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GEORGE -v- BIRTWISTLE [2003] WASCA 75

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 75
Case No:	SJA:1114/2002	Heard:	17 & 28 MARCH 2003
Coram:	SCOTT J	Delivered:	4/04/03
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	RICHARDSON WINFRED BENO GEORGE GORDON BIRTWISTLE
Catchwords:	Criminal Law Appeal Sentencing Fraud utilising credit vouchers and purchased keycards and PIN numbers Two groups of multiple counts Second group of charges committed whilst on bail for first Sentencing factors Disparity of sentence with co-accused Whether substantial miscarriage of justice Personal and general deterrance Fraud involved large amounts of money Whether appellable error No substantial miscarriage of justice
Legislation:	Justices Act 1902, s 199(1)(b)
Case References:	Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995 Hegney v Cheeseman and Bailey, unreported; SCt of WA; Library No 940466; 1 September 1994 Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 Postiglione v The Queen (1997) 189 CLR 295 R v Gordon [2000] WASCA 401 Brewer v Bayens [2002] WASCA 37 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994 Dixon v Scott [2002] WASCA 280 Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 Nevermann (1989) 43 A Crim R 347 Parsons v The Queen (1993) 66 A Crim R 550 Pearce v The Queen (1998) 194 CLR 610; (1998) HCA 57 R v GP (1997) 18 WAR 196 R v Ireland [1971-1972] 126 CLR 321 R v Ward (1999) 109 A Crim R 159 R v White [2002] WASCA 112 Shaw v The Queen (1989) 39 A Crim R 343 Smoker v The Queen [2001] WASCA 388 Veen v The Queen [No 2] (1988) 164 CLR 465 Woods v The Queen (1994) 14 WAR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GEORGE -v- BIRTWISTLE [2003] WASCA 75 CORAM : SCOTT J HEARD : 17 & 28 MARCH 2003 DELIVERED : 4 APRIL 2003 FILE NO/S : SJA 1114 of 2002 BETWEEN : RICHARDSON WINFRED BENO GEORGE

Appellant

AND

GORDON BIRTWISTLE

Respondent

Catchwords:

Criminal Law - Appeal - Sentencing - Fraud utilising credit vouchers and purchased keycards and PIN numbers - Two groups of multiple counts - Second group of charges committed whilst on bail for first - Sentencing factors - Disparity of sentence with co-accused - Whether substantial miscarriage of justice - Personal and general deterrance - Fraud involved large amounts of money - Whether appellable error - No substantial miscarriage of justice

Legislation:

Justices Act 1902, s 199(1)(b)

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Ms K S Hitchins 17 March 2003

Ms E A Benwell 28 March 2003

Solicitors:

Appellant : Verschuer Edward

Respondent : State Director of Public Prosecutions

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

Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995
Hegney v Cheeseman and Bailey, unreported; SCt of WA; Library No 940466; 1 September 1994
Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995
Lowndes v The Queen (1999) 195 CLR 665
Pop v The Queen [2000] WASCA 283
Postiglione v The Queen (1997) 189 CLR 295
R v Gordon [2000] WASCA 401

Case(s) also cited:

Brewer v Bayens [2002] WASCA 37
Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994
Dixon v Scott [2002] WASCA 280
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Nevermann (1989) 43 A Crim R 347
Parsons v The Queen (1993) 66 A Crim R 550

(Page 3)

Pearce v The Queen (1998) 194 CLR 610; (1998) HCA 57
R v GP (1997) 18 WAR 196
R v Ireland [1971-1972] 126 CLR 321
R v Ward (1999) 109 A Crim R 159
R v White [2002] WASCA 112
Shaw v The Queen (1989) 39 A Crim R 343
Smoker v The Queen [2001] WASCA 388
Veen v The Queen [No 2] (1988) 164 CLR 465
Woods v The Queen (1994) 14 WAR 341

(Page 4)

1 SCOTT J: On 17 October 2002 Heenan J granted the appellant leave to appeal.

2 It seems from the order made by Heenan J that leave was granted in relation to one complaint only and in relation to both conviction and sentence. However, the way this matter has been argued and in view of the amended grounds of appeal, the matter has been treated as an appeal against sentence in relation to all of the complaints. If leave to appeal needs to be granted in order for the matter to be dealt with in that way then I would grant leave.

3 These matters have a long and complex history. The appellant was first charged on 25 June 2002. At that stage the appellant asked detectives if the charges could be delayed for a period of 2 weeks so that he could attend to some urgent matters. For that reason he was initially charged with only one charge (complaint 29961/02) set out later in these reasons.

4 The appellant was later charged with a further 33 counts of fraud. Those charges which excluded complaint 29961/02 will be referred to as the first group of charges. Charge 29961/02 was part of a second group of charges the balance of which the appellant was charged on 30 August 2002. The second group of charges comprising some 33 counts came before the Court on 7 August 2002. It was alleged that those offences were committed whilst the appellant was on bail for the first group of charges. As I have said, complaint 29961 was part of the second group of charges although it had been preferred at an earlier time and was the first matter with which the appellant was charged.

5 The facts of the matter as revealed to the learned Magistrate involved a complex and sophisticated fraud. The fraud was perpetrated in this way: the appellant and his accomplice obtained a series of valueless merchant vouchers. They then purchased keycards from persons who owned them for the purpose of accessing various bank accounts. In addition to purchasing the keycards, the appellant and his accomplice obtained the PIN number in order to access the account. The appellant and his accomplice, using the purchased keycards, prepared transaction vouchers as if the keycards had been used for the purchase of goods. The false merchant vouchers were then deposited into various bank accounts with the ANZ, Commonwealth and BankWest banks in the metropolitan area. The deposits were made on a Friday so that the respective banks would not realise that the merchant vouchers were valueless until the following Monday. The way in which the vouchers were processed by the banks was that the vouchers were credited automatically to the account as

(Page 5)

cleared funds once they were deposited. With the accounts thus inflated, the appellant and his accomplice were able to withdraw money from automatic teller machines over the weekend before each of the banks became aware of the fraud on the following Monday. As soon as the banks became aware that the vouchers were valueless they were rejected, but of course by that time the funds had been withdrawn from the accounts. In all, the prosecutor said that some $59,000 in cash had been obtained by these frauds and the money had disappeared.

6 At the time of these events or at least during part of it the appellant was the proprietor of a restaurant and on occasions the merchant vouchers and the purchased keycards were processed through the restaurant.

7 By arrangement between the prosecution and the appellant, when the first group of charges came before the Court, the appellant pleaded guilty to 15 of the 33 charges plus other charges, being a receiving charge and an uttering charge. The remainder of the charges were dismissed.

8 The appellant pleaded guilty to 15 charges in the first group which in total involved frauds of approximately $30,000 in value. A compensation order was made against him in the sum of $15,000 being half that amount.

9 In relation to the second group of charges it was alleged that they nearly all occurred whilst the appellant was on bail for the first group. In that group there were a further 19 charges to which the appellant pleaded guilty including, as I have already said, charge number 29961/02, the original charge upon which the appellant was arrested. Other charges in the second group were dealt with by the prosecution offering no evidence. They were consequently dismissed.

10 The second group of charges essentially occurred in the same way in which the first group occurred, that is by the use of merchant vouchers and purchased keycards in the manner that I have already described.

11 In discussions with counsel, his Worship made reference to the prospect of having the matters remanded to the District Court for sentence in view of the number of charges and the seriousness of them. Ultimately however he decided to deal with them summarily.

12 It should also be mentioned that the reason why all charges were not grouped together was because the appellant had used a different name in relation to the first group of charges.

(Page 6)

13 In sentencing the appellant his Worship referred to the task as being a difficult one. In relation to the receiving charge, the learned Magistrate imposed a fine of $500 with $38 costs.

14 In relation to the first group of charges, as I have said his Worship made a compensation order in the sum of $15,000 in favour of the Commonwealth Bank.

15 His Worship had obtained a pre-sentence report and referred to the contents of that report including the appellant's marital background, personal circumstances and the fact that he had two sons. His Worship also referred to the appellant's de facto relationship with the accomplice with whom the first group of offences were committed.

16 His Worship also gave the appellant credit for early pleas of guilty on the basis that once the disputed charges had been withdrawn the appellant pleaded guilty to the balance at the earliest possible time.

17 In relation to the first group of charges his Worship referred to the fact that in amount the charges varied between $900 and $3500. His Worship referred to the sentencing options available to him and to the way in which the crimes were committed. His Worship said:

"They are clearly organised, calculated crimes which are not lightly undertaken. They require a criminal mentality to undertake such matters, and indeed, given that many of the matters are multiple, even on the one day, one can see that this is not a one off, but a concerted and organised approach to obtaining money by way of false pretence."

18 His Worship referred to them as being a "string" of offences. His Worship referred to authority on the question of sentencing in similar situations and, in particular, to a number of multiple fraud decisions where comparative sentences were imposed and confirmed on appeal: Hegney v Cheeseman and Bailey, unreported; SCt of WA; Library No 940466; 1 September 1994; Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995, involving 21 offences of fraud and a sentence of 3 years' imprisonment, and Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995, involving 15 counts of receiving property with an estimated value of $35,000.

19 His Worship referred to the antecedents of the appellant and the various sentencing factors that he needed to consider. He said:

(Page 7)

"It's my assessment that the man has probably been living on his wits for some time, and has become manipulative, and has shown little remorse in regard to the commission of such a large number of offences."

20 In sentencing, his Worship said that but for the pleas of guilty at an early stage he would have imposed 18 months' imprisonment on each of the matters, but taking into account the plea of guilty he imposed a term of 12 months' imprisonment on each of the first series of offences.

21 In relation to the second group of offences, his Worship also imposed a penalty of 12 months' imprisonment on each and specifically referred to the fact that those offences were committed whilst the appellant was on bail which, as he said, should attract a more severe penalty. His Worship referred to the Full Court decision in Pop v The Queen [2000] WASCA 283, delivered 29 September 2000, in relation to offences committed by a person whilst on bail for another group of offences.

22 Because of the number of charges in each group, his Worship was obliged to and did apply the "totality principle". That principle was explained by McHugh in Postiglione v The Queen (1997) 189 CLR 295 at 307 – 308 as follows:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved (see

Mill v The Queen

(1988) 166 CLR 59 at 63). In

Kelly v The Queen

(1992) 33 FCR 536, at 541, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in

R v Rossi

, (unreported; CCA SA; 20 April 1988), 'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect,' "

23 In this case, his Worship was called upon to apply the totality principle because to have aggregated the penalties in relation to each count in each group, together with the sentence on matter 29961/02, would have resulted in a sentence which was greatly disproportionate to the total criminality involved.
(Page 8)

24 His Worship referred to what he called the "one off offence" committed on 8 February which it is conceded was a reference to charge number 29961/02. In that respect his Worship said:

"There is then the one off offence which is committed on 8 February, $2350. I impose, as I have said, 12 months' imprisonment on that, but that 12 months is to be served cumulatively on the other sentences which makes 2 years and then for the balance of charges in this later group which were only admitted today, 12 months' imprisonment imposed on each."

25 His Worship therefore imposed a total term of 3 years' imprisonment and ordered that the appellant be eligible for parole. In addition, His Worship backdated the sentence to 7 August 2002 so as to give the appellant credit for the time he had spent in custody.

26 The grounds of appeal are:

1. Sentence structure

2. Totality principle

3. Confusion concerning the nature of offences committed

4. Parity in sentencing

5. Accumulation of errors

27 Essentially, the appellant's contentions come down to two matters, namely:

1. That the 12 months' imprisonment imposed by the learned Magistrate in relation to complaint 29961/02 should have been ordered to be served concurrently with the sentences imposed on the other charges in the second group. The reason for that is that it was contended this charge was exactly the same in terms of the fraud committed as the other charges in the second group. It fell within the same time frame as that group of charges.

2. There was a disparity in sentence between the sentence imposed upon the appellant and the sentence imposed upon the co-accused.

(Page 9)

28 In relation to ground 1, counsel for the appellant is correct in saying that charge 29961/02 was essentially the same as the other matters in the second group of charges. In terms of time, that charge came within the same time frame. That complaint alleged:

"That on 8 February 2002 at Cannington the appellant with intent to defraud, by fraudulent means, namely by falsely pretending to an employee of the Commonwealth Bank of Australia Ltd trading as Commonwealth Bank that a merchant summary voucher number 2282356 containing sales voucher numbers 5545385, 5545386 and 5545387, drawn on account styled Leanne McKain trading as McKain Sales Perth for the amount of $2350 here and then produced was a good and valid security for that amount, obtained $2350 in cash from the said Commonwealth Bank of Australia Ltd trading as Commonwealth Bank contrary to s 409(1)(a) of the

Criminal Code

."

29 It is not in issue that complaint 29961/02 was in its format the same as the other charges in the second group and, as I have said, it is not disputed that it fell within the same date frame. It is therefore contended that the sentence for that offence should have been ordered to be served concurrently with the other offences in that group.

30 More importantly in my view, however, the appellant has also to establish that not only have the grounds of appeal been made out, but that there has been a substantial miscarriage of justice. Section 199(1) of the Justices Act 1902 provides:

"Upon the hearing of an appeal, the Court may do one or more of the following … (b) dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred."

31 In relation to ground 2 the appellant contended that the sentence imposed upon him was disproportionately high when considered against the sentence imposed upon the co-offender. In that respect, the co-offender was considerably younger than the appellant. She was born on 4 October 1979 and he on 14 June 1957. The appellant was therefore over 20 years older than his accomplice. The accomplice was a first offender who had no prior record and expressed considerable contrition for the conduct in which she was involved. In addition, as I have already said,

(Page 10)

the accomplice was only involved in the first group of charges and not the second. There was a great deal in the pre-sentence report in favour of the accomplice which it is not necessary to repeat in these reasons. The writer of the report considered the accomplice as suitable for a suspended term of imprisonment which was the disposition ultimately reached in relation to her.

32 His Worship expressly considered the option of a suspended term of imprisonment for the appellant which he rejected as an appropriate sentencing option. His Worship said, "In my view, this is a case where given the number of offences, I take the view that no other penalty but imprisonment is called for by way of personal and general deterrent, together with simply the size and money involved and the volume of offences."

33 His Worship also said, "There is very little in the way of credible mitigation or explanation".

34 In my view, in reaching that conclusion his Honour was entirely justified.

35 In this case in my view the appellant has established that the learned Magistrate erred in regarding complaint 29961 as being a separate and distinct matter. That however is not the end of the matter. The question is whether the sentence of 3 years' imprisonment with a parole order in all the circumstances of the case was such as to constitute an appealable error in the sentencing process. In Lowndes v The Queen (1999) 195 CLR 665, at 671 – 672, the High Court said:

"The principles according to which an appellate court may interfere with … a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in

R v Allpass

(1993) 72 A Crim R 561 and

R v Clarke

[1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic (

House v The King

(1936) 55 CLR 499). The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

(Page 11)

George v Birtwistle

[2003] WASCA 75

4 APRIL 2003

GEORGE -v- BIRTWISTLE [2003] WASCA 75