criminal justice system to which I have made reference."
That passage does, I think, with respect to his Honour, reflect an error. As I have already held, accepting the submission of the Director of Public Prosecutions, what happened to the money subsequently or the circumstances in which it was dissipated were not relevant to the sentencing exercise. The fact that the money had been dissipated should not, I think, have been a factor properly taken into account in considering the offence of receiving.
His Honour went on to deal with the personal circumstances of the applicant, including that he, at the age of 35 years, had not been involved in any prior conduct involving dishonesty. Indeed, apart from a driving offence, the applicant had no criminal record of any kind.
His Honour referred also to the detailed pre‑sentence report and psychological report; that is to say, his Honour referred to the fact of those reports although he did not set out in his sentencing remarks any extracts from them. His Honour continued, and I am now on page 19:
"Absent your personal circumstances, it is my view the appropriate head term would otherwise have been in the order of five years' imprisonment. In your particular circumstances, the appropriate head term before the reductions, to which I will make reference, would have been one of four years. I reduce that by 25 per cent to give effect to your plea and cooperation, and then there is the further necessary reduction to accord with the present sentencing requirements."
His Honour then went on to say that the appropriate head sentence, reflecting all those matters, was one of 2 years' imprisonment which was backdated to 16 August 2004.
It is against that sentence that the applicant seeks leave to appeal. He does so on grounds set out on page 3 of the application book, which are in the following terms:
"1.The learned sentencing Judge failed to give any or any sufficient weight to matters put by way of mitigation; specifically
(1)the cooperation provided by the applicant;
(2)the psychiatric and psychological difficulties suffered by the applicant and the need (recognised by the State) for a sentencing disposition which allowed him to address these difficulties, and
(3)the surrounding circumstances in which the offence occurred; namely, the threats and intimidation that the applicant and his family had been subjected to.
2.The learned sentencing Judge erred in giving too much weight to general deterrence which was inappropriate in the light of the factors referred to in (1), (2) and (3) above."
As to ground 1(1), a 25 per cent discount for the cooperation provided by the applicant was, in my view, somewhat low having regard both to the plea and the very considerable cooperation which the applicant gave to the police. There was really very little, if any, evidence against him other than that which he himself gave to the police during the course of the interview.
Grounds 1(2) and (3) are related. The psychological report which his Honour had available to him referred to a number of matters involving or reflecting psychological difficulties which the applicant had suffered.
It is submitted on behalf of the applicant that a psychological disorder is relevant to the sentencing discretion. The submission is made in the outline of submissions:
"Where the presence of a mental illness or psychological disorder has some causal connection or link between the offender and the commission of the crime (in the sense that the result of the deficit was that the offender was not inhibited from committing the offence) the fact of the relevant condition will be mitigatory."
Two authorities are referred to. One of those is Rv Paparone (2000) 112 A Crim R 190. In that case at [51] Murray J said:
"Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then, as I have mentioned, it will be necessary to demonstrate a causal relationship between the offending and the condition. As I put it in CW, 'at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question'. In such a case the mitigation may be found in the conclusion that the offender's moral culpability as opposed to his or her criminal responsibility has been lessened so as to reduce the seriousness of the offending and the need for an enunciatory sentence."
I turn to the psychological report in which a reference is made to the applicant suffering from post‑traumatic stress as a result of an incident in 1994 in which he was again involved with his brother‑in‑law. The psychologist reported that the applicant's brother‑in‑law was said to have been involved in significant deception in a drug deal in 1994 and the aggrieved parties attended on the applicant's house at that time searching for the brother‑in‑law. The psychologist went on, and I quote now from page 3 of his report:
"Unable to locate his brother‑in‑law, they had attacked Mr Faure. He reported that he had initially attempted to placate the individuals but added that in realising that they were intent on assaulting him, he had viewed the consultation as an opportunity to use his many years of martial arts training to deal with the situation.
However, he was readily overcome and had his arm broken and was apparently knocked unconscious. His son who was five years old at the time witnessed the event and was apparently kicked in the head in the context of these individuals trying to get to Mr Faure. He listed a number of psychological and interpersonal difficulties arising from this traumatic incident and these persisted over a number of years, including significant relationship and work-related difficulties."
Those problems persisted until the time when the applicant was asked to take and hold the bag of money for his brother‑in‑law in January 2003.
So we have in this case an offender of previous good character with no convictions. He was caught up in his brother‑in‑law's offending yet again. He was pressurised both by his brother‑in‑law and to a certain extent by his father‑in‑law to take the bag of money and hold it. He did so unwillingly not actually knowing the money was stolen, although believing that it was in some way the process of criminal activity.
In my view he acted in that way to a very considerable extent, if not entirely, because of his psychological difficulties which have themselves resulted from the trauma that he had suffered as a result of his brother‑in‑law's previous activities.
Those matters seem to me, together with the very early plea of guilty and the very extensive cooperation, to be very significantly mitigatory in their effect; to such an extent that I think, with all respect to the learned

sentencing Judge, that his discretion must have been taken to have been mis‑exercised when he imposed a sentence of immediate imprisonment.

This is not a case in which I would simply have come to a different view from the sentencing Judge, had I been in his Honour's position. It is in my view, clearly a case in which there has been a mis‑exercise of the discretion and I would, therefore, grant the applicant leave to appeal, allow the appeal by quashing the sentence of imprisonment and re‑sentencing.
I would do that by now imposing an intensive supervision order on the applicant. That order, having regard to s 69(7) of the Sentencing Act1995 (WA) cannot be backdated. It can only begin today. I would impose an intensive supervision order which contained a programme requirement as determined by a Community Corrections Officer having regard to the various psychological difficulties which the applicant has experienced and from which he continues to suffer.
I would not impose any community service requirement, having regard to the fact that the applicant had now served 5 months in prison and I would set the term of the intensive supervision order at the maximum period which is 24 months, although I would allow the Community Corrections Officer a considerable degree of flexibility in tailoring the supervision and programme requirements so that they might be diminished if the applicant complied satisfactorily with the order.
For those reasons I would dispose of the application in that way.
MURRAY J: I agree entirely if I may say so, not only with his Honour's conclusions but with the reasons by which his Honour has been brought to those conclusions, to which reasons I have nothing to add.
MCLURE J: I also agree with the orders proposed by Templeman J for the reasons that he gives.