Judgment suppressed
[2007] WASCA 25
•5 FEBRUARY 2007
ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 25 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:83/2006 | 24 OCTOBER 2006 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 4/02/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL WAYNE ANDERSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Very many charges of fraud Late guilty plea Offences committed while on bail |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Anderson v The Queen (1996) 18 WAR 244 Chivers v The State of Western Australia [2005] WASCA 97 R v Quirey [2001] QCA 64 R v Sivov [2000] VSCA 7 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 25 CORAM : WHEELER JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
File No : IND 689 of 2004
Catchwords:
Criminal law and procedure - Sentencing - Very many charges of fraud - Late guilty plea - Offences committed while on bail
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Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal dismissed
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr D R Love
Respondent : Mr A L Troy
Solicitors:
Appellant : Dean R Love
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson v The Queen (1996) 18 WAR 244
Chivers v The State of Western Australia [2005] WASCA 97
R v Quirey [2001] QCA 64
R v Sivov [2000] VSCA 7
(Page 3)
1 WHEELER JA: This is an appeal against sentence. The appellant pleaded guilty in relation to all matters. The plea in respect of some of those matters was entered on 6 February 2006, and in relation to others on 29 March 2006. In total, they were one count of conspiracy to commit fraud, 54 charges of fraud (35 being counts on an indictment and 19 arising on a s 32 notice), one count of forging and one count of uttering.
2 Those charges arose in the following way. They involved the appellant and three co-offenders named Marcel, Archer and Murdoch. It appears that the source of the idea, the knowledge and expertise by which the frauds could be executed, and the supplier of various fabricated documents, was Marcel. The learned sentencing Judge accepted that Marcel was the mastermind, although he took the view that the appellant was a principal in the planned conspiracy.
3 So far as the appellant was concerned, it seems that the scheme at the time he entered into it was relatively modest, but then expanded into a much more ambitious enterprise. The appellant met the co-offender, Marcel, in prison, when the appellant was serving a sentence for previous fraud charges, and they struck up a friendship. After he was released from prison, he met Marcel again at a party. They agreed to catch up. At a meeting in a cafe, Marcel revealed to the appellant that he could obtain false identity documents that could be used to obtain credit cards, which in turn could, of course, be used to obtain property and money. He offered to supply the appellant with fabricated papers. The documents included falsified birth certificates, driver's licences, driver's licence renewals, and rate notices.
4 The appellant would usually apply for a bank account, or for credit cards, via the Internet, and would supply identity details that could be verified by reference to the fabricated documents purchased from Marcel. The appellant also produced false payslips, employment confirmation letters and Australian Taxation Office assessment advices to evidence his creditworthiness. Marcel's name was often used as a contact name on the employment confirmation letters. In this way, the appellant was able to open bank accounts, obtain credit cards and, in one instance, obtain finance approval to purchase a BMW.
5 The first fraud offence, count 2 on the indictment, was committed on 24 July 2002, approximately one month after the appellant was released on parole from a 21-month imprisonment sentence for fraud. On this date, the appellant used the process described above to fraudulently
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- deceive an employee of the Bank of Western Australia into establishing a Visa credit card with a credit limit of $10,200 in the name of Michael James Williams. The appellant gave his occupation as a sales estimator employed by a firm, Prestige Coating and Restorations. He provided a birth certificate and driver's licence renewal and a payroll advice in the name of Mr Williams, purporting to be issued by the firm. The documents were false. The appellant did occasionally work as a salesman for the firm; however, he did not earn anywhere near the amount stated on the payslips. The birth certificate and driver's licence renewal were purchased from the co-offender Marcel. The appellant fabricated the payslips himself. After receiving the credit card, the appellant used it to obtain cash advances and ran the account up to the amount of $11,603.95.
6 Counts 3 to 36 on the indictment all involved similar acts to establish credit cards (counts 3, 7 - 12, 17, 19, 21, 24, 28, 29, 31, 32, 35, 36), bank accounts (counts 4, 6, 13 - 16, 18, 20, 22, 23, 25 - 27, 30, 33, 34) or finance approval (count 5). A number of different banks, names and false documents were used by the appellant throughout the various counts.
7 Between mid-December 2002 and January 2003, the success of the operations to that point encouraged the appellant and Marcel to expand the scope of the scheme. Marcel proposed obtaining a large number of credit cards at the same time and showed the appellant a spreadsheet with the false identities and details to be used. Marcel and the appellant agreed that the appellant would register a number of companies or business names and that they would create four or five false identities linked to each false business. Each identity could then be used to approach a couple of banks. His Honour said that some 10 false identities were to be created and used, although my review of the papers suggests there were more. Marcel was responsible for creating the false documents. The appellant was to attend the financial institutions to obtain the credit cards and open the loan accounts. The appellant and Marcel also agreed that the appellant would open a variety of post office boxes as reception points for correspondence and arrange redirection notices to the post office boxes from the addresses to be used by the false identities, which the appellant did. Marcel and the appellant also decided to create a false identity and obtain credit cards specifically for the purpose of raising "seed capital" for the extended scheme. This amount, about $10,000, was to pay for computer equipment and other expenses necessary to perpetrate the expanded fraud enterprise.
8 Marcel then recruited Archer to work full-time at Marcel's apartment over a four-week period to produce the necessary false documents, at
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- $1000 for each set of identity documents. The appellant would visit Marcel's apartment every day and would see Archer preparing the documentation. During this time it was the appellant's task to apply for the bank accounts and credit cards, which he would turn over to Marcel, who would draw cash from automatic teller machines.
9 The appellant believed that Archer was to be paid on a piecework basis of $1000 per identity. The appellant assumed that he and Marcel would split the rest after the payment of expenses, with the credit cards being run up to their maximum credit limit. The learned sentencing Judge found that "[the appellant] and Marcel were to split the net profits 50, 50".
10 Pursuant to the conspiracy, the appellant and Marcel obtained credit cards and established loan bank accounts. The offences involving the appellant, Marcel and Archer ended on 24 March 2003, when the appellant was arrested at the Challenge Bank branch in Floreat while attending to collect a Challenge Bank MasterCard in a false name.
11 The appellant's offending extended over a period of about 10 months, from May 2002 to late March 2003. The extent to which the appellant had defrauded financial institutions up to the time of his arrest was $73,566.96. He also obtained a motor vehicle worth $25,942, which was later recovered.
12 The potential for defrauding financial institutions under the conspiracy, as indicated by the limits on credit cards obtained, was $217,500. There were also computer records which indicated that further applications for credit were to be made.
13 The appellant was in custody for five days before being released on bail. Whilst on bail the appellant committed the 21 offences the subject of the s 32 notice.
14 The s 32 notice offences involved: making an on-line application for a BankWest Visa credit card account and providing false information; using that, and another, falsely obtained credit card 18 times to withdraw money; forgery; and uttering (the appellant changed his name from Michael Wayne Anderson to Michael James Andersen by deed poll to obtain employment at a bank and submitted a falsified birth certificate).
15 The remaining co-offender, Murdoch, was charged with conspiracy to commit fraud and five counts of fraud. He claimed he had never met the appellant. Murdoch committed offences at the behest of Marcel. Murdoch commenced his offending on 16 July 2002, obtaining a credit
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- card with false information provided by Marcel and withdrawing about $2939. Murdoch also obtained other credit cards, opened bank accounts, obtained car loans and finance, as charged in the other four counts. Murdoch's offences resulted in some $10,000 in cash not being recovered, a vehicle of $17,000, which was later recovered, and another vehicle of $20,000 which was intercepted before being taken.
16 His Honour structured the appellant's sentences as follows:
(1) Count 1 (conspiracy (group 1)): 16 months' imprisonment.
(2) Counts 2, 3, 4, 9 and 17, (counts in relation to which the benefits of the fraud were for the appellant alone) (group 2): 16 months' imprisonment for each count within the group.
(3) Remaining indictment counts (group 3): 16 months' imprisonment, concurrent with each other.
(4) Two of the charges on the s 32 notice, relating to obtaining a credit card using false identification papers and a benefit of $10,000 (group 4): 16 months' imprisonment, concurrent with each other.
(5) Individual transactions on the s 32 notice, involving obtaining a benefit of at least $1000 (group 5): 8 months' imprisonment, concurrent.
(6) Two of the charges on the s 32 notice, relating to obtaining a position of employment with one of the banks the appellant had defrauded (group 6): 8 months' imprisonment, concurrent.
(7) Remaining counts (group 7) on the s 32 notice involving amounts less than $1000: 4 months' imprisonment, concurrent.
17 His Honour said that the sentences referred to above amounted to a total effective sentence of 5 years and 4 months, after the one-third reduction required by the Sentencing Legislation Amendment and Repeal Act 2003 (WA), but before the discount for co-operation was taken into account. It is not clear how that could be so, if, as his Honour's sentencing remarks suggested, those sentences which were made cumulative were cumulative, not upon each other, but only upon count 1. I assume that his Honour's intention was to make four of the 16-month groups of sentences referred to above cumulative upon each other, giving 64 months.
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18 (This paragraph was suppressed by order of the Court.)
19 I turn now to the grounds of appeal. Leave was granted in respect of two of them, and the application for leave in respect of the others was referred to this Court, to be heard at the hearing of the appeal. I deal first with the two grounds in respect of which leave was granted.
Ground 1
20 This ground complains that his Honour erred in not giving "any obvious or specific" credit for the early plea of guilty.
21 There was no early plea of guilty. There was a plea of guilty, and there was an early indication that there would be a plea of guilty, but the appellant later entered, and maintained for some considerable time, a not guilty plea. The summary of relevant events, so far as they can be discerned, is as follows. The appellant, having been arrested in relation to the first batch of offences, was released to bail on 28 March 2003. While on bail, he committed the offences giving rise to the s 32 notice. In November 2003, he was charged with two summary fraud matters and granted bail. In December 2003, he was charged with a further 19 fraud matters. He was then denied bail, and remanded in custody.
22 (This paragraph was suppressed by order of the Court.)
23 The appellant's first appearance in the District Court was on 2 April 2004. It was adjourned on the State's application because no indictment was presented.
24 (This paragraph was suppressed by order of the Court.)
25 On 2 August, the appellant was again before the Court, but the matter was adjourned, apparently by mutual consent. On 7 October, the matter came before the Court again and the appellant requested a delay of three months. He did not wish to be arraigned because his ex-wife had had a stroke and he wished to make arrangements for his children. At that stage, the prosecution was still anticipating a guilty plea, and the prosecutor stated, "If the matter is put off ... whilst this was not a fast-track plea, the delay to this point has not been the accused's - of his making ... ".
26 However, on 2 December 2004, the appellant was arraigned and entered a plea of not guilty. He says in an affidavit that he did so because his counsel was not available on that day and that counsel temporarily representing him, when advised that he was to be arraigned, suggested
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- that he enter a plea of not guilty and that it would be "sorted out" later. The matter was not sorted out, however, for a considerable period of time. In May 2005, at a status conference, the appellant was in the process of changing lawyers and requested time to consider the brief. In July 2005, counsel he had then engaged indicated she had not had time to read the brief yet. In October 2005, she appeared for the appellant in order to apply for a variation of bail. In November 2005, the appellant's solicitor indicated she had still not had an opportunity to consider the brief. In December 2005, the appellant's counsel confirmed that she was "fully instructed". The appellant applied to vary bail and that application was adjourned. In January 2006, the appellant's solicitor entered into correspondence with the DPP about witnesses for the forthcoming trial.
27 It was not until February 2006 - more than a year after the appellant's "holding" not guilty plea - that the appellant's solicitors and the DPP commenced discussions about a plea of guilty and, on 6 February 2006, the appellant entered a guilty plea.
28 (This paragraph was suppressed by order of the Court.)
29 The appellant's position may be very understandable, but the fact is that there was no plea entered at the earliest opportunity. Indeed, the plea was entered very late. Not all of the delays were of the appellant's making, but some were, and he maintained his plea of not guilty, in effect, because he wished to obtain the best possible "deal" for himself. While, as I have said, that is perfectly understandable, the result is that this does not appear to be the sort of plea of guilty which can be described as stemming from sincere remorse and a desire to facilitate the course of justice.
30 His Honour noted the fact of the plea of guilty. There is no reason to assume that he did not give a discount for it.
31 In my view, if this ground is to succeed, it can only do so because the appellant has made out the contention contained in ground 7, which is to the effect that the sentence as a whole is manifestly excessive. If the sentence is manifestly excessive when regard is had to the plea of guilty, it may be that the reason that is so is that an inadequate discount was given for that plea. However, as a ground of appeal standing alone, ground 1 cannot succeed for two reasons. The first is that it is predicated on the assumption that the plea was relevantly an "early" one, which it was not. Second, it seems to suggest that there was an error in the failure
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- to specify, or quantify, the discount which was given. That is not an error: Chivers v The State of Western Australia [2005] WASCA 97.
Ground 3
32 This ground asserts that his Honour erred in not taking appropriate account of the principle of parity of sentence between the appellant and his co-accused, Murdoch. Murdoch received a sentence of 9 months concurrent for the five counts of fraud, and a suspended sentence for conspiracy. It is alleged that the offences were committed in "very similar circumstances" to that of the appellant.
33 This ground cannot succeed. There are a number of significant differences between the circumstances of the appellant and Murdoch. Unlike the appellant, Murdoch was not a principal in any of the enterprises in which the appellant and Marcel engaged. Indeed, it is obvious from a reading of the transcript of the videotaped record of interview with Murdoch that his intellectual capacity is such that he is unlikely to have contributed anything at all to the planning of the offences. His cognitive function is said to have been affected by alcohol abuse; for whatever reason, his level of intellectual functioning is obviously low. He stood to gain much less from the offences than the appellant did. His sentencing was differently structured, in that he had already been sentenced for some individual instances of fraud, which were overt acts relating to the conspiracy. That would explain why there was no effective additional sentence in relation to the conspiracy in his case, as opposed to the appellant's. Murdoch appeared be genuinely remorseful. Further, unlike the appellant, Murdoch had not reoffended by committing offences of the same kind while on bail. Murdoch was sentenced in respect of a significantly fewer number of offences: five false credit applications, as against the appellant's 54.
Ground 2
34 This ground asserts that his Honour erred in failing to give significant weight and an appropriate discount for the appellant's assistance to the police and undertaking to give evidence. The discount of 2 years and 2 months was, in the context of the overall sentence, a significant one.
35 (This paragraph was suppressed by order of the Court.)
(Page 10)
Ground 4
36 This ground asserts that his Honour failed to take into account the very restrictive bail conditions placed on the appellant. However, this ground was but faintly pressed by the appellant's counsel. That is understandable, since the District Court had initially refused the appellant bail and, when he was released on bail, he had offended again. His solicitors suggested bail conditions which included not opening any bank account or applying to any financial institution for a credit facility, a residential condition, and a requirement to report three times a week to the police. Other conditions about not entering a bank, and a 10 pm to 6 am curfew seem not to have been suggested by the appellant's solicitors, but were moderate and appropriate in the circumstances. It does not seem to me that the conditions were so restrictive that they should be taken into account in any way in reduction of the appellant's eventual sentence. Further, the need for restrictive conditions was as a result of the appellant's own choice to further offend while on bail, and the fact that he was on bail, on those conditions, for a considerable period of time was due to his own failure to plead guilty at an earlier time.
Ground 5
37 This ground asserts that his Honour failed to give sufficient weight to the "level of threat" posed to the appellant by his co-accused, in particular by Archer and Marcel. This was a matter taken into account by his Honour. As I have noted, his view was that the appellant had placed himself at "considerable personal risk". The suggestion that the weight given to this circumstance was "insufficient" adds nothing to ground 2.
Ground 6
38 Ground 6 alleges that his Honour erred in the structure of the sentence. The appellant points out that the offences were grouped by his Honour. He also points out that, in relation to some groups, his Honour reduced the sentences imposed by 37.5 per cent, in order to take account of the factor of co-operation, while in relation to others the sentences were effectively reduced by 50 per cent. The appellant, not surprisingly, contends that the discount of 50 per cent should have been applied to all counts in order to maintain proportionality between them. However, in my view, it is clear from the way in which his Honour went about structuring the sentence that he approached the question of co-operation by determining the amount by which the overall sentence should be reduced, and reducing different groups of sentences in different ways in order to give effect to that conclusion. It may well have been
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- preferable to apply the same reduction in relation to each of the groups of sentences reduced. However, unless ground 7 can be made out, there is no reason to interfere with the individual sentences so as to apply the overall discount (which the appellant calculates at 40.63 per cent) to each of them.
Ground 7
39 This asserts that the sentence as a whole is manifestly excessive, taking into account all the circumstances.
40 The appellant does not point to a range of sentences which demonstrate this proposition. That is not surprising, since offending of this kind and on this scale is relatively rare. I return to that matter in a moment.
41 Looking at the offences overall, they were deliberate, systematic and planned. They were repeated. The scheme was an elaborate one. Significant amounts of money were obtained, and there was the potential to obtain a good deal more. The statutory maximum penalty for the conspiracy would be 3½ years' imprisonment, and those for each of the other individual charges 7 years' imprisonment. In those circumstances, the imposition by the learned sentencing Judge of a total effective term which, prior to the transitional provisions, would have equated to 8 years' imprisonment, does not appear, prima facie, excessive, even having regard to the plea of guilty.
42 As I have noted, offending on this scale is relatively rare. Further, where offences involving a significant period of time and/or a large amount of money are concerned, it is often the case that the offenders are first offenders, and of otherwise good character. The offending is often precipitated by a gambling problem, or some sudden and adverse change in the offender's circumstances. There are very few cases in which offenders come to be sentenced for fraud offences on this scale, against a background of prior offending of the same kind.
43 The two cases closest to the present which I have been able to find are both from other jurisdictions. In R v Sivov [2000] VSCA 7, the appellant was sentenced to a term of 4 years' imprisonment with a non-parole period of 3 years on a 14-count indictment primarily involving 13 counts of obtaining financial advantage by deception. He applied for credit in the form of credit card facilities and leasing facilities, and there was a pattern of offending involving false statements and false documentary evidence in support. The total value of the credit obtained
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- was approximately $630,000, over two years, although the amount actually lost by the financial institutions in question seems to have been roughly a third of that. The appellant had one prior conviction for an offence of fraud, about six years previously, and some of the offences were committed on a community based order relating to a different type of offence. However, the appellant had entered a guilty plea. His offending appeared to have been precipitated by a financial disaster suffered when a business he and his parents invested in had collapsed. The Victorian Court of Appeal considered that that term of imprisonment was by no means manifestly excessive.
44 In R v Quirey [2001] QCA 64, the appellant was sentenced to 5 years and 4 months' imprisonment, with eligibility for parole. That related to an indictment containing multiple counts; the majority were of fraud, but there were also breaking, entering and stealing offences, and other offences of dishonesty. The fraud was one which was described as systematic, and involved a considerable amount of money. It is not possible to discern the precise total, however the value of property involved in all the offences (including a number of stealing and receiving offences) seems to have been of the order of $140,000. The appellant in that case had a previous conviction for fraud and was on probation when those offences were committed. However, that appellant had a significant drug problem and was much younger than this appellant, being 28 years of age. Further, he had spent a considerable period of time in custody awaiting sentence, and as a result the sentencing Judge had discounted his sentence from the 6 years which he otherwise would have considered appropriate. It should be noted that the appeal did not attempt to challenge either the 6-year starting-point or the 5 years and 4 months actually imposed, being concerned only with the non-parole period.
45 There were some mitigating factors in the present appellant's life. Most importantly, one of his young sons had been diagnosed with leukaemia. The child was only six years of age at the time of his diagnosis, and underwent three years of intensive chemotherapy. He had about a 70 per cent chance of full recovery. During that time, the appellant commenced his career of fraudulent offending. His son's illness was an important factor in the success of an earlier appeal to this Court in relation to his earlier offending: see Anderson v The Queen (1996) 18 WAR 244. It can be seen that he received on that occasion a very compassionate sentence on appeal. It appears that the appellant's son has suffered relapses on two occasions, although he is generally in remission.
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- While those circumstances are mitigating, their mitigatory force is substantially lessened by the fact that they have been taken into account on an earlier occasion. Despite that earlier leniency, the appellant's offending has not proved to be, as may have been thought at that earlier time, merely an aberration. Rather, he has again engaged in a very elaborate and serious series of offences. Both of the clinical psychologists who assessed the appellant comment on his lack of insight into the factors which have caused him to offend. While the sentence is not to be increased by reason of the fact that the appellant has previous convictions, his offending history does very significantly detract from the otherwise mitigatory effect of his personal circumstances.
46 In my view, having regard to the elaborate nature of the offending, its persistence over a substantial period of time, the fact that in flagrant disregard of the law the appellant continued in precisely the same pattern of offending after his release from bail and the fact that he had begun to offend a very short time after being released from serving a term in relation to other fraud offences, the sentence of 5 years and 4 months (prior to the discount for co-operation) could not be considered to have been manifestly excessive.
47 For these reasons, I would dismiss the appellant's appeal, in relation to grounds 1 and 3, and refuse leave in relation to the remaining grounds.
48 McLURE JA: I agree with Wheeler JA.
49 BUSS JA: I agree with Wheeler JA.
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