Hladin v The State of Western Australia
[2005] WASCA 50
•18 MARCH 2005
HLADIN -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 50
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 50 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:29/2004 | 4 FEBRUARY 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 18/03/05 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence quashed; new sentence imposed | ||
| D | |||
| PDF Version |
| Parties: | JOHN RICHARD HLADIN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Multiple charges of fraud and stealing Whether sentence of 6 years' imprisonment manifestly excessive Whether undue weight given to late plea of guilty and lack of remorse Whether sentenced for uncharged acts Sentence beyond the range of an acceptable exercise of sentencing Judge's discretion |
Legislation: | Criminal Code (WA), s 378, s 409(1)(c), s 409(1)(e) Sentencing Act 1995 (WA), s 8(2) Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, Sch 1 |
Case References: | Cameron v The Queen (2002) 209 CLR 339 Grubb v The Queen [2002] WASCA 158 Haman v The Queen [2000] WASCA 369 McPharlin v The Queen, unreported, CCA SCt of WA, Library No 970665; 10 October 1997 Penny v The Queen (2002) 26 WAR 475 R v Birnie (2002) 5 VR 426 R v Black [2002] WASCA 26 R v Cooksley [1982] Qd R 405 R v Dales (1995) 80 A Crim R 50 R v De Simoni (1981) 147 CLR 383 R v Diefenbach (1999) 108 A Crim R 19 R v Kite, unreported; CCA SCt of WA; Library No 950659; 1 December 1995 R v Olbrich (1999) 199 CLR 270 R v Ottobrino [1999] WASCA 207 R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996 R v Wilkinson (1996) 85 A Crim R 353 Weininger v The Queen (2003) 212 CLR 629 Turner v The Queen [2002] WASCA 189 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HLADIN -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 50 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : IND 632 & 1579 of 2002
Catchwords:
Criminal law and procedure - Sentencing - Multiple charges of fraud and stealing - Whether sentence of 6 years' imprisonment manifestly excessive - Whether undue weight given to late plea of guilty and lack of remorse - Whether
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sentenced for uncharged acts - Sentence beyond the range of an acceptable exercise of sentencing Judge's discretion
Legislation:
Criminal Code (WA), s 378, s 409(1)(c), s 409(1)(e)
Sentencing Act 1995 (WA), s 8(2)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, Sch 1
Result:
Appeal allowed
Sentence quashed; new sentence imposed
Category: D
Representation:
Counsel:
Appellant : In person
Respondent : Mr D Dempster
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 209 CLR 339
Grubb v The Queen [2002] WASCA 158
Haman v The Queen [2000] WASCA 369
McPharlin v The Queen, unreported, CCA SCt of WA, Library No 970665; 10 October 1997
Penny v The Queen (2002) 26 WAR 475
R v Birnie (2002) 5 VR 426
R v Black [2002] WASCA 26
R v Cooksley [1982] Qd R 405
R v Dales (1995) 80 A Crim R 50
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R v De Simoni (1981) 147 CLR 383
R v Diefenbach (1999) 108 A Crim R 19
R v Kite, unreported; CCA SCt of WA; Library No 950659; 1 December 1995
R v Olbrich (1999) 199 CLR 270
R v Ottobrino [1999] WASCA 207
R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996
R v Wilkinson (1996) 85 A Crim R 353
Weininger v The Queen (2003) 212 CLR 629
Case(s) also cited:
Turner v The Queen [2002] WASCA 189
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1 STEYTLER P: This is an application for leave to appeal against sentence.
2 The appellant was charged, on two indictments, with offences of fraud and stealing. The first indictment (632 of 2002, misdescribed in the application book as 652 of 2002) alleged 50 counts of fraud contrary to s 409(1)(c) and (e) of the Criminal Code (WA). The second indictment (1579 of 2002) alleged two counts of stealing contrary to s 378 of the Code and one count of fraud, contrary to s 409(1)(c) thereof. The appellant pleaded guilty to all counts on both indictments.
3 The material facts giving rise to these charges were admitted for the purposes of sentencing.
Indictment 632 of 2002
4 The 50 charges of fraud the subject of indictment 632 of 2002 all related, in one way or another, to the passing of cheques.
5 Counts 1 and 4 to 12 on that indictment related to cheques written out by the appellant in favour of a company, Redfern Enterprises Pty Ltd ("Redfern"). During the latter half of 1999 the appellant prevailed upon Mr Ian Johnson, a director of Redfern, to procure that company, and a related company, Spandau Pty Ltd ("Spandau"), to lend money to one of the appellant's companies, Salaberg Pty Ltd ("Salaberg"), trading as "The Toy Shop" and as "Prestige Car Hire", to enable it to purchase motorcars for on-sale. In fact Salaberg had surrendered its motor vehicle dealer's licence on 30 September 1998 (it was disqualified from holding such a licence on 14 November 2000). Redfern, presumably unaware of this, loaned a total of $146,500 to Salaberg. When Redfern pressed for repayment of the loan funds, the appellant wrote out a number of cheques drawn on accounts held by Salaberg and provided these to Redfern. This took place over the period 3 September 1999 to 14 October 1999. None of the cheques was met. As each cheque was found to have been dishonoured, Redfern (or Spandau, as the case may be) took the matter up with the appellant. Each time a further cheque, or cheques, would be written out. In every case the appellant knew that the cheque or cheques would not be met. Indeed, by the time the cheque the subject of count 11 was written out on 20 September 1999, the bank account upon which it had been drawn had already been closed. However, by this means, the appellant was able to gain a benefit, being the deferment of payment of the debt of $146,500 owed to Redfern.
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6 Counts 13, 15, 18, 20, 21, 23, 25, 28, 29, 31 to 33, 37, 38, 41, 42 and 49 relate to cheques written out by a company, WEJ Pty Ltd ("WEJ"), to a second company, Icon Pty Ltd ("Icon"). Counts 14, 16, 17, 19, 22, 24, 26, 27, 30, 34 to 36, 39, 40, 43 to 48 and 50 relate to cheques written out by Icon to WEJ or, in one case, to one of its directors, Mr N A De Pardo, a Perth barrister. These cheques were written out over the period 25 May 2000 to 30 August 2000.
7 The appellant, Mr De Pardo, and a Mr Clark, a director of Icon, were known to each other and held a common interest in motor vehicles. The appellant approached the two men and asked them if their companies would be interested in providing short-term loans for the purpose of purchasing second-hand motor vehicles which were to be on-sold for a profit. He offered them a very generous share of the profit which would be derived from doing so. Because Salaberg then had no current motor vehicle dealer's licence, the appellant told Mr De Pardo that Icon was a licensed motor vehicle dealer and Mr Clark that WEJ was licensed motor vehicle dealer. In fact, neither company, nor any of its directors, held a motor vehicle dealer's licence.
8 In reliance upon what had been said to them, the two men did as they were asked. They wrote out business cheques, or arranged for the provision of bank cheques, in accordance with the appellant's wishes.
9 As has been foreshadowed, various cheques were written out by WEJ in favour of Icon and others were written out by Icon in favour of WEJ or Mr De Pardo. The appellant also arranged for both companies to direct funds to other entities, for his own advantage. Because each of Icon and WEJ was receiving what it believed to be a return on its investment by way of the cheques written out by the other, each believed that events were progressing in accordance with the appellant's misrepresentations to them.
10 Events continued in this way until August 2000 when, by chance, Mr De Pardo and Mr Clark met and discovered the fraud. They confronted the appellant and, ultimately, reported him to the police.
11 The total amount lost by Icon and WEJ as a result of loans made by them at the appellant's request was the sum of $384,050, of which $228,050 was lost by WEJ and $156,000 by Icon. No part of the loss has been repaid to either of those companies. Nor has Redfern been paid any part of the outstanding balance of $146,500 owing to it as a result of loans made by it to the appellant or one of his companies. The appellant was
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- declared bankrupt in April 2001 and it now seems that there is little or no prospect of any restitution being made by him.
12 The remaining counts on indictment 632 of 2002, being counts 2 and 3, relate to cheques written out by the appellant in favour of WEJ on 6 September 2000 (seemingly misdescribed in the indictment as having been written on 6 September 1999) when that company was pressing for repayment of what was owed to it. Each cheque was drawn on the account of a company, Boldfox Nominees Pty Ltd, controlled by the appellant. At the time at which each of those cheques was written out, the bank account on which they were drawn had already been closed.
Indictment 1579 of 2002
13 The offences the subject of indictment 1579 of 2002 related to a Singapore resident, Ms Mimi Lee. The appellant and Ms Lee's late husband had been friends. She owned, in Perth, a BMW 318 motorcar and a 1979 Rolls Royce Silver Shadow. The Rolls Royce had broken down and was parked at a house in Dalkeith. The appellant offered to sell the BMW on Ms Lee's behalf and also to have the Rolls Royce repaired on her behalf. He sold the BMW on 18 November 1999 for a price of $46,000. Instead of giving the proceeds of that sale to Ms Lee, he instructed the purchaser to credit the full amount towards a debt owed by the appellant to the purchaser. Ms Lee never received any part of the proceeds from the sale. Also, instead of having the Rolls Royce repaired, the appellant sold it to a company Wilimia Pty Ltd without Ms Lee's authority. The purchase price (an amount of $21,000) was, on the appellant's instructions, paid to Boldfox Nominees Pty Ltd. As at the date of sentencing, Ms Lee had not been able to secure the return of the Rolls Royce.
The Sentences Imposed
14 On 3 March 2004 the appellant was sentenced to a term of 3 years' imprisonment on each of the 50 counts of fraud on the first indictment and to a term of 3 years' imprisonment in respect of each of the counts on the second indictment. The sentence of 3 years' imprisonment for count 1 on the second indictment was ordered to be served cumulatively upon the sentence of 3 years' imprisonment on count 1 on the first indictment. All of the other sentences were ordered to be served concurrently with count 1 on the first indictment. Consequently, the total sentence imposed upon the appellant was one of 6 years' imprisonment. He was declared eligible for parole.
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The Ground of Appeal
15 There is only one ground of appeal. It is that the sentencing Judge erred in imposing a sentence which was manifestly excessive in all of the circumstances of the case. However, the particulars to that ground allege that the sentencing Judge erred:
"1 By placing undue weight inter alia, upon:
(i) the Applicant's lack of remorse,
(ii) the disposition of the funds the subject of the charges by the Applicant, and
(iii) the lateness of the Applicant's plea of guilty;
2 By departing from the range of sentences customarily imposed for offences of this nature."
The Late Plea of Guilty and Lack of Remorse
16 I will deal, first, with the appellant's complaint that the sentencing Judge placed undue weight on the appellant's late plea of guilty and his lack of remorse.
17 After he had been charged, the appellant elected to have a preliminary hearing. This was listed for 7 August 2002. Approximately one month before that hearing was due to commence, the appellant's solicitors advised the prosecution that the defence would concede that there was a case to answer. The appellant was then committed to stand trial in the District Court. The trials in respect of the offences charged were listed to commence on 13 January 2004. However, some three weeks before that the appellant notified the prosecution that he intended to plead guilty to all charges.
18 When he appeared before the sentencing Judge, the appellant said that he had always intended to plead guilty but had delayed doing so for the reason that he wanted to be of support to his wife and family for as long as he could. The sentencing Judge, after referring to this, and after acknowledging that a plea of guilty is ordinarily indicative of remorse, an acceptance of responsibility and a willingness to facilitate the course of justice, went on to say that, in the circumstances of the delayed plea and having regard for the reason therefore, those mitigating factors carried little weight in this case. He said that, by the time at which notice of intention to plead guilty had been given, a substantial brief had been
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- prepared, 19 court sitting days had been reserved for the trial and witnesses had been subpoenaed. His Honour went on to say that the only factor warranting mitigation was that a lengthy trial had been avoided.
19 As to the issue of remorse, the sentencing Judge noted that, after complaints had been laid, the appellant was interviewed by police but refused to answer any questions and gave no account of his conduct concerning the offences. He provided no assistance of any kind. After referring to this, and a number of other matters which had been raised by the appellant on his behalf, the sentencing Judge went on to say:
"You now purport remorse for your offending. Before me you expressed your apologies to the complainants and accepted without reservation your culpability and wrongdoing. You acknowledged that you had brought great shame upon yourself and upon your family and friends. Meanwhile your victims have been left in limbo and without apology and expecting to have to come to your trial to give evidence. Had you been truly and genuinely remorseful, you would not have put yourself before any consideration for your victims. You may be sorry now that the inevitable consequence of your actions is about to be visited upon you but being sorry for oneself and belatedly for the victims hardly amounts to any indication of genuine remorse."
20 In my opinion the attitude expressed by the sentencing Judge was entirely understandable. I am not at all persuaded that his Honour erred in concluding that no genuine remorse had been shown. Given the circumstances to which he referred, his finding in that respect was plainly open.
21 As to the late plea of guilty, s 8(2) of the Sentencing Act 1995 provides that, the earlier in proceedings that a guilty plea is made, or that indication is given that such a plea will be made, the greater will be the mitigation in sentence. While some reduction is ordinarily still given even in the case of very late pleas (see Cameron v The Queen (2002) 209 CLR 339 at [39] and [40], per McHugh J), there is no suggestion that the sentencing Judge made no reduction, in this case, in respect of the late plea. His Honour said, in terms, that the sentences which he imposed had been arrived at after having regard to the appellant's pleas of guilty and to the other mitigating factors which had been raised on his behalf. I have mentioned that he also said that there was some mitigation in the fact that a lengthy trial had been avoided.
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The "Disposition" of the Funds
22 It is not entirely clear what point is sought to be made by the contention, in particular 1(ii) of the ground of appeal, that the sentencing Judge placed undue weight upon "the disposition of the funds the subject of the charges". However, as matters emerged in the course of the appellant's written and oral submissions to the Court, his contention appeared to be that the sentencing Judge sentenced him, in effect, for offences with which he had not been charged.
23 In the course of his sentencing remarks the sentencing Judge said that the total loss sustained by the complainants was an amount of $597,550, none of which had been repaid or recovered. As will be apparent, that is the total of the sum of $228,050 lost by WEJ, the sum of $156,000 lost by Icon, the sum of $146,500 lost by Redfern and the sum of $67,000 lost by Ms Lee. The sentencing Judge also said, in this regard:
"In response to my inquiry of you as to where the money, nearly $600,000, went, it was your response that the moneys went back into paying the business debts which were in excess of that amount. I find that to be hardly an adequate explanation, for if there were debts incurred you have had to have had the money, the subject of those debts, at some time. Money, and an amount as substantial as this, simply does not evaporate into thin air. Your explanation is hardly acceptable."
24 Then, when reciting some of the applicable sentencing principles, his Honour mentioned that, given the seriousness of the offences and having regard to the amount of money involved, he had no hesitation in concluding that only a term of imprisonment to be immediately served was appropriate.
25 The appellant contended before us that the sentencing Judge was wrong to find that the offences charged had resulted in losses amounting, in all, to nearly $597,550. He says, in this respect, that his "criminality as alleged in indictment 632/2002 comprises the Applicant's attempt to delay payment of funds legitimately borrowed and which were borrowed without being induced by any fraudulent or deceitful acts on the part of the Applicant" and that, if he had not sought to repay "the legitimately borrowed sums", no criminality would arise in the context of that indictment. Consequently, he says, if he was punished for perceived improprieties in respect of the original borrowings, then he was punished in respect of uncharged acts.
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26 There is no doubt that the general principle that the sentence imposed on an offender should take account of all of the circumstances of the offence is subject to the more fundamental and important principle that no-one should be punished for an offence of which he or she has not been convicted: R v De Simoni (1981) 147 CLR 383 at 389, per Gibbs CJ, and R v Olbrich (1999) 199 CLR 270 at 279, per Gleeson CJ, Gaudron, Hayne and Callinan JJ. However, as was pointed out by Ormiston JA (with whom Charles JA and O'Bryan AJA were in agreement) in R v Birnie (2002) 5 VR 426 at 432, such cases as De Simoni do not deny, and indeed accept, that a sentencing Judge is bound to take into account all the circumstances relevant to the commission of the offence, so long as he or she does not, in a case where there are circumstances of aggravation which might have led to a more serious count or to a separate count, sentence on the basis of an offence for which the accused has not been charged: see also Penny v The Queen (2002) 26 WAR 475 at 477, 480 - 481 and R v Diefenbach (1999) 108 A Crim R 19 at 28 [28] and 30 [43]. Of course, a person who has been convicted of, or who has admitted to, the commission of other offences will ordinarily receive a heavier sentence than a person who has previously led a blameless life. So, in Weininger v The Queen (2003) 212 CLR 629 at 640 [32] Gleeson CJ, McHugh, Gummow and Hayne JJ, while acknowledging that it would be wrong to sentence an offender for crimes with which he had not been charged, went on to say that, in a case in which the offender has been convicted of other offences:
"Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well established principle … that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed."
27 In R v Cooksley [1982] Qd R 405 at 419 McPherson J said that a fine line may exist between ascertaining the character of the accused from the circumstances surrounding the offence (which may involve criminal conduct) and punishing that person for offences for which he or she had not been tried or convicted. He said that:
"Plainly great care must be exercised in observing the distinction, but all that is proscribed is the punishment of offences before or without conviction therefor. A consideration
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- of the circumstances of the offence is not precluded simply because they also constitute contravention of the criminal law, as where rape is accompanied by physical violence, or robbery by a temporary deprivation of liberty. In my opinion his Honour's discretion did not miscarry by trespassing into the limited area that is forbidden to a sentencing judge."
28 See also R v Dales (1995) 80 A Crim R 50 in which this case, and many other cases dealing with this issue, are extensively reviewed.
29 In the end, what is required, in assessing whether or not the principle identified in such cases as De Simoni and Olbrich has been offended, is a careful reading of the whole of the sentencing remarks of the sentencing Judge in order to see to what extent, and for what purpose, uncharged acts might have been considered. Those questions are not easily answered in this case, largely because of the manner in which the charges were framed and the somewhat ambiguous content of the statements of material facts upon which the sentencing Judge was required to sentence the appellant.
30 It is clear that those who loaned money to the appellant's companies have lost the whole of what they loaned. As I have said, it is also clear that, if these losses are added to what has been lost by Ms Lee (as matters stood at the time of sentencing), the total amounts to around $597,550, the figure mentioned by the sentencing Judge. However, it is not clear just how much money was lost by the corporate complainants as a result of the charged fraud. So far as Redfern is concerned, the charged fraud relates only to the appellant's stratagem of delaying any recovery action in respect of money already loaned by providing it with the cheques the subject of counts 1 and 4 to 12, well knowing that they would not be met. So far as Icon and WEJ are concerned the charged fraud appears to relate primarily to the issue of cheques (the subject of counts 2, 3 and 13 to 50 in indictment 632 of 2002) which were procured by the appellant by fraudulent means so as to induce those companies to believe that they were obtaining a return on moneys otherwise invested by them in the appellant's enterprises. The cheques the subject of counts 2 and 3 on indictment 632 of 2002 were written out by the appellant in favour of WEJ so as to delay recovery action by that company. It is very difficult to determine, on these facts only, just how much money was lost as a result of the charged fraud, although it seems very doubtful that those losses could have equated to the total of the whole of the amounts lost by Redfern, Icon and WEJ.
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31 It is also difficult to determine, from the (admitted) background facts, what were the circumstances in which the various loans to the appellant's companies were made. I have said that the appellant now contends that funds were "legitimately" borrowed by him, without any fraudulent inducement on his part. That seems to be a rather doubtful claim, given that Salaberg had surrendered its dealer's licence as far back as 30 September 1998, seemingly well before the loans were made by any of Redfern, Icon or WEJ. However, as I have said, the fact remains that the circumstances in which the loans were made have been left unclear.
32 Given this rather unsatisfactory state of affairs, it seems to me that, as regards relevant background events giving context to the charged fraud, the sentencing Judge was obliged to proceed only upon the basis of what was clearly admitted by the appellant. What that amounted to seems to be that, after having induced each of Redfern, Icon and WEJ to lend money to his company or companies, in circumstances which are unclear, he embarked upon what the sentencing Judge rightly referred to as "a deliberate, systematic and planned" course of dishonest conduct designed to delay recovery of the loan funds and, in the case of WEJ and Icon, to induce those companies to believe that they were obtaining a return on their investments. That is essentially the basis upon which the sentencing Judge did proceed, although it does seem from his sentencing remarks that he wrongly assumed that the corporate complainants lost the whole of what they had loaned as a result of the charged fraud.
Was the Sentence Beyond the Range?
33 That brings me to the question whether or not the sentences imposed were beyond the range of an acceptable exercise of discretion.
34 The frauds which were charged (each of which carried a maximum penalty of 7 years' imprisonment) were serious. They were brazen, deliberate and sustained, occurring over a total period of around 12 months. The thefts from Ms Lee were blatant and uncaring. I have said that I agree with the sentencing Judge that the appellant has shown little remorse for his offending behaviour. In these circumstances, even given the appellant's (very late) plea of guilty and the fact that, although aged 40 or 41, he had no relevant prior convictions and had, by all reports, been a person of good character (a fact which no doubt aided him in committing these frauds), a severe punishment was undoubtedly called for. The effect of his offending behaviour on his victims was very significant and offences of this kind demand a punishment which takes account of the need for both personal and general deterrence. However,
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- in my respectful opinion the total sentence imposed by the sentencing Judge and, indeed, that imposed in respect of each count, fell outside the bounds of an acceptable range, perhaps because his Honour was too much influenced by what he saw as being the total loss resulting from the charged acts.
35 Quite clearly, his Honour must have considered that the appropriate sentence on each count was one of 4 years and 6 months' imprisonment and that the appropriate total sentence was one of 9 years' imprisonment. That necessarily follows from the fact that he was obliged, by virtue of the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 read with cl 2(1) of Sch 1 thereof, to reduce the sentences which he would otherwise have imposed by a proportion of one third. In my respectful opinion those sentences are manifestly excessive for the offences charged, when looked at in their overall context.
36 In making that point, and while acknowledging that each case necessarily turns upon its own peculiar circumstances, it is instructive to examine the sentences imposed in some other cases of fraud or stealing over the last 10 years.
37 In R v Kite, unreported; CCA SCt of WA; Library No 950659; 1 December 1995 the offender, a 44-year-old man with excellent antecedents, embarked upon a practice of depositing valueless cheques into his bank account with the intent that other cheques written out to creditors would be honoured because of the inflated credit balance. Over a period of 18 months he wrote out 3500 cheques, resulting in a total loss to the bank of $500,000, although the indictment to which he pleaded guilty was a "representative" indictment in which the loss to the bank was some $174,000 and was incurred over a period of four months. He engaged in this conduct in order to pay the creditors of his business and also to pay for hospital and other expenses incurred by his brother. The Court, on a Crown appeal, imposed a total sentence of 3½ years' imprisonment.
38 In R v Wilkinson (1996) 85 A Crim R 353 the offender was convicted, after pleading guilty, of 15 counts of stealing as a servant and three counts of making a false entry in the books of a corporation with intent to defraud. He had been employed as general manager of the complainant company and, unlike the appellant in this case, was consequently in a position of trust. The charges related mainly to his drawing of unauthorised cheques totalling $118,450 on the company accounts. Prior to sentencing he had repaid $94,019 largely from the
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- proceeds of the profitable sale of assets purchased with the stolen money. He had a prior conviction for fraud. He was sentenced, after a successful Crown appeal, to an overall sentence of 6 years' imprisonment. The individual sentences imposed ranged from terms of 6 months' imprisonment to one of 2 years' imprisonment.
39 In R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996 the offender, who was the managing director of a company and hence in a position of trust, engaged in a number of fraudulent transactions (there were 46 counts in all) involving the falsification of invoices, the misappropriation of cheques and misappropriation of funds. The total amount of money obtained by means of these frauds was $521,400. The dishonesty occurred over a period of almost two years. The offender's antecedents were impeccable. He was sentenced, again after a successful Crown appeal, to a total sentence of 5 years' imprisonment. The individual sentences imposed ranged from 2 to 3 years' imprisonment.
40 In McPharlin v The Queen, unreported, CCA SCt of WA, Library No 970665; 10 October 1997 the offender was the managing director of a family company. In that capacity he defrauded a finance company out of a total amount in excess of $800,000. The fraud was described as one "of very considerable proportions committed by a series of several separate acts and involving active acts of dishonesty". He had pleaded guilty at the first opportunity on the fast-track system and had no prior convictions. His antecedents were good, he had received no direct benefit from his actions, he co-operated with the police and he was suffering was a significant stress condition at the time of the commission of the offences charged. He was sentenced to a term of 2 years' imprisonment on each of five counts. The sentence was structured so as to give rise to a total sentence of 4 years' imprisonment. His appeal against the sentences imposed upon him was dismissed by the Court.
41 In R v Ottobrino [1999] WASCA 207 the offender was convicted of some 51 counts of stealing as a servant. Her offending took place over a period of some four years and was facilitated by the fact that she was in a position of trust, being employed as a bookkeeper. She was the sister of one of the directors of the company from which the money was stolen. The thefts involved falsification of documents in a sophisticated and careful way. The amount stolen was approximately $194,500. The offender pleaded guilty and showed only a late display of remorse. She was the mother of young children and had been of previously good character. The stolen money was used for the purposes of her family.
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- She was sentenced to a total period of 18 months' imprisonment, with the individual sentences ranging from 6 months' imprisonment to 12 months' imprisonment. The Court of Criminal Appeal dismissed a Crown appeal against the sentences imposed.
42 In Haman v The Queen [2000] WASCA 369 the offender was convicted of 87 counts involving 41 counts of forging a record with intent to defraud, 41 counts of uttering a forged record with intent to defraud and five counts of stealing as a servant. The offender, an Indonesian immigrant to Australia, approached Indonesian friends and acquaintances and encouraged them to invest in Australian ventures. He then diverted moneys so invested into his own bank accounts and used it for gambling. He was a 42-year-old man who had previously been of good character. He co-operated with the police and showed remorse. He pleaded guilty to the offences charged. He was sentenced to a total term of 7 years' imprisonment. The individual sentences ranged between 2 and 3 years' imprisonment. His appeal against the sentences imposed was dismissed by the Court of Criminal Appeal.
43 In R v Black [2002] WASCA 26 the offender pleaded guilty to four counts of stealing as a servant and four counts of falsifying a record. He was a bank employee in a position of trust. His actions were described as deliberate, systematic and premeditated and his dishonesty resulted in a loss, to the bank, of $2,198,461.60, with no hope of restitution. He had taken extensive steps to disguise his wrongdoing and the period over which his dishonesty was said to have been perpetrated was one of seven and a half years. He used the dishonestly obtained money for the purposes of gambling. He was 32 years old and had good antecedents. He co-operated with authorities and showed remorse. He was sentenced to a total period of 6 years' imprisonment. That sentence was structured by way of concurrent terms of 2 years' imprisonment on each of the four counts of the making of a false entry, to be served cumulatively upon concurrent terms of 4 years' imprisonment on each of the four counts of stealing. The Court, on a Crown appeal, considered that the sentences were lenient, but not so lenient as to demonstrate error.
44 In Grubb v The Queen [2002] WASCA 158 the offender, after pleading guilty, was convicted of eight counts of stealing money received subject to a direction and 25 counts of stealing. He had been a finance broker in a position of trust and confidence who had misused funds invested by his clients by dealing with moneys contrary to directions given and diverting them to other purposes. He, too, had been of prior good character. He had suffered from depression and alcohol abuse at the
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- time of his offending. He had also experienced complex behavioural, emotional and mental difficulties, although there was no suggestion that the offender was unaware of the nature of his conduct or was to any material degree so affected in his thought processes that he did not appreciate its quality of consequences. The offending conduct had taken place over one and a half years and had involved repeated, skilful, deliberate and systematic deception. His conduct resulted in losses totalling $5,205,481. Each count of stealing by direction attracted a sentence of 6 years' imprisonment and each stealing offence was dealt with by way of the imposition of a term of 4 years' imprisonment. The sentences were so structured as to give rise to a total period of 10 years' imprisonment.
45 In my respectful opinion, this analysis (and it is by no means exhaustive) illustrates that the sentences imposed in this case were manifestly excessive (even allowing for the fact that some of the sentences to which I have referred were imposed after Crown appeals and, hence, could be expected to be somewhat lower than would otherwise have been the case). As will be apparent, the sentences imposed in this case are considerably higher, once the fact of the required statutory reduction is taken into account, than those imposed in cases where the offending behaviour was considerably more serious. In all of the circumstances, individual sentences of 4 years and 6 months' imprisonment, reduced by the statutory command to sentences of 3 years' imprisonment, seem to me to be far too high, as does the total sentence of 9 years' imprisonment, reduced to 6 years' imprisonment. I would consequently grant the appellant for leave to appeal, allow the appeal, quash the sentences imposed by the sentencing Judge and substitute, in lieu, a sentence of 2 years' imprisonment in respect of each of the counts charged on both indictments. For totality reasons I would order that the sentence imposed in respect of count 1 on indictment 632 of 2002 be served cumulatively upon the sentence imposed in respect of count 1 on indictment 1579 of 2002 but that all other sentences be served concurrently with that imposed in respect of count 1 on indictment 632 of 2002. That would give rise to a total sentence of 4 years' imprisonment. These sentences are one third less than those which I would have imposed were it not for the statutory provisions to which I have referred. I would not interfere with the trial Judge's direction that the sentences be taken to have commenced on 13 January 2004, the date on which the appellant was remanded in custody, and that the appellant be eligible for parole.
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46 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
47 ROBERTS-SMITH JA: I have read the draft reasons prepared by Steytler P. I agree with those reasons and have nothing further to add.
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