Hughes v R
[2013] NSWCCA 129
•05 June 2013
Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Hughes v R [2013] NSWCCA 129 Hearing dates: 14 May 2013 Decision date: 05 June 2013 Before: Hoeben CJ at CL at [1]
Hall J at [2]
Davies J at [3]Decision: (1) Leave to appeal granted.
(2) Allow the appeal.
(3) Quash the sentence imposed by Judge Williams. In lieu impose an aggregate sentence consisting of a non-parole period of 2 years commencing 24 February 2012 and expiring 23 February 2014 with an additional term of 1 year and 3 months expiring 23 May 2015.
Catchwords: CRIMINAL LAW - sentence - make false statement with intent to obtain money - early admission of offences to ICAC investigators - assistance regarding other persons involved - no discount for assistance given - long delay in prosecution after admissions - change of circumstances - discount for delay - need to specify discount Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Independent Commission Against Corruption Act 1988Cases Cited: R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
Kite v R [2009] NSWCCA 12
LB v R [2013] NSWCCA 70
Lewins v R [2007] NSWCA 189
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Gallagher (1991) 23 NSWLR 220
R v MAK; R v MSK [2006] NSWCCA 381
R v PPB [1999] NSWCA 360
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Todd [1982] 2 NSWLR 517
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
The Queen v De Simoni (1981) 147 CLR 383Category: Principal judgment Parties: Renea Angeline Hughes (Applicant)
Regina (Respondent)Representation: Counsel:
A Francis(Applicant)
T Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2011/98465 Decision under appeal
- Date of Decision:
- 2012-02-24 00:00:00
- Before:
- Williams DCJ
- File Number(s):
- 2011/98465
Judgment
HOEBEN CJ AT CL: I agree with Davies J.
HALL J: I agree with the orders proposed by Davies J.
DAVIES J: On 17 February 2012 the Applicant pleaded guilty to an indictment containing eight counts of make a false statement with intent to obtain money contrary to s 178BB Crimes Act 1900 (NSW) and one count of cause unauthorised computer function with the intent to facilitate the commission of a serious indictable offence contrary to s 308C Crimes Act. In addition the Applicant admitted five further offences of obtaining a benefit by deception contrary to s 178BA Crimes Act which were taken into account on a Form 1.
All of the sentences carried a maximum penalty of five years imprisonment.
The Sentencing Judge, Judge Williams, imposed an aggregate sentence of a non-parole period of two years and six months imprisonment with an additional term of one year and six months with the sentence commencing 24 February 2012, the non-parole period expiring on 23 August 2014 and the additional term expiring on 23 February 2016. His Honour gave an indicative sentence in relation to Count 1 taking into account the offences on the Form 1 of three years imprisonment and in relation to Counts 2 - 9, on each count two years imprisonment.
Count 1 was that between 13 November 2004 and 6 June 2006 with intent to obtain money for herself, the Applicant made a statement that she was not being paid by RailCorp knowing it to be false in a material particular, namely, that she was being paid by RailCorp during that period of time.
Counts 2 - 7 and Count 9 were that between various specified dates the Applicant with intent to obtain money for Kuipers Excavations made a statement on an identified docket number that services requiring the payment of a specified sum had been rendered by that company between specified dates knowing that to be false in a material particular, namely, that Kuipers Excavations had not rendered the said services.
Count 8 charged that between specified dates the Applicant caused an unauthorised computer function, namely, that she accessed the PHIPS (Plant Hire Internet Procurement System) and altered the email address of Robert Katz to her own email address, knowing that function to be unauthorised and with the intent to facilitate the commission of a serious indictable offence, namely, obtaining a benefit by deception by herself.
The offences arose from an enquiry in 2007 by the Independent Commission Against Corruption which reported in August 2008 on an investigation into bribery and fraud at RailCorp.
Background facts
The agreed facts were contained in a 17 page document which the Sentencing Judge annexed to his Remarks on Sentence. They may be conveniently summarised as follows.
The facts disclosed offending between 13 November 2004 and 5 May 2006 when the Applicant was employed by RailCorp, first, on a contractual basis from about November 2001 and then from 20 June 2005 as a temporary employee.
Her initial position, whilst as a contractor, was the PHIPS Support Officer/Administrator within the Infrastructure Procurement Section at Railcorp. On 22 September 2003 she was promoted to the position of Contracts Relationship Manager in that Section. From that time she was required to submit her own invoices to Railcorp for the work she did. From 20 June 2005, when she became a temporary employee, her remuneration package was $91,500.
The Applicant admitted that during this period she and a sub-contractor Kuipers Excavations caused RailCorp to pay out $509, 637.70 through the creation of false records for work not actually carried out. Ultimately Kuipers Excavations obtained $489,108.20, of which $366,000 was passed onto the Applicant with approximately $20,000 being retained by Plant Service Managers (PSMs) who processed the invoices as administrative/management fees.
The Applicant in her position of trust with RailCorp, supervised the payments through the RailCorp computer system to contractors for various works carried out by them for RailCorp. External PSMs were organisations that were retained by RailCorp to provide the 'plant' or 'equipment.' They organised subcontractors and charged an administrative/management fee for doing this.
The key PSMs were Total Plant Services (TPS) and Kingston Rail Management (Kingston). One of the subcontractors they both used was Kuipers Excavations which was owned by William Kuipers. TPS and Kingston would send invoices to RailCorp which were then paid through the RailCorp computer system. The PSM would then pay the relevant subcontractor such as Kuipers Excavations.
The Applicant was a personal friend of Mr Kuipers having worked with him previously. In around November or December 2004 the Applicant falsely told Mr Kuipers that she was not being paid by RailCorp and was in financial difficulty. The Applicant also falsely told Mr Kuipers that her boss had approved him paying her and that Mr Kuipers would then be reimbursed through the use of the Plant Service Management scheme.
As a result of these false statements Mr Kuipers gave the Applicant $5000 on the spot and then from around 12 December 2004 a series of payments were regularly made from Kuipers Excavations' bank account to the Applicant's bank account. They were generally $5000 and made on a weekly basis. The last amount was transferred on 5 June 2006. The total amount the Applicant received in her account from Kuipers Excavations over the 18 month period was $366,000. The Applicant repeatedly told Mr Kuipers during this period that she was owed wages by RailCorp.
The way that the Applicant recouped the funds she was receiving from Kuipers Excavations during this period was generally by falsely creating documentation in relation to work (orders). When invoices came from Kuipers Excavation falsely claiming the work had been done she authorised them to be paid from the RailCorp side.
These false invoices were processed through the external PSMs - TPS and Kingston. After they submitted the invoices RailCorp paid the PSM who then reimbursed Kuipers Excavations less an administrative/management fee that the PSM retained.
The charge in Count 1 was representative of the scheme outlined above. It related to the entire period between 13 November 2004 and 6 June 2006. It related to the Applicant making false statements to Mr Kuipers that she was not being paid by RailCorp during that period of time with the intention of obtaining money for herself (the $366,000) rather than Kuipers Excavations.
The other 7 charges of make false statement on the indictment were representative counts. They identified particular RailCorp dockets where the Applicant falsely stated that services had been rendered with the intention of Kuipers Excavations receiving money for those services which the Applicant knew had in fact not been supplied. In each case Kuipers Excavations received the relevant payment less the administrative fee retained by the PSM. The various docket numbers and amounts were set out in the terms of the indictment and the agreed facts.
The one charge (Count 8) of cause unauthorised computer function with the intent to facilitate the commission of a serious indictable offence (obtaining a benefit by deception) related to the Applicant accessing the RailCorp system in order to re-route her supervisor's emails to her own email address so that false orders created with her supervisor as the approver would not be actually received by her supervisor. Instead, it would be forwarded to the Applicant's email address and they could be approved without her supervisor's knowledge.
The offences on the Form 1 related to further false dockets/orders created by the Applicant for the purposes of payment being made to Kuipers Excavations. In conjunction with creating some of the false dockets the Applicant also had, on occasions, to make misrepresentations about the dockets to other people (including the general manager of TPS (Paul Knowles) and the rail manager at Kingston (Paul Roberts)) in order to ensure Kuipers Excavations were paid for work she knew they hadn't done. There were five counts of obtain benefit by deception in relation to these on a Form 1 attached to Count 1.
Subjective factors
The frauds appear to have been carried out to sustain the Applicant's gambling habit. The Applicant gave evidence to that effect before the Sentencing Judge. In addition, the Sentencing Judge had reports from a psychologist, Mr Peter Champion, from Mr George Bowie, a gambling addictions counsellor who had been seeing the Applicant after a referral by Gamblers Anonymous in October 2006, and from the Probation and Parole Service, all of which provided largely consistent information about the Applicant's gambling addiction.
The Plaintiff had been sentenced on 15 August 2000 by Penrith Local Court for a number of offences of making a false representation to obtain a benefit from the Commonwealth. Those offences concerned frauds on CentreLink in respect of amounts totalling more than $100,000. The Applicant was sentenced to a six month period of periodic detention.
The Applicant resigned from RailCorp on 4 April 2006. She obtained the position of Club Secretary at the Penrith Junior Rugby League Football Club. Whilst in that position she defrauded the club of about $9000 in August and September 2006. She was ultimately charged with six counts of obtain money by deception and sentenced by Penrith Local Court on 20 December 2006 to 9 months home detention.
Prior to being charged with those offences and prior to the ICAC investigation the Applicant attended Gamblers Anonymous in October 2006. The evidence suggests that she has not gambled since that time.
The Applicant's mother gave birth to her when she was 16 years old. The mother, who was of Aboriginal descent, was an alcoholic. The Applicant's father was physically violent towards the Applicant and her mother. The relationship between the Applicant and her mother was poor.
The Applicant was physically and sexually abused by her uncle who lived with them from the time she was six years old until she was about 12 years old. In addition, the Applicant was raped by the local shopkeeper when she was 14 years old and became pregnant as a result. With support and financial assistance from her school friends the Applicant had an abortion but had to lie about her age to have the procedure done. She was also sexually abused by another man who lived near her grandfather's place.
The Applicant said that from a young age she would sit and watch her father gambling on card machines and betting on the trots at the local pub. The Applicant herself had been gambling on poker machines for the past 19 years before she came to treatment with Mr Bowie shortly after attending at Gamblers Anonymous.
The Applicant has three children. Her eldest daughter was born when the Applicant was 18, the father being a person with whom the Applicant was in a de facto relationship. By the time of the daughter's birth she was in a relationship with another man. That relationship did not last and she married her first husband in about 1994. A son was born to that relationship. She said her husband was a controlling, materialistic man who became violent. She ended the relationship in 1998 after he had an affair.
She met her present husband in 1999 when she was 30 years old. Although there were problems in the relationship because of her gambling and his over-use of alcohol each managed to resolve their issues and they were married when the Applicant turned 40 in about 2009. A daughter was born in 2010 and is now aged about 2 years and 8 months.
As mentioned, the evidence was that the Applicant has not gambled since 9 October 2006 when she first went to Gamblers Anonymous and thereafter to Mr Bowie. She continued to attend Gamblers Anonymous meetings. She became a sponsor to others who were dealing with gambling issues and she has given lectures to various groups to assist people to deal with gambling problems.
Grounds of appeal
The Applicant appeals on four grounds as follows:
1. The sentencing judge erred by failing to have regard to the considerable assistance provided by the applicant and her entitlement to a discount pursuant to section 23 Crimes (Sentencing Procedure) Act.
2. The sentencing judge erred in the conclusion that the delay in the prosecution of this case was only worthy of "some" mitigation on penalty.
3. The sentencing judge erred by having regard to criminality;
(a) in respect of which the applicant was not charged and
(b) which gave rise to a more serious criminality than that in respect of which the applicant was charged falling foul of the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
4. The sentence is manifestly excessive in the circumstances of this case.
Ground 1: Discount for assistance
The Applicant submitted that the Sentencing Judge said nothing about her offers to assist in the prosecution of the co-offender Mr Kuipers and said nothing about the operation of s 23 Crimes (Sentencing Procedure) Act 1999. Section 23 enables the Court to impose a lesser penalty having regard to assistance which has been given or is undertaken to be given to law enforcement authorities.
In his Remarks on Sentence the Sentencing Judge said only this:
On 24 May 2007 she agreed to speak to ICAC investigators. She fully disclosed her wrongdoing and indicated a willingness to provide further information.
In addition, his Honour noted a submission by her counsel at the sentencing hearing that a number of matters including "her help to the investigators" justified a custodial penalty that could be served in the community.
His Honour did not make further reference to her assistance. He gave a discount of 25% for her plea of guilty and said she was entitled to a further discount (which he did not specify) for the delay in prosecution and her remorse and rehabilitation.
No charges were laid against Mr Kuipers arising out of the arrangement between the Applicant and him. He was prosecuted only for giving false evidence to ICAC that the Applicant was the only Railcorp officer that he had paid. In fact he had paid another person, Alan Walker. The evidence given by the Applicant to ICAC (both to the investigators and at hearings) did not relate to payments by Mr Kuipers to Mr Walker. The Crown submitted, therefore, that the value of her offer of assistance was extremely limited.
The Applicant pointed to two letters from the Applicant's solicitor who represented her at the ICAC enquiry which were tendered to the Sentencing Judge. The first letter dated 9 July 2007 addressed to ICAC relevantly said:
Ms Hughes and myself met with you prior to the hearing and Ms Hughes showed you some documentation she had brought with her as potentially relevant. These comprised:
* File relating to a previous workplace assault discussed in the first hearing
* PHIPS system (sic) testing manual
* Chart describing the Plant Hire procurement process (2002)
* An OH&S manual developed by a Railcorp employee and apparently sold independently to a 3rd party company.
You suggested that these be tendered as exhibits per s35 and this subsequently occurred
During the pre-hearing discussion, Ms Hughes volunteered a number of subject areas you might wish to question her on, including the abovementioned OH&S manual.
...
You confirmed that Ms Hughes' evidence had been useful to ICAC's broader investigation of Railcorp, although the actual value would have to be assessed in some detail as the investigation progressed. Only then could ICAC provide documentation which could be used on sentencing Ms Hughes in relation to future criminal charges.
The second letter dated 21 December 2011 relevantly said:
It appeared to me that Renea's cooperation with the ICAC investigation, including a lengthy interview and compulsory examination, could scarcely have been more complete. From ICAC's initial contact she appeared to be at pains to at least partially atone for her wrongdoing by making full and frank disclosure not only as to her own activities but as to the activities of others. It was understood at the time that ICAC would acknowledge Renea's assistance by providing a letter which could be used in sentencing proceedings.
No letter or documentation was provided by ICAC as the letters envisaged.
The Applicant drew attention to the particular matters in s 23(2) which the sentencing court is bound to consider and submitted that a combined discount of 60% should have been given for the early plea and the assistance.
Subsequent to the hearing of the appeal, and with leave, the Applicant filed two affidavits annexing portions of ICAC's report into corruption at RailCorp and into the fraud concerning the Applicant and Mr Kuipers. The report acknowledged the extensive admissions made by the Applicant both in the course of her evidence before the public enquiry (given following a declaration made pursuant to s 38 of the Independent Commission Against Corruption Act 1988) and also to the previously made admissions when she was interviewed by ICAC investigators on 24 May 2007.
In referring the matter to the Director of Public Prosecutions the report noted that there were numerous witnesses who would be potentially available to the DPP to attest to relevant activities on the part of the Applicant. Nevertheless, that is not to diminish the significance of the early admissions made by her.
The particular part of the report dealing with Mr and Mrs Kuipers found that Mr and Mrs Kuipers were aware that the Applicant was not entitled to the money she obtained through their assistance and that Kuipers Excavations' recovery of the funds was dishonest. The report summarised the evidence ICAC relied on to reach that conclusion. It is clear from that summary that there was a great deal of evidence, quite independent of admissions made by Ms Hughes, that enabled the ICAC to reach that conclusion.
It is clear, nevertheless, that the Applicant did assist, and undertook to assist, law enforcement authorities in the investigation of or in proceedings relating to the offences for which she was charged. She did so at an early time (s 23(2)(e)), the evidence was truthful and reliable (s 23(2)(c)) and its nature was such that, as ICAC recognised, her evidence would have been relevant if Mr and Mrs Kuipers had been prosecuted for their part in the fraud (s 23(2)(d)). The assistance was of limited usefulness but that was partly because Mr and Mrs Kuipers were not prosecuted for their involvement in the fraud (s 23(2)(b)).
Section 23(4) requires the Court, which imposes a lesser penalty because the offender has assisted or undertaken to assist law enforcement authorities, to state the penalty that would otherwise have been imposed and to state the amount by which the penalty has been reduced by taking into account the assistance. The Sentencing Judge did not do that.
Where his Honour made no express reference to any discount for assistance nor to s 23 of the Act it is reasonable to infer that no discount was provided for the assistance: R v Gallagher (1991) 23 NSWLR 220 at 234 per Hunt J. The assistance was given but it was limited. In my opinion a discount of 10% ought to have been given.
This ground is made out.
Ground 2: Delay in prosecution
The Applicant appears to have first been interviewed by ICAC investigators on 24 May 2007. At that time she made relevant admissions. Public hearings followed and the report was issued in August 2008. The matter was referred to the Office of the DPP but Court Attendance Notices were not sent to the Applicant until 17 March 2011.
In relation to delay his Honour said this:
It is not disputed that there has been a significant delay in the prosecution by which she is entitled to some mitigation of penalty.
A little later he said:
As to delay, where an offender has been left in uncertain suspense and has demonstrated rehabilitation in the intervening period, as well as the public interest in serious offending being dealt with quickly and fairly, then that requires that the delay be taken into account on sentence and I refer there to the case of R v Blanco (1999) NSWCCA 121. Ms Hughes was of course in a trusted position, administering payments within a system designed to try and minimise fraud and/or corruption.
Finally he said:
She is entitled to a twenty-five per cent discount for her plea of guilty and she is also entitled to a further discount for the delay in prosecution and her remorse and rehabilitation.
His Honour did not specify what the further discount was.
In Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303 Wood CJ at CL (with whom Bell J and Smart AJ agreed) said:
[15] His Honour, as I have already indicated, expressly stated that he had not overlooked the fact of delay, however, it does not appear from the reasons for sentence precisely what reduction was given for that factor.
[16] The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: See, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (Court of Criminal Appeal NSW, 24 February 1998).
...
[26] Having regard to those decisions, I have reached the conclusion that the present sentence falls outside the legitimate range once allowance is made for the inordinate and unexplained delay in the prosecution of the appellant... The adjustment, however, is not an adjustment which I consider should be particularly significant having regard to the very substantial criminality of the present offender.
In R v Todd [1982] 2 NSWLR 517 the delay in sentencing the appellant arose from a sentence he was serving in Queensland for offences committed in that state just after he committed offences in New South Wales. The sentencing judge had said that the only relevance of the Queensland sentence was the light that it might shed on his rehabilitation.
Street CJ (with whom Moffitt P and Nagle CJ at CL agreed) said (at 519):
I have formed the conclusion that his Honour fell into error in thus
placing aside the sentences served by the appellant in Queensland as having no relevance except in so far as they may shed some light upon his present state of rehabilitation.
...
Moreover, where there has been a lengthy postponement, whether
due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls
for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue
degree of leniency being extended to the prisoner.
This reasoning was endorsed in Mill v The Queen (1988) 166 CLR 59 at 65-66 where it was made clear that the principle is not confined to the fixing of the non-parole period but applies also to the fixing of the head sentence.
Two matters are significant in the present case relevant to the issue of delay. First, the Applicant married her present husband and gave birth to their child (her third child) in the period between the first admissions made by her to investigators in May 2007 and when she was first charged on 17 March 2011. Secondly, there was significant evidence of rehabilitation from the time she first approached Gamblers Anonymous in October 2006 and the time she was sentenced.
Mr Bowie said in his report dated 16 February 2012:
Based on my experience in the last 13 years of treating people with gambling addiction and the associated underlying issues, I would go as far as to say that of any recovering problem gambler I have treated were to relapse, Renea would be the last person I would expect to do so. Therefore the likelihood of Renea re-offending as a result of gambling appears to be significantly minimal.
In his report dated 17 July 2011 Mr Champion said:
[20] ... She reported that she had not gambled for 4 years, 9 months and 7 days (as of the day I saw her), and not unreasonably took some pride in this; she also speaking of the role she was playing in assisting other gamblers in various ways, including public speaking.
...
[39] In regards to her prognosis the obvious concern is that Ms Hughes has now on 3 separated occasions and in 3 different contexts been involved in personal dishonesty. The further concern is that she gives a history of gambling from age 18 or so until some 4 1/2 years ago. The further concern is that she does not appear to be psychologically well. If she can continue to avoid gambling and can utilise treatment in various forms then this could serve to limit the risk of further similar offending. I note her report that she has assisted other gamblers either through the Wesley program (including public speaking) or those involved in home detention. If as she says she has avoided gambling for 4+ years then this is clearly as positive sign, though in the end, given the risk factors I could not rate her prognosis as better than guarded, though on the face of it progress has been made in addressing some of the major risk factors.
As in Blanco the delay is unexplained. By comparison with Todd, the delay was not connected with other criminality of the Applicant. If it is appropriate to provide leniency (even "undue leniency") in the case of delay brought about by wrongdoing on an applicant's part it must follow that where there is unexplained delay of a lengthy period during which there has been progress towards rehabilitation and/or a change of circumstances that increases the hardship brought about by a custodial sentence it may be appropriate for a court to impose a sentence that would otherwise be considered to fall below the range of an appropriate sentence taking into account all other matters.
Although the Sentencing Judge said that the Applicant is entitled to some discount for delay he has neither specified what that discount was nor what his notional starting point for the sentence was. It must be assumed that he has discounted for the delay but in the absence of any figures it is not possible to determine if this ground of appeal has been made out. Application of the principles discussed above will be considered further when dealing with Ground 4.
Ground 3: Having regard to matters not the subject of the charges
In her written submissions the Applicant pointed to a number of findings made by the Sentencing Judge concerning moneys taken totalling $366,000. It was submitted that the Remarks showed that the Sentencing Judge sentenced the Applicant as if she had been charged with larceny by a servant whereas the charges only concerned amounts totalling $125,000 from the time that she was employed by RailCorp.
In her oral submissions the Applicant acknowledged that the Crown was entitled to rely upon the fact of $366,000 being obtained pursuant to the first count. The argument in relation to this ground was put on the basis that the Sentence Judge had found as an aggravating feature that the Applicant was an employee of RailCorp throughout the time of the fraudulent scheme and that she was being paid $91,000 per year as salary there. This was said to offend the principle articulated in The Queen v De Simoni (1981) 147 CLR 383.
The approach taken by the Applicant in her oral submissions of accepting the relevance for sentencing purposes of the receipt of the $366,000 was entirely appropriate bearing in mind the agreed facts upon which the Applicant had been sentenced. Those facts made it clear that the counts on the indictment and the Form 1 were representative counts and that the payments made to the Applicant had totalled $366,000.
Whilst it is certainly the case that the Sentencing Judge appears to have assumed that the Applicant became an employee of RailCorp in November 2001, and made reference elsewhere in his remarks to her annual salary of approximately $91,000, two things are clear. First, when the Applicant became an employee of RailCorp she was paid $91,000 per year and she continued with the fraudulent scheme during the whole time she was so employed. Secondly, even when she was not an employee of RailCorp but was contracted to them she was in an undoubted position of trust by reason of the contractual arrangements.
Although not directly employed by Railcorp before 20 June 2005 her position (as noted earlier) from 22 September 2003 was Contracts Relationship Manager in Infrastructure Procurement. It was by reason of that position, and later as a direct employee of RailCorp, that she was able to implement and pursue the fraudulent scheme. The positions were ones of trust as she acknowledged in the agreed facts.
It seems to me that the Sentencing Judge's error in referring to her as an employee with RailCorp from November 2001 is an error of no substance in all of the circumstances. It cannot be said that the Sentencing Judge regarded her position as an employee as one of aggravation in a manner inconsistent with the principle in De Simoni at 389 per Gibbs CJ. The significant point was not her employment so much as the breach of trust involved in the positions which she occupied that enabled the fraud to be perpetrated.
This ground is not made out.
Ground 4: Sentence manifestly excessive
If it is assumed that the only discount provided by the Sentencing Judge was the 25% for the early plea the notional starting point was a little over 5 years and 4 months. As noted earlier, although no discount was specified for "delay in prosecution and her remorse and rehabilitation", the Sentencing Judge said that she was entitled to further discount for those matters. It must be assumed, therefore, that the notional starting point was higher. The Applicant, in her written submissions, said:
The sentence in this case reflects a starting point of just shy of five and half (sic) years full time imprisonment. This starting point presumably reflects some amelioration on account of delay.
Where that starting point is derived is not apparent.
If the Sentencing Judge discounted a further 5% for delay, remorse and rehabilitation the starting point would have been approximately 5 years and 9 months. If discounted by 10% the starting point would have been a little over 6 years. The latter seems to be the minimum discount likely because it embraced three matters.
Because Ground 1 is made out it is necessary for this Court to re-sentence the Applicant. On the assumption that 6 years imprisonment was the notional starting point I do not consider that that sentence is manifestly excessive. Even bearing in mind the Applicant's gambling addiction and favourable subjective circumstances this was a systematic fraud planned and perpetrated over a lengthy period of time involving a large amount of money. It was only possible because of the position of trust the Applicant enjoyed with Railcorp. It is difficult to see how such a sentence could not be said to be within the range of sentences that might have been imposed by the Sentencing Judge.
The Applicant already had a conviction for a number of offences involving frauds concerning more that $100,000 from CentreLink. Despite that conviction the Applicant does not appear to have done anything to deal with her addiction. The further frauds on the football club, although taking place after the RailCorp frauds, were at least relevant to questions of personal deterrence and retribution.
As noted earlier, the Sentencing Judge erred in not providing a further discount for assistance given and offered by the Applicant. That discount should have been 10%. The discount for delay, remorse and rehabilitation provided for by the Sentencing Judge has been assumed at 10%. I consider that that is an appropriate discount. With the discount for the early plea the sentence of 6 years should be discounted by 45% to produce an overall sentence of 3 years and 3 months.
The Sentencing Judge found special circumstances and was correct to do so. The Applicant's chances of rehabilitation were demonstrated to be good from the various reports tendered at the sentencing hearing. His Honour fixed the non-parole period at 62% of the overall sentence. It is appropriate to maintain that proportion on the re-sentencing. With slight rounding down the non-parole period is 2 years commencing 24 February 2012 and expiring 23 February 2014 with an additional term of 1 year and 3 months expiring 23 May 2015. I would not alter the indicative sentences.
It can be seen from the above discussion that assumptions have had to be made about the approach the Sentencing Judge took to the sentencing process. That has made the re-sentencing more difficult because care needed to be taken to avoid a higher notional starting point than the primary judge apparently employed.
There is a tension in the authorities about whether specific figures ought to be put on discounts for various factors that are taken into account on sentencing. Many of the authorities were discussed in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. Cases in related areas include R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 and Kite v R [2009] NSWCCA 12 (remorse); Lewinsv R [2007] NSWCA 189; (2007) 175 A Crim R 40 at [17], [19]-[20] ("Ellis" discount).
The Crimes (Sentencing Procedure) Act 1999 s 23(4) requires the court to state the penalty that would otherwise have been imposed if no discount for assistance was given. The common law position was similar: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [51]. The Crimes Act 1914 (Cth) s 21E requires a discount for future assistance to be specified for Commonwealth offences. Thomson at [160] encourages the quantification for the plea of guilty. Recent authority in this Court points to a need to specify each discount separately: LB v R [2013] NSWCCA 70 at [44] - [46].
In R v PPB [1999] NSWCCA 360 Kirby J (with the agreement of Simpson J) discussed a discount for assistance. He said at [29]:
It was said to be unnecessary to quantify the precise level of the discount (Regina v Gallagher, per Gleeson CJ at p 227), although that remark was made before the Crimes Act and the Criminal Appeals Act were amended. In 1992 s442B was introduced into the Crimes Act, and s5DA into the Criminal Appeals Act. I believe, in the light of these provisions, it is prudent for a sentencing judge to include the arithmetic by which he or she arrives at the appropriate sentence. When the starting point is not identified, and the discount not specified, a person who has provided assistance may be left with a sense of grievance.
(Section 442B was the predecessor to s 23 Crimes (Sentencing Procedure) Act. Section 5DA deals with Crown appeals where a person whose sentence was discounted for assistance fails to provide that assistance.)
The dangers adverted to in SZ v R at [4] -[11], Lewins at [20]-[21] and R v MAK at [44] need to be heeded, and it must be remembered that sentencing is an intuitive process and a formulaic approach should ordinarily be avoided (Pearce v The Queen (1998) 194 CLR 610 at 624; Thomson at [56] ff), but unless either the discount for discrete matters (cf remorse or perhaps the "Ellis" discount) or the notional starting point is disclosed there will be difficulties for this Court in any re-sentencing process. This is particularly so where, as in this case, the Sentencing Judge has said that the Applicant was "entitled to a further discount for the delay". Further, in cases involving co-offenders challenges on the basis of parity may not be able to be easily resolved.
A reading of Wood CJ at CL's judgment in Blanco at [15] suggests that he was of the view that the primary judge in that case ought to have specified what the reduction was for the delay.
Conclusion
I propose the following orders:
(1) Leave to appeal granted.
(2) Allow the appeal.
(3) Quash the sentence imposed by Judge Williams. In lieu impose an aggregate sentence consisting of a non-parole period of 2 years commencing 24 February 2012 and expiring 23 February 2014 with an additional term of 1 year and 3 months expiring 23 May 2015.
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Amendments
21 June 2013 - Counsel for the Applicant corrected to read "A Francis"
Amended paragraphs: Coversheet
Decision last updated: 21 June 2013
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