Heaney v The State of Western Australia [No 2]
[2013] WASCA 238
•15 OCTOBER 2013
HEANEY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 238 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:63/2013 | 2 AUGUST 2013 | |
| Coram: | PULLIN JA NEWNES JA MAZZA JA | 15/10/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DENIS FRANCIS HEANEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Appeal against sentence Taxation accountant Two counts of stealing as a servant and four counts of stealing Total of $77,000 Plea of guilty Two years' imprisonment |
Legislation: | Nil |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Collins v The State of Western Australia [2007] WASCA 108 Dimanopoulos v The State of Western Australia [2011] WASCA 62 House v The King [1936] HCA 40; (1936) 55 CLR 499 Roffey v The State of Western Australia [2007] WASCA 246 Smallbone v State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57 Smith v The Queen [2003] WASCA 235 Wilson v The State of Western Australia [2010] WASCA 82 Zande v The State of Western Australia [2012] WASCA 100 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEANEY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 238 CORAM : PULLIN JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 1424 of 2012
Catchwords:
Criminal law - Sentencing - Appeal against sentence - Taxation accountant - Two counts of stealing as a servant and four counts of stealing - Total of $77,000 - Plea of guilty - Two years' imprisonment
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Ms S Linton
Solicitors:
Appellant : Abigail Rogers Barristers & Solicitors Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Collins v The State of Western Australia [2007] WASCA 108
Dimanopoulos v The State of Western Australia [2011] WASCA 62
House v The King [1936] HCA 40; (1936) 55 CLR 499
Roffey v The State of Western Australia [2007] WASCA 246
Smallbone v State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57
Smith v The Queen [2003] WASCA 235
Wilson v The State of Western Australia [2010] WASCA 82
Zande v The State of Western Australia [2012] WASCA 100
1 PULLIN JA: I agree with Newnes JA.
2 NEWNES JA: On 8 March 2013, the appellant was convicted in the District Court on a fast track plea of guilty to two counts of stealing as a servant, contrary to s 378 of the Criminal Code. He also pleaded guilty to four further charges of stealing on a notice under s 32 of the Sentencing Act 1995 (WA). He was sentenced by Scott DCJ to a total effective term of 2 years' immediate imprisonment, with eligibility for parole.
3 On 29 April 2013, the appellant was granted leave to appeal on the first of his grounds of appeal and the other two grounds of appeal were referred to the hearing of the appeal.
Background
Count 1
4 At the time of the offending the appellant was a self-employed taxation accountant. He had been engaged for several years by his brother, Leo Heaney, the complainant, as the taxation accountant for his business, Leo Heaney Pty Ltd. On 28 December 2010, the appellant advised the complainant that the company owed the Australian Taxation Office (ATO) the sum of $18,623 by way of goods and services tax. The complainant was anxious to pay the tax and the appellant asked him to write a cheque for that amount made payable to the appellant so the appellant could ensure the funds were paid to the correct department within the ATO. The complainant did so. The appellant did not pay the funds to the ATO but used them for his own purposes. That only came to light several months later when the complainant was informed by the ATO that the tax had not been paid.
Count 2
5 On 1 January 2011, the appellant advised the complainant that he had calculated that company tax in the amount of $39,710 was payable by Leo Heaney Pty Ltd. Again, the complainant was anxious to pay the tax and the appellant asked for a cheque in that amount made payable to the appellant, on the basis that he would ensure the funds were directed to the correct department within the ATO. The appellant did not pay the funds to the ATO but used them for his own purposes, a matter which, again, only came to light several months later when the complainant was informed by the ATO that the tax had not been paid.
Section 32 notice offences
6 These offences related to four other complainants, each of whom had instructed the appellant to prepare their individual tax returns for 2011. The relevant circumstances of the offending were the same. In each case, the complainant verbally agreed with the appellant that the complainant's tax refund would be paid into the appellant's bank account and the appellant would then deduct payment for the preparation of the tax return and forward the balance by electronic funds transfer to the complainant's bank account. After making numerous requests for payment of the refund, the complainant went to the ATO and was told that the refund had been paid to the appellant. When questioned by police, the appellant admitted that he had used the refunds for his own purposes. The offending, which involved a total amount of some $19,000, occurred between 30 June 2011 and 13 October 2011.
The sentencing remarks
7 The sentencing judge noted that the offending had occurred at a time when the appellant was under financial stress as a result of having to make greater than expected loan repayments on an investment he had entered into with his son. However, while the stolen money had not been used for lifestyle purposes, it had been taken for financial gain in circumstances where there were other avenues open to the appellant to raise funds.
8 His Honour observed that while the appellant had made, rather belatedly, full restitution to the complainants of the amounts stolen, the appellant's brother was likely to have incurred significant fines and penalties imposed by the ATO as a result of the late payment of the tax and that he had suffered financial stress as a result of the offending.
9 Turning to the appellant's personal circumstances, his Honour noted that the appellant was 68 years of age and had always been in regular employment. He had started his own accounting business, involving mostly the preparation of tax returns, when he was about 50 years old. He had no criminal record. He had had to sell his house to repay a loan he had obtained to effect restitution to the complainants. He had since ceased practising as an accountant and his daughter had taken over his financial affairs.
10 His Honour noted that the appellant had pleaded guilty on the fast track system and that he was remorseful. His Honour allowed a discount of 25% on the sentence he would otherwise have imposed, pursuant to s 9AA(2) of the Sentencing Act.
11 The appellant was sentenced as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14 The total effective sentence was therefore 2 years' imprisonment. The appellant was made eligible for parole.
The grounds of appeal
15 The appellant relied on the following grounds of appeal:
1. The sentencing judge infringed the first limb of the totality principle by imposing an aggregate sentence that was disproportionate to the overall criminality involved in all of the offending;
2. The sentencing judge erred by imposing on all counts terms of immediate imprisonment which were manifestly excessive;
3. The sentence judge erred by concluding it would not be appropriate to suspend imprisonment in all the circumstances.
The disposition of the appeal
16 The third ground of appeal was abandoned on the hearing of the appeal and it is therefore unnecessary to deal with it.
Ground 1
17 The relevant principles are well known and were not in issue on the appeal.
18 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of 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] - [26].
19 This court cannot, however, intervene merely because it would have exercised the sentencing discretion differently to the sentencing judge. It can only do so if a material error on the part of the sentencing judge is shown. A contention that a sentencing judge infringed the totality principle involves an allegation that error is to be inferred from the result. In such a case, it is necessary to show that the sentence was so unreasonable or unjust that the appellate court is compelled to the conclusion that, although it is not possible to discover the exact nature of the error, a substantial wrong has nevertheless occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].
20 Whether or not a sentence infringes the totality principle must, of course, depend upon the particular facts and circumstances of the case. No two cases are the same and there will often be significant differences in the circumstances of the offending and the offenders. However, while bearing in mind the limitations inherent in doing so, it is necessary to have regard to sentences imposed in other cases for offending of a similar nature in an endeavour to achieve broad consistency in sentencing.
21 In relation to the offence of stealing as a servant, the decisions of this Court have made it clear that the offence is serious, involving as it does the abuse of a position of trust. In such a case, significant weight is given to the need for general deterrence with an associated reduction in the weight given to personal antecedents such as prior good character: Dimanopoulosv The State of Western Australia [2011] WASCA 62[19]. Indeed, it is frequently the case in offences of this nature that the offender has good antecedents, without which they are unlikely to have been placed in a position of trust in the first place.
22 While the amount stolen is a relevant factor for sentencing purposes, it is not determinative, or even necessarily the most important consideration. Other relevant factors include the number of offences, the frequency of the offending and the period over which it occurred, the nature and extent of the offending on the victims, and the offender's knowledge of the financial impact it would have: Dimanopoulos [20]; Smallbone v State of Western Australia[2008] WASCA 167; (2008) 187 A Crim R 57 [30].
23 In this case, the offending involved six offences and in total spanned a period of some 10 months, although the indictable offences occurred quite close together. While the amount concerned in the latter offending was not as large as in some other cases it was still a considerable sum and the sentencing judge found that it caused financial strain for the appellant's brother. In view of the appellant's position, he could hardly have been unaware of the effect the offending was likely to have on his brother. The familial relationship is an added aspect of the appellant's breach of trust. The s 32 notice offences, while not of the same gravity, also involved a breach of trust on the part of the appellant. It is in the appellant's favour that he made restitution to the complainants, although it appears that that was done somewhat belatedly, in the brother's case after civil proceedings had been taken to recover it.
24 In support of the contention that the total effective sentence in this case infringed the totality principle, counsel for the appellant referred by way of comparison, in particular, to Zande v The State of Western Australia [2012] WASCA 100; Dimanopoulos; Collins v The State of Western Australia [2007] WASCA 108; and Smithv The Queen [2003] WASCA 235. I do not consider that those cases assist the appellant. On the contrary, properly considered they have the opposite effect.
25 In Zande, the offender, a 45 year old accountant, pleaded guilty to 7 counts of stealing as a servant. While employed as a financial controller in a small business he stole a total amount of $124,633.67 over a period of 13 to 14 months to fund his own share acquisitions. He had no prior criminal record. His motive for the offending was primarily financial but was also due in part to an element of compulsive behaviour based on an undiagnosed depressive illness. The offender voluntarily admitted the offending to the complainant and promptly repaid the money by selling the shares and extending the mortgage on his house. He made full admissions to police and assisted their enquiries. A total effective sentence of 3 years and 4 months' imprisonment was set aside on appeal and a sentence of 2 years' imprisonment imposed.
26 In Diamonopoulos, the offender was convicted after fast-track pleas of guilty of 175 counts of stealing as a servant. The appellant was employed as a bookkeeper for a small family run business and stole $290,711.58 over a period of almost 7 years. The thefts occurred on 2 or sometimes 3 occasions each month and the appellant covered them up by making false entries in the financial records. The appellant was 70 years old at the time of sentencing and suffered from anxiety and depression. She had no prior criminal record. An application for leave to appeal against a total effective sentence of 2 years' imprisonment was dismissed.
27 In Collins, the offender was employed as a strata manager by a company carrying on business as a real estate agent. He pleaded guilty to 75 counts of stealing as a servant, involving a total amount of $56,507. The offender took the money over a period of some 10 months by drawing and signing 75 unauthorised cheques from a trust account in the name of his employer. He was 48 at the time of sentencing, was on antidepressant medication and had suffered a heart attack four months earlier. He had no relevant prior criminal record. An appeal against a total effective sentence of 2 years and 6 months' imprisonment was allowed and a sentence of 1 year 8 months' imprisonment imposed.
28 In Smith,the offender was employed as a branch manager on Christmas Island by Westpac. She pleaded guilty to 22 offences of stealing as a servant, involving a total sum of $667,750 over a period of 16 months, $440,534 of which was not recovered. The appellant was 36 years old, married and pregnant at the time of sentencing. An appeal against a total effective sentence of 2 years and 6 months' imprisonment was dismissed.
29 I do not accept the appellant's submission that the offending in Zande was substantially more serious than in the present case. While a greater amount was stolen in Zande ($124,633.67 compared to $77,523.32 in this case), the difference is not so great as to materially distinguish the offending. The number of offences is similar in both cases, the appellant having pleaded guilty to a total of six offences, including the s 32 offences, the circumstances of the latter being of a similar nature to stealing as a servant. The period over which all of the offending occurred is also similar and in both cases the money was taken from small businesses or individuals. In the present case, the most substantial sum was stolen from the appellant's brother. In addition, in Zande,the offender voluntarily admitted the offending to the complainant, rather than waiting for it to come to light, and restitution was made promptly, rather than belatedly as in this case.
30 The offending in Diamonopoulos was more serious but the offender's health problems were reflected in a reduction in the total sentence. The offending in Collins, contrary to the appellant's submission, cannot be regarded as significantly more serious than in the present case. The fact that in Collins the money was used for lifestyle purposes does not materially distinguish it from the present case, where the appellant used the money to fund a personal investment and did so, moreover, in circumstances where there were alternative ways available to him of funding the investment. In Smith, the offending was more serious but while the amount stolen was considerably greater, the affect on a very large financial institution would inevitably be much less than on a small business or individual.
31 I have also had regard to the other cases referred to by counsel for the appellant, together with some additional cases. It is unnecessary to canvass those cases. None of them assist the appellant.
32 There is one further matter. Although no express error was alleged by the appellant, it was asserted in the particulars of both this ground of appeal and ground 2 that in sentencing the appellant his Honour had wrongly taken into account a statement in the victim impact statement made by Mr Leo Heaney that he had suffered a loss of $200,000 by way of fines and penalties imposed by the ATO. That, however, is not an accurate reflection of his Honour's sentencing remarks. Rather, his Honour said it was likely the ATO had imposed fines and/or penalties by reason of the late payment of the tax, but that he could not verify the amount of $200,000 stated in the victim impact statement (WAB 63). The likelihood of fines and/or penalties being imposed by the ATO was accepted by the appellant's counsel when put to him by the sentencing judge in the course of the sentencing hearing. It is clear that his Honour did not take the figure of $200,000 into account.
33 In my view, having regard to the nature of the appellant's offending and to sentences customarily imposed for offending of a similar nature, the total effective sentence of 2 years' imprisonment was not disproportionate to the overall criminality involved in all the offences.
Ground 2
34 There is no substance in this ground of appeal and, indeed, I did not understand counsel for the appellant to press it with any enthusiasm.
35 To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
36 Under s 378 of the Criminal Code (WA) the offence of stealing carries a maximum penalty of 7 years' imprisonment, except where (relevantly) the offender is a servant and the thing stolen is the property of his or her employer, or came into the offender's possession on account of his or her employer, in which case the maximum penalty is 10 years' imprisonment: s 378(7). As noted above, the maximum penalty for the indictable offences was therefore 10 years' imprisonment and for the offences on the s 32 notice it was 7 years' imprisonment.
37 In relation to the offences on the s 32 notice, in particular, it was submitted on behalf of the appellant that the sentence of 6 months' imprisonment was manifestly excessive as the amounts involved in each offence did not greatly exceed the summary jurisdictional limit in s 426(4) of the Criminal Code, where the maximum penalty in cases in which the value of the property stolen is less than $1,000 is a fine of $6,000. That submission, however, rather understates the amounts involved in the present case, which varied from $2,114.13 to $6,934.50, and it fails to take into account the serious nature of the offending.
38 It is unnecessary to repeat what has been said above about the offending in this case or the personal circumstances of the appellant. Nor is it necessary to canvass other cases. In that connection, counsel for the appellant relied on the cases referred to in respect of ground 1. Suffice it to say that I have had regard to those cases in this context and none of them assist the appellant.
39 In my view, it is quite clear that none of the individual sentences in this case was manifestly excessive. I would refuse leave to appeal on this ground.
Conclusion
40 I would:
1. refuse leave to appeal on grounds 2 and 3;
2. dismiss ground 1;
3. dismiss the appeal.
41 MAZZA JA: I agree with Newnes JA.
8
8
1