Job v R

[2011] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Damon JOB v R [2011] NSWCCA 267

Hearing dates:

15 June 2011

Decision date:

16 December 2011

Jurisdiction:

Common Law - Criminal

Before:

McClellan CJ at CL at [1]; Hidden J at [2], Grove AJ at [75]

Decision:

Leave to appeal granted, appeal allowed, sentences in District Court quashed. Applicant re-sentenced as follows:

On each of the charges of obtaining a benefit by deception relating to the Mays Hill tidal flow activities, a fixed term of imprisonment for 12 months, dating from 19 August 2010 and expiring on 18 August 2011;

On each of the charges of obtaining a benefit by deception relating to the Rail Corp shutdowns, imprisonment for a fixed term of 12 months, commencing on 19 February 2011 and expiring on 18 February 2012;

On each of the charges of corruptly receiving a benefit, imprisonment for a non-parole period of 1 year, commencing on 19 August 2011 and expiring on 18 August 2012, and a balance of term of 2 years, commencing on 19 August 2012 and expiring on 18 August 2014.

Direct that applicant be released on parole on 18 August 2012.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - offences of obtaining benefit by deception, corruptly receiving a benefit - adequacy of discount for pleas of guilty and assistance to authorities - whether sufficient weight given to mental illness - failure to take into account applicant's undertaking to make restitution

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Borkowski [2009] NSWCCA 102, A Crim R 1
R v Gallagher (1991) 23 NSWLR 220
R v M [2005] NSWCCA 224
R v Pang (1998) 105 A Crim R 474
R v NP [2003] NSWCCA 195
R v OPA [2004] NSWCCA 464
R v AMT [2005] NSWCCA 151
R v Sukkar [2006] NSWCCA 92, 172 A Crim R 151
R v Phelan (1993) 66 A Crim R 446
R v Conway [2001] NSWCCA 51, 121 A Crim R177
Stratford v R [2007] NSWCCA 279
Thewlis v R [2008] NSWCCA 176, 186 A Crim R 279
R v Cage [2006] NSWCCA 304
DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1
R v Fell [2004] NSWCCA 235
R v Blundell [2008] NSWCCA 63, 70 NSWLR 660
R v Hawker [2001] NSWCCA 148
R v Martin [2005] NSWCCA 190

Category:

Principal judgment

Parties:

Damon Job (applicant)
Regina (Crown/respondent)

Representation:

Counsel
C Nash (applicant)
V Lydiard (Crown/respondent)
Solicitors
Reimer Winter Williamson Lawyers (applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown/respondent)

File Number(s):

2009/187991

 Decision under appeal 

Date of Decision:

2010-09-03 00:00:00

Before:

Berman SC DCJ

File Number(s):

2009/187991

Judgment

1. McClellan CJ at CL: I agree with Hidden J.

1. Hidden J: The applicant, Damon Job, pleaded guilty in the District Court to a number of offences of a fraudulent nature arising from his employment at the Roads and Traffic Authority (RTA). He was sentenced to terms of imprisonment aggregating 5 years with an effective non-parole period of 3 years, commencing on 19 August 2010, when he was remanded in custody at the conclusion of the proceedings on sentence. He seeks leave to appeal against those sentences.

Facts

1. The applicant joined the RTA in 1998. In late 2003, he was appointed to the position of Operations Manager within the Traffic Management Centre. His duties included responsibility for "tidal flow" operations, which are the traffic arrangements designed to give extra lanes of traffic travelling in a particular direction during peak hour periods. He received training in anti-corruption, the RTA's Code of Conduct and the importance of declaring any conflict of interest which might arise.

1. However, he used his position corruptly to benefit a friend of his parents, Terry Steptoe. He himself received benefits from this pattern of corruption, which occurred between 1 January 2004 and 31 March 2006. Over that period Mr Steptoe received about $300,000, of which the applicant was paid $106,500 as a reward for his corrupt activities.

1. There is no need to describe the offences in any detail. Mr Steptoe operated a company named Advanced Traffic Solutions which, apparently, provided services necessary for the RTA's tidal flow activities. Late in 2003, the RTA called for tenders for work at Mays Hill. The applicant knew that Mr Steptoe was in financial difficulty and suggested that he put in a tender. Eventually, the RTA awarded his company the work and a contract was entered into.

1. Put shortly, after that contract expired Mr Steptoe's company continued to provide invoices to the RTA for work which was not done. This occurred on seven occasions, and on each occasion the applicant certified that work had been completed satisfactorily and that the invoice should be paid. This fraudulent activity took place in the second half of 2005, the amount involved being $93,632. The applicant was rewarded by receiving payments from Mr Steptoe.

1. This gave rise to seven charges of obtaining a benefit by deception, pursuant to s 178BA(1) of the Crimes Act 1900, and a charge of corruptly receiving a benefit, pursuant to s 249B(1) of the Act. The former charge carries a maximum sentence of imprisonment for 5 years, and the latter a maximum of imprisonment for 7 years.

1. Between late 2004 and early 2006, the applicant contracted tidal flow work at Lane Cove to Mr Steptoe's company without attending to any of the processes required by the RTA. For this he again received a benefit, which was the subject of a further charge under s 249B of the Crimes Act .

1. Over the period between late 2003 and May 2005, Mr Steptoe's company invoiced the RTA for the supply of "candy bars", which are the striped plastic metal tubes placed in sockets in the road for the purpose of tidal flow operations. The invoices totalled a little over $93,400. The applicant approved them for payment despite the fact that no such candy bars had ever been supplied. The benefit he received from this also led to a charge under s 249B.

1. The final set of charges related to Rail Corp "shutdowns". This expression refers to the situation where train services are suspended while maintenance work is carried out and buses are provided for the passengers who would otherwise have travelled by train. This process requires additional services, such as the creation of special event clearways. For that purpose, Rail Corp must co-ordinate the shutdowns with the RTA.

1. The applicant and Mr Steptoe's company were also involved in this activity. Put shortly, the fraudulent conduct was this. The proper procedure was that the State Rail Authority should have paid Mr Steptoe for the work the company did. The RTA should then have invoiced Mr Steptoe, and Mr Steptoe should have paid the RTA for the work relating to the shutdowns. The applicant should have made arrangements for the RTA to have invoiced Mr Steptoe, but he did not. The result was that the RTA itself carried out work in relation to the special event clearways, but the State Rail Authority paid Mr Steptoe for that work. The payments, over the period between January 2004 and February 2006, amounted to a little over $197,700. This led to four further charges under s 178B(1) of the Crimes Act , and a further charge under s 249B(1) for the benefit which the applicant received.

1. Mr Steptoe was also charged, and at the time the applicant was sentenced he was awaiting trial in the District Court. As will be seen, the applicant undertook to give evidence against him. Subsequently, however, Mr Steptoe pleaded guilty.

1. The sentencing judge noted that the applicant had performed "many separate acts of criminality", for which he was paid, over a substantial period. Mr Steptoe was the major beneficiary of these offences, but the applicant also profited from them. They were committed out of greed, not need, and constituted a breach of the trust placed in the applicant as a public servant.

1. His Honour also noted that there was significant overlap between the offences under s 178BA and s 249B, which he recognised in the structure of the sentences which he passed. For each of the seven charges under s 178BA relating to the Mays Hill tidal flow activities, he sentenced the applicant to concurrent fixed terms of imprisonment for 18 months, to commence on 19 August 2010. For each of the four charges under s 178BA relating to the Rail Corp shutdowns, he also imposed concurrent fixed terms of imprisonment for 18 months but directed them to commence on 19 August 2011. Finally, for the four charges under s 249B, he imposed concurrent terms of imprisonment for 3 years with a non-parole period of 1 year, to commence on 19 August 2012. Thus, as I have said, the overall sentence was imprisonment for 5 years with an effective non-parole period of 3 years.

Subjective case

1. The applicant is now 42 years old. He has no criminal history of any significance. He is married with two children. He had a difficult childhood, having been brought up in an environment of financial disadvantage and having been the victim of sexual assault between the ages of 6 and 9. Although he was clever, he did not pursue a university education. He joined the police force, where his work was primarily concerned with traffic management. It was against that background that he secured his position with the RTA.

1. He gave evidence in the sentence proceedings, and the trial judge found him to be completely frank about the offences and to be genuinely remorseful. Moreover, he had assisted the authorities by making a statement to ICAC investigators and had undertaken to give evidence against Mr Steptoe. His Honour considered that that evidence would be "particularly valuable." He had entered early pleas of guilty, and his Honour recognised those pleas and his assistance to the authorities by a discount of sentence of 40%. His Honour found that he was unlikely to commit offences of this kind in the future.

1. The applicant was suffering from mental illness when he committed the offences. He also gave evidence that he intended to repay the money which he corruptly received. These two matters are the subject of grounds of the application, and I shall consider that material, and his Honour's approach to it, when dealing with those grounds.

The application

1. Eight grounds of the application were filed, but at the hearing the fourth of them was abandoned.

Grounds 1, 2 and 3 - sentence discount

1. The first three grounds can be dealt with together. They relate to his Honour's combined discount for the applicant's pleas of guilty and his assistance to the authorities. It was submitted that, in arriving at that discount, his Honour had conflated the applicant's remorse with his pleas of guilty and his assistance. It was also submitted that the discount failed adequately to reflect the value of the assistance offered.

1. The argument that the discount was intended to embrace the applicant's remorse as well as his pleas of guilty and assistance to the authorities derived from a passage in the remarks on sentence. After finding that in his evidence the applicant had not attempted in any way to minimise the extent of his wrongdoing, his Honour said:

"I am satisfied that the offender is remorseful for what he has done, not only because he will suffer and not only because his family will suffer too, but because he now recognises the significant impact that his wrong doing has had upon public perceptions of bodies such as the RTA.

...

That attitude can seen not only in what the offender said but in what he has promised to do. His co-offender, Mr Steptoe, is due to stand trial later this year. The offender has undertaken to assist the authorities by giving evidence against Mr Steptoe. That evidence will be particularly valuable and so I will impose upon the offender a sentence which is forty per cent less than it would have been in the absence of such assistance and his early pleas of guilty."

1. There is clear authority that remorse should not itself be the subject of a quantified discount of sentence, nor should it be a component of such a discount: R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1, at [32]. Counsel for the applicant, Ms Nash, submitted that the quoted passage from the remarks demonstrates that his Honour made the applicant's remorse a component of the discount he expressed.

1. I do not read the passage in that way. From the last sentence quoted it is clear enough that his Honour was confining the discount to the applicant's pleas of guilty and his assistance. Indeed, immediately after the quoted passage his Honour continued:

"The offender is entitled to rely significantly upon his demonstrated remorse, his assistance, the unlikelihood that he will commit offences of this nature in the future as well as the circumstance that his depression reduced his ability to reason about the wrongfulness of his misconduct."

1. While his Honour referred to the applicant's assistance in that sentence, it is clear that his remorse was being taken into account, along with his good prospects of rehabilitation and his depressive condition, as a favourable factor in his subjective case, but not as a component of the quantified discount. That his Honour referred to assistance in that passage conveys no more than his recognition of the inevitable overlap between remorse and assistance to the authorities: R v Gallagher (1991) 23 NSWLR 220, at 228.

1. As to the adequacy of the discount insofar as it was intended to reflect the applicant's assistance, Ms Nash noted his Honour's observation that his evidence against Mr Steptoe would be particularly valuable. In oral argument, she said that it might be inferred that that evidence was material to Mr Steptoe's decision to plead guilty. His Honour saw a risk that the applicant may have to serve some of his sentence on protection, "he being a former police officer and a person who will be giving evidence for the prosecution." He emphasised, however, that he was speaking only of a risk, and that it was impossible to say whether it would be necessary for any part of a sentence to be served in that way and, if so, whether it would involve conditions of custody more difficult that those faced by the general prison population.

1. Ms Nash referred to R v M [2005] NSWCCA 224, also a sentence appeal in which the adequacy of a combined discount of 40% for plea of guilty and assistance was challenged. Buddin J, with whom James and Rothman JJ agreed, referred at [21] to R v Pang (1998) 105 A Crim R 474, in which Wood CJ at CL noted that the discount "customarily given in this State for assistance" has ranged between 20% and 50%. Buddin J added that it was not clear whether that range took into account "the interplay between a plea of guilty and assistance to the authorities."

1. Buddin J concluded that, in the circumstances of that case, an overall discount of 50% was appropriate. However, that was a case of commercial drug supply, in which the applicant had given assistance to the authorities leading to a person higher up in the supply chain being charged. The applicant had been threatened and assaulted as a result of providing that assistance. The sentencing judge found that he held "realistic fears for his safety, fears that are shared by the police involved in this matter": see the judgment of Buddin J at [12].

1. Broadly speaking, the same is true of three cases to which Buddin J referred at [22] - [26], each of them a serious drug case in which the offender had provided assistance to the authorities at significant personal risk and in each of which this court held that a combined discount in excess of 50% was appropriate. These were R v NP [2003] NSWCCA 195, R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.

1. Clearly, the present case is not of that kind. There is no evidence of any threat to this applicant's personal safety. As I have said, while his Honour acknowledged the risk that he may have to spend part of his sentence in protection, there was no evidence that that would be the case and, in any event, no evidence whether his being on protection would adversely affect the conditions of his custody.

1. The Crown prosecutor in this court referred us to R v Sukkar [2006] NSWCCA 92, 172 A Crim R 151, in which Howie J said at [5]:

"In my opinion discounts for a plea and assistance of more than 40 percent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population."

In the same case Latham J said at [54]:

"While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender."

McClellan CJ at CL expressed his agreement with the judgments of both Howie J and Latham J.

1. These observations are a guide to the exercise of a discretion but, of course, they are in no sense prescriptive. It is trite to say that the discretion is one to be exercised in the light of the facts of the case at hand. The combined discount arrived at in the present case was clearly within the proper exercise of that discretion and, in my view, no error has been shown in his Honour's approach.

1. These grounds are not made out.

Ground 5 - Restitution

1. This ground complains that his Honour failed to take into account the applicant's offer to make restitution and the hardship that that would entail.

1. In his evidence the applicant promised to repay the money which he had received, $106,500. To do so he would have to sell an investment property, as well as the family home. His Honour described the sale of the investment property as "hardly any hardship to him," but noted that the sale of the family home would leave his wife and children living in rented accommodation. His Honour described this hardship as not "in any way unusual" but accepted that the applicant would have to serve his sentence "in the knowledge that his wrongdoing has led to his wife and children having to leave the family home behind."

1. In the event, his Honour ordered that the amount received by the applicant be repaid, noting that that would mean that the properties would have to be sold. His Honour added:

"This is not a matter of mitigation at all. I note that the offender's misconduct caused a larger loss than he is willing to repay and, in any case, it is not a matter of mitigation that reparation is paid. It is an aggravating factor if it is not."

1. While noting that his Honour had ordered the payment of compensation, Ms Nash relied upon the applicant's voluntary undertaking to make restitution by selling the family home and the investment property. In fact, at the time of the sentence proceedings he had put both properties on the market. Apart from the applicant's remorse, she argued, this was a mitigating circumstance of itself.

1. In R v Phelan (1993) 66 A Crim R 446, the offender had defrauded his employer of a considerable sum of money. Before he was sentenced he had made full restitution by selling the home in which he had lived with his mother (and in which his brother and sister also had an interest).

1. Delivering the leading judgment, Hunt CJ at CL said at 448:

"In many of these cases, some emphasis has been placed upon the fact that the amount involved has voluntarily been repaid, but in my view it would be wrong to interpret those cases as supporting any proposition that an offender is able to purchase mitigation. Where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation. Otherwise, in my view, it is more a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation when the loss has simply been made good. In this case, there was considerable sacrifice - not only on the part of the applicant but also on the part of his family."

Presumably, it is the second last sentence in that passage which was the source of his Honour's observation in the present case that the failure to make reparation was an aggravating factor.

1. In Phelan , both Smart and James JJ agreed with the Chief Judge. However, on the question of restitution Smart J added (at 450):

"I regard restitution as an important factor in this type of case, and I would not wish to restrict the use which could be made of that. So much depends on the circumstances of the case."

1. In R v Conway [2001] NSWCCA 51, 121 A Crim R 177, an offender who had defrauded the Social Security system had paid back about half of the money she had obtained by the time she appeared for sentence, and was prepared to sell her home, if necessary, to raise the money outstanding. The leading judgment was given by Heydon JA (as he then was), with whom Bell J and Smart AJ agreed. Phelan was referred to: [10]. Heydon JA held that the sentencing judge had correctly given weight to the reparation which the offender had made and which she intended to make: [17] ff. In particular, his Honour noted that, against the background of a hard life, it would be "a real sacrifice" for her to be compelled to sell the home where she had lived and with which "she presumably had some happy associations ...": [22].

1. A different conclusion was reached in Stratford v R [2007] NSWCCA 279, another case in which the offender had defrauded his employer. He had been able to make full reparation prior to sentence from the proceeds of the settlement of a civil action, together with an amount withdrawn from his superannuation benefits, an amount borrowed from his wife and further borrowings secured against his home. McClellan CJ at CL, with whom Harrison and Fullerton JJ agreed, after referring to Phelan , said at [24]:

"In the present case the applicant was able to provide the funds to repay the stolen monies from within his own and his family's resources. Although the consequence is that he must carry debts he has not been required to sell his home or, so far as the evidence discloses, suffer a very significant change in his family's standard of living."

1. It seems that the consideration of this issue in Stratford focused upon remorse as a mitigating factor, as elucidated in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 as follows:

"(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) ..."

At [25], McClellan CJ at CL noted that the sentencing judge had been mindful of that provision and had "correctly identified that the extent of the remorse was informed by the sacrifice which the applicant had made." That being so, his Honour found no error in the judge's approach to the issue of restitution.

1. This brings me, then, to the case upon which Ms Nash placed particular reliance: Thewlis v R [2008] NSWCCA 176, 186 A Crim R 279. The facts of that case were very different from the present case and from the other decisions to which I have referred. It involved an offence of violence, the offender having mounted a serious attack with a knife upon another man. However, immediately after doing so, he took steps to ensure that the victim received medical treatment. The issue in the appeal was whether that conduct sounded in mitigation of sentence.

1. The leading judgment was given by Simpson J, with whom Spigelman CJ and Price J agreed. Her Honour noted that the offender had promptly taken "steps to ameliorate the consequences" of his attack: [39]. She concluded that conduct of that kind, while not reducing the objective gravity of the offending, warranted "some consideration in mitigation of sentence": [43].

1. Importantly for present purposes, her Honour said that the offender's conduct went "well beyond throwing light on remorse or contrition, which were also well established": [38]. She described it as "something which ... the applicant was entitled to have taken into account not as a mitigating factor catalogued in s 21A(3), but as a particular, and an unusual, circumstance which may be called ameliorative conduct, justifying a measure of leniency on that particular basis:" [40].

1. Her Honour continued at [41]:

"The notion is not unique. There have been cases, such as property crimes, where leniency is justified because reparation has been voluntarily made prior to any charges being brought or anticipated. That is an appropriate analogy."

Her Honour then referred at [42] to New South Wales and interstate authority, including Phelan and Conway . Spigelman CJ, in a short concurring judgment, also referred to Phelan and, in particular, to the statement by Hunt CJ at CL that repayment may properly be taken into account by way of mitigation where "there has been a substantial degree of sacrifice involved ... ." The Chief Justice noted at [3] that that statement of principle had been subsequently applied in cases involving the fraudulent misappropriation of money, citing Stratford as one of them. His Honour continued at [4]:

"The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough."

1. Some of the observations in Thewlis , including those of the Chief Justice which I have quoted, must be understood in the unusual factual context of that case. What is important, however, is that voluntary reparation in property crimes was characterised as ameliorative conduct as Simpson J explained it. It was not seen merely as an incident of remorse, although clearly the two notions overlap. It was seen as a factor which might justify a measure of leniency in its own right.

1. In each of the cases to which I have referred the offender had made restitution, in whole or in part, at the time of sentence. That is not so of the present case. The Crown prosecutor submitted that that was a complete answer to this ground. That submission was founded upon the assumption that the focus of reparation is upon remorse as a mitigating factor, as expressed in s 21A(3)(i). The Crown prosecutor referred to the observation of Latham J in R v Cage [2006] NSWCCA 304 at [34] that "that mitigating factor is directed to reparation already made by the offender as at the time of sentence." However, in the light of the subsequent decision in Thewlis , the issue is not as simple as that.

1. In my view, his Honour did fall into error in rejecting out of hand the applicant's willingness to make reparation. Its significance may well have been diminished by the fact that no payment had yet been made at the time of sentence and, apparently, the applicant intended to repay only the amount which he had received. Nor could it be said that he had attempted restitution "prior to any charges being brought or anticipated," as Simpson J put it in Thewlis at [41]. That said, the same is true in the cases of Phelan and Conway , in both of which it appears that reparation was undertaken after the offender was charged.

1. Nevertheless, the applicant's undertaking to make reparation to the extent which he specified, and the steps he had taken to that end by putting the two properties on the market, were entitled to some weight in his favour. The hardship occasioned by the sale of the family home is not dissimilar to that identified in Phelan .

1. That being so, it is unnecessary to express a view about his Honour's assertion that failure to make reparation would be an aggravating factor. The observation of Hunt CJ at CL in Phelan that it is more a matter of aggravation when an offence has caused a loss which is effectively irretrievable should be approached with some caution. Since Phelan was decided in 1993 the expression "matter of aggravation" has become something of a term of art, thanks largely to the jurisprudence engendered by s 21A of the Crimes (Sentencing Procedure) Act. I doubt that the former Chief Judge was saying anything more than that, in determining sentence, an offence which has caused a loss which cannot be made good is likely to be viewed more seriously, but the extent to which reparation sounds in mitigation will depend upon the degree of sacrifice involved. The matter not having been argued before us, this is not the occasion to examine it.

1. This ground is made out.

Grounds 6 & 7 - Mental illness

1. These grounds are concerned with the manner in which his Honour approached evidence of the applicant's mental illness. Reports by a psychiatrist and a psychologist concluded that he was suffering from depression at the time of the offences and, in addition, the psychologist diagnosed post-traumatic stress disorder.

1. I have referred to evidence that the applicant was brought up in circumstances of financial difficulty, and that he was the victim of sexual abuse at a young age over a period of 3 years. In a comprehensive history to the psychologist, he said that he was ridiculed at school because of his family's poverty, which was evident from the standard of his clothing. He also said that his father would inflict corporal punishment upon him, perhaps venting his frustration at his lack of employment, and that he would often be fearful of him.

1. The sexual abuse was perpetrated by a swimming coach. He told the psychologist that he was fearful of disclosing it because of his father's unpredictability and propensity to violence and that, indeed, he had not disclosed it to anyone until his consultation with the psychologist in preparation for the sentence proceedings. In addition, in 2002 allegations were made against him that he had received sexual favours for appointing people to various positions within the RTA. He was exonerated after an investigation of those allegations, but during that investigation he received a death threat from one of the complainants.

1. Against the background of this material, the psychologist diagnosed post-traumatic stress disorder with comorbid depression. He concluded that in committing the offences the applicant had "acted with a sense of disregard for the consequences of his actions", reflecting "a form of self-abuse", with the applicant feeling that he would end up going to prison or, if not, would probably end up dead. The psychiatrist diagnosed depression, but not post-traumatic stress disorder. He concluded that the applicant "committed an impropriety while depressed, and it is therefore possible that his judgment may have been affected in ways that would not have been the case if he were not suffering from a mood disorder at that time."

1. As I have said, one of the matters upon which his Honour found the applicant was entitled to rely was "the circumstance that his depression reduced his ability to reason about the wrongfulness of his conduct." His Honour continued:

"On the other hand, it remains the case that his offending was seriously criminal, involving many separate acts of criminality over an extensive period of time. There is a very important need for a sentence to be imposed upon the offender which reflects the principles of general deterrence. That remains the case even though the offender was depressed at the time that he committed these offences. Although the offender was depressed, the decision to assist his friend and also himself in various corrupt ways was one which even a depressed person was fully aware, involved serious wrongdoing."

1. Ms Nash submitted that in that passage his Honour failed to have regard to the principles concerning the bearing of mental illness upon general deterrence, and she complained that nowhere in the remarks on sentence did his Honour refer to the post-traumatic stress disorder diagnosed by the psychologist.

1. Dealing first with the issue of the post-traumatic stress disorder, that was a diagnosis arrived at by the psychologist but not the psychiatrist. I would think that diagnosis is more the province of a psychiatrist than of a psychologist. While his Honour did not refer to it, he did set out in his remarks the stressors in the applicant's life to which the psychologist attributed it. In any event, the precise diagnosis of the applicant's mental illness at the relevant time was not to the point. What was significant was the evidence, which his Honour accepted, that his judgment in committing the offences was affected by mental illness.

1. This is not the occasion to review the authorities on the bearing of mental illness upon the need for general deterrence, which are familiar. The principles governing the relevance of mental illness to sentence were summarised by McClellan CJ at CL, with reference to the authorities, in DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1, at [177] - [178]. What is relevant for present purposes is that the fact that a person whose judgment is affected by mental illness in committing an offence retains an awareness of the wrongfulness of his or her conduct is relevant to the need for the sentence to reflect general deterrence, but is not determinative of that question. The circumstances of such a case will often require that general deterrence, while still significant, should be afforded less weight.

1. R v Fell [2004] NSWCCA 235 was a Crown appeal in which one of the grounds of appeal was expressed as follows:

"The Respondent's psychiatric condition was not such as to preclude knowledge of the gravity of his actions and hardly lessened the requirement of general deterrence."

Having set that ground out in the judgment, the court (Giles JA, Hulme and Adams JJ) observed at [26]:

"While the first element in this ground may be accepted, the second does not follow. As Gleeson CJ said in Engert (1995) 84 A Crim R 67 at 70, 'The circumstance that an offender suffers from a mental disorder may well be of considerable relevance in a number of respects to the sentencing task.' As a passage quoted by his Honour on the following page makes clear, one of these respects is that such an offender is not an appropriate medium for making an example to others. Others were referred to by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [254]:-

'The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.'"

1. Put shortly, Ms Nash's submission was that the passage from the remarks which I have quoted conveys that his Honour gave full weight to the need for general deterrence despite his finding that the applicant's depression reduced his ability to reason about the wrongfulness of his conduct. She argued that less weight should have been placed upon general deterrence in the light of that finding.

1. I have given this submission careful reflection. On the face of it, Ms Nash's argument about the effect of the quoted passage is sound. What his Honour said could convey that he treated the applicant's depression as a matter which lessened his moral culpability but did not in any way diminish the need for the sentence to reflect general deterrence. On the other hand, it could mean that, although general deterrence should be afforded less weight because of the applicant's impaired judgment, his persistent dishonesty was such that it remained a significant consideration.

1. That conclusion would have been consistent with authority, of which this very experienced sentencing judge would have been aware. As has often been said in this court, it is important to remember the pressure under which District Court judges work when dealing with sentence matters and it is inappropriate to subject their remarks on sentence to fine analysis. In the event, I find it unnecessary to decide this ground because, error having been established in relation to the question of restitution, it is open to this court to re-sentence the applicant in the exercise of its own discretion.

Ground 8 - Manifestly excessive?

1. As the court is to re-sentence, it is unnecessary to decide the last ground, that the aggregate sentence is manifestly excessive. However, given such pattern of sentence for offending of this kind which emerges from the cases to which I am about to refer, I am satisfied that it is heavier than was called for in the circumstances. It is reasonable to view the aggregate sentence of imprisonment for 5 years as the product of his Honour's discount of 40% for the applicant's pleas of guilty and assistance. Viewed in that way, the starting point was an overall sentence of 8 years and 4 months.

1. Ms Nash referred us to a number of cases of a broadly similar kind decided in this court between 1991 and 1994. As the Crown prosecutor pointed out, those cases are too old to be a reliable guide to current sentencing patterns. However, she also referred to two more recent cases.

1. One was Fell (supra), which was decided in 2004. That offender had pleaded guilty to defrauding his employer of a large sum of money by a series of offences under s 178BA of the Crimes Act , committed over a period in excess of one year. He was dealt with by a suspended sentence of 22 months. In dismissing the Crown appeal, this court found that sentence to be within the legitimate bounds of discretion. However, that offender had a particularly strong subjective case and there was substantial delay in the prosecution against him being launched.

1. The other case was R v Blundell [2008] NSWCCA 63, 70 NSWLR 660. That offender was an insurance broker who defrauded his clients of a substantial sum of money over a period of several months. He pleaded guilty to three charges of fraudulent misappropriation (s 178A of the Crimes Act , carrying a maximum sentence of imprisonment for 7 years). His appeal against that sentence was unsuccessful. In his case there had been very substantial delay before he came to be sentenced, during which period he had made significant steps towards rehabilitation. Moreover, it was necessary for the sentencing judge to maintain relativity between his sentence and a lenient sentence which had earlier been imposed by a different judge upon his brother, who was his partner in the business and who had been involved in similar fraudulent activity.

1. These two unusual cases are of no assistance in assessing the appropriate sentence in the present case. However, some assistance is forthcoming from the judgment of McClellan CJ at CL in Stratford (supra). As I have said, that was yet another case of an employee defrauding his employer of a large sum of money, on this occasion over a period of about three years. The offender pleaded guilty to a number of charges of fraud by an officer of a company (s 176A of the Crimes Act , carrying a maximum sentence of imprisonment for 10 years). His appeal against an overall sentence of 3 1/2 years with a non-parole period of 2 years was dismissed.

1. In the course of his judgment, at [33] ff, the Chief Judge briefly reviewed twelve decisions of this court in what might loosely be described as serious fraud cases. One of them was decided in 1993, but the others were between 1997 and 2005. All of them involved multiple charges, the majority also being under s 176A. The periods over which the offences were committed ranged from a matter of weeks to several years. In one case the amount involved was $80,000, but in the others the amounts were comfortably into six figures or, in a few cases, millions. In some cases there had been reparation to a greater or lesser degree, and in some the offender had been suffering from depression.

1. Half of these cases were Crown appeals. In all but three the offenders had pleaded guilty. Significantly, in none of them had there been assistance to the authorities. Sentences, either affirmed by this court or imposed by it, ranged from 2 years to 5 years. Five year sentences were imposed in two cases, but in the remainder sentences were between 2 years and 4 years. Non-parole periods ranged between 18 months and 3 years and 3 months, the majority being 18 months or 2 years.

1. The Crown prosecutor did not take us to any comparable cases. She referred us to R v Hawker [2001] NSWCCA 148, another serious fraud case, in which Wood CJ at CL said at [17] - [18]:

"[17] There is a danger in endeavouring to extract a 'range' from a limited group of decisions on appeal, or from sentencing statistics. Some of the cases here selected by the applicant were Crown appeals in which the principle of double jeopardy or that relating to special discretion attaching to Crown appeals, were applicable. Others were cases involving quite different objective and subjective considerations, as well as differing sums of money. Some involved offenders such as solicitors or others holding fiduciary office or positions of trust, and others of which involved employees of no great seniority. In some instances, the offences were relatively simple and of short duration, and in other cases they were complex and prolonged.

[18] The need for care in attempting any such comparison as that suggested here was recently underlined by Spigelman CJ in Slater [2001] NSWCCA 65 at [50] - [52]."

1. Hawker was a two judge decision. However, apart from the fact that they carry the authority of the former Chief Judge, those observations have been cited in subsequent decisions by three judge benches: see, for example, R v Martin [2005] NSWCCA 190, per Johnson J (with whom Hunt AJA and Hulme J agreed) at [56]. I bear that admonition in mind when having regard to the schedule of cases referred to by McClellan CJ at CL in Stratford (of which Martin was one). It is trite to say that each of these cases turned on its own facts, and in none of them were the charges the same as those in the present case. Nevertheless, such pattern as does emerge from them fortifies me in my view that a lesser aggregate sentence is appropriate in the present case.

1. In my view, the appropriate starting point for the overall sentence is imprisonment for 7 years. His Honour's discount of 40% for the pleas of guilty and assistance to the authorities, which I would adopt, would lead to a term a little over 4 years, which I would round off at 4 years. Finding special circumstances, as his Honour did, I would structure the sentences in such a way as to set an effective non-parole period of 2 years.

1. I would grant leave to appeal and allow the appeal. I would quash the sentences passed in the District Court and, in lieu, would sentence the applicant as follows:

• On each of the charges of obtaining a benefit by deception relating to the Mays Hill tidal flow activities, a fixed term of imprisonment for 12 months, dating from 19 August 2010 and expiring on 18 August 2011;
• On each of the charges of obtaining a benefit by deception relating to the Rail Corp shutdowns, imprisonment for a fixed term of 12 months, commencing on 19 February 2011 and expiring on 18 February 2012;
• On each of the charges of corruptly receiving a benefit, imprisonment for a non-parole period of 1 year, commencing on 19 August 2011 and expiring on 18 August 2012, and a balance of term of 2 years, commencing on 19 August 2012 and expiring on 18 August 2014.

I would direct that the applicant be released on parole on 18 August 2012.

1. Grove AJ: I agree with Hidden J.

1. **********

Decision last updated: 23 December 2011