Kelly v The State of Western Australia - [2013] WASCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KELLY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 200

CORAM: BUSS JA
HALL J

HEARD: 2 JULY 2013

DELIVERED : 28 AUGUST 2013

FILE NO/S: CACR 53 of 2013

BETWEEN: DAVID AARON KELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :McCANN DCJ
File No  :IND 741 of 2012

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of one count of attempting to pervert the course of justice and seven counts of fraud or attempted fraud - Pleas of guilty - Total effective sentence of 3 years' immediate imprisonment - Whether the sentencing judge made any material errors of fact - Manifest excess - Totality principle - Whether the terms of imprisonment should have been suspended

Legislation:

Criminal Code (WA), s 143, s 409(1)(c), s 409(1)(d)
Sentencing Act 1995 (WA), s 9AA, s 6(4), s 39(2), s 39(3)

Result:

Application for an extension of time to appeal dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dillon v The State of Western Australia [2010] WASCA 135
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dudzik v The State of Western Australia [2012] WASCA 195
Fazari v The State of Western Australia [2012] WASCA 176
Fogg v The State of Western Australia [2011] WASCA 11
Gilmour v The State of Western Australia [2008] WASCA 42
Goulding v The Queen (1991) 56 A Crim R 75
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Jeffery v The Queen (Unreported, WASCA, Library No 920357, 3 June 1992)
Khoo v The State of Western Australia [2011] WASCA 75
Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Nikaghanri v The State of Western Australia [2009] WASCA 192
Norton v The State of Western Australia [2007] WASCA 75
Pedersen v The State of Western Australia [2010] WASCA 175
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Ranford v The State of Western Australia [No 2] [2006] WASCA 243; (2006) 166 A Crim R 451
Rauhina v The Queen [2002] WASCA 91
Skipworth v The State of Western Australia [2008] WASCA 64
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57

BUSS JA: This is an application for an extension of time to apply for leave to appeal against sentence.
On 7 September 2012, the appellant was convicted, on his pleas of guilty in the District Court, of eight counts in an indictment.
On 21 December 2012, McCann DCJ imposed sentence.
The appellant did not file his appeal notice until 6 March 2013. His application for an extension of time is supported by his affidavit sworn 26 February 2013. It is convenient to consider the merits of the proposed grounds of appeal before deciding whether an extension of time should be granted.

The counts in the indictment

The counts alleged, relevantly:
(1)Between 19 May 2010 and 6 August 2011, at Nedlands, the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to Ellis Corporation Pty Ltd, namely unpaid rent and cleaning costs to the value of $12,032 associated with 18 Plunkett Street Highgate, contrary to s 409(1)(d) of the Criminal Code (WA) (the Code).
(2)Between 24 November 2010 and 2 December 2010, at Perth, the appellant attempted to pervert the course of justice upon proceedings for recovery of rental arrears in the Magistrates Court by producing documents that purported to prove he had made the rental payments when he knew the documents were false, contrary to s 143 of the Code.
(3)Between 8 June 2011 and 6 August 2011, at Scarborough, the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely a tenancy agreement and six month lease of unit 23, 58 ‑ 64 Hasting Street Scarborough, for himself, contrary to s 409(1)(c) of the Code.
(4)Between 22 September 2010 and 20 September 2011, at Victoria Park, the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely credit to the value of $18,699.73, for himself, contrary to s 409(1)(c) of the Code.
(5)Between 22 September 2010 and 20 September 2011, at Victoria Park, the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely motor vehicle insurance to the value of $2,318.33, for himself, contrary to s 409(1)(c) of the Code.
(6)Between 22 September 2010 and 20 September 2011, at Victoria Park, the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely a 2007 Mitsubishi 380 sedan motor vehicle to the value of $16,444.73, for himself, contrary to s 409(1)(c) of the Code.
(7)Between 18 September 2011 and 6 October 2011, at Osborne Park, the appellant, with intent to defraud, by deceit or fraudulent means attempted to gain a benefit, namely a 2005 Subaru Impreza WRX motor vehicle to the value of $29,590, for himself, contrary to s 409(1)(c) of the Code.
(8)On 23 September 2010, at Perth, the appellant, with intent to defraud, by deceit or fraudulent means attempted to gain a benefit, namely a 2007 Subaru Impreza WRX motor vehicle to the value of $29,244, for himself, contrary to s 409(1)(c) of the Code.

The relevant statutory provisions

Section 143 of the Code provides that any person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.
Section 409(1)(c) and (d) of the Code read, relevantly:
Any person who, with intent to defraud, by deceit or any fraudulent means ‑
…
(c)gains a benefit, pecuniary or otherwise, for any person; or
(d)causes a detriment, pecuniary or otherwise, to any person; …
…
is guilty of a crime and is liable ‑
(g)if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or
(h)in any other case, to imprisonment for 7 years.

The sentences imposed by the sentencing judge

On 21 December 2012, McCann DCJ imposed individual sentences of immediate imprisonment, as follows:
count 1:1 year;
count 2:1 year 8 months;
count 3:8 months;
count 4:1 year;
count 5:8 months;
count 6:1 year;
count 7:8 months; and
count 8:8 months.
His Honour ordered that the sentences for counts 2, 3 and 8 be served cumulatively and that the sentences for the other counts be served concurrently with each other and concurrently with the sentences for counts 2, 3 and 8. The total effective sentence was therefore 3 years' immediate imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 10 December 2012, being the date on which the appellant was taken into custody for the offences.

The facts and circumstances of the offending

The facts and circumstances of the offending were as follows.
As to count 1, between 20 May 2010 and 9 June 2010, the appellant submitted an application to Ellis Corporation Pty Ltd for a lease of 18 Plunkett Street, Highgate. The application was submitted in a false name with false information regarding his previous employment, occupation and income, his previous residential addresses and his personal particulars. The appellant provided a Western Australian driver's licence in a false name as proof of his identification. The name, address, date of birth and expiry date of the licence had been altered by the appellant. He believed that he would not be successful if he submitted an application in his true name because of a bad credit history. The false information given to Ellis Corporation Pty Ltd prevented it from making accurate inquiries and checks in processing the application. Ellis Corporation Pty Ltd granted the appellant a lease on the basis of the false information. On numerous occasions, the appellant failed to make payments under the lease as required. Ellis Corporation Pty Ltd commenced proceedings to evict the appellant. The total of amounts owing by the appellant in connection with the lease was $12,032. If Ellis Corporation Pty Ltd had known the true position in relation to the appellant it would have carried out accurate checks in relation to his credit and tenancy history, and the lease may not have been granted.
As to count 2, on 25 November 2010 the appellant appeared in the Magistrates Court. He was the respondent in an application by Ellis Corporation Pty Ltd under the Residential Tenancies Act 1987 (WA) for the recovery of unpaid rent. The amount claimed was $3,300. The appellant represented himself to the presiding magistrate as David Andrew Kelley, being the false name in which he had been granted the lease.
During the hearing in the Magistrates Court, the following exchange occurred:
Magistrate' … offered you the chance to pay all the rent up to the date at least one day before this hearing. Have you done that?'
Appellant'Yes, sir I have.'
Magistrate' … So I take it from your situation you get a receipt through the internet to say those transactions have gone through?'
Appellant'That's correct, yeah, I've got the three receipt details.'
Magistrate' … and you've paid the whole three at once, did you?'
Appellant'That's correct yeah'.
The proceedings were unable to be resolved on 25 November 2010. The magistrate adjourned the hearing to 1 December 2010. On that date the offender appeared again in the Magistrates Court. The matter was heard by a different magistrate. During the hearing the following exchange occurred:
Magistrate'Right. Thank you. Mr Kelley, what has occurred since we had the adjournment?'
Appellant' … I spoke with my bank manager and said that all transactions have been successful because I requested they do the trace on Thursday afternoon, said they've all been fine. Everything corresponds, … I've got the statement showing the bank basically taking my money out and or the receipt numbers from the corresponding transactions … .'
The appellant gave the magistrate digital screen captures showing his bank statements. He also gave the magistrate a letter, purporting to be from the Commonwealth Bank of Australia, which indicated that the three payments referred to by him had been made. However, the appellant had altered or created electronic documents, purporting to be from the Commonwealth Bank, to support his false submissions to the magistrate. The appellant answered questions from the magistrate and gave him information knowing that the information and answers were untrue. As a result of the false information and answers, the proceedings against him were dismissed.
As to count 3, on 9 June 2011, the appellant submitted an application to O'Rourke Realty Investments for a lease of unit 23, 58‑64 Hastings Street, Scarborough. The appellant completed an application form. Most of the particulars he included in the form were false. On 11 June 2011, the appellant submitted to O'Rourke Realty Investments a certified copy of his passport and his Medicare card, which he had altered, together with a false employee payslip. The appellant had altered the name and date of birth in the passport. He had also altered the name and identification number on the Medicare card. He created the employee pay slip. It was purportedly issued by Fugro Geophysical Surveys Pty Ltd to David A Kelley of 45 Aberdare Street, Nedlands. The payslip stated, falsely, that the appellant had earned $137,567.33 as a pilot. As a result of the information in the application, O'Rourke Realty Investments granted the appellant a six‑month lease and entered into a tenancy agreement with him.
As to count 4, on a date before 24 September 2010, the appellant created two payroll advice slips, purporting to be issued by Clough Ltd, in the name of David Andrew Kelley. The documents stated that the appellant was being paid an annual salary of $66,500 as a quarantine inspector and that he had earned $1,019.23 between 9 September 2010 and 16 September 2010.
Between 25 May 2010 and 24 September 2010, the appellant obtained a residential property lease form from Ellis Corporation Pty Ltd in the name of David Andrew Kelley. He made an electronic copy of the document and altered the date of execution of the lease from 25 May 2010 to 25 May 2009. He also altered the term of the lease from 12 months to 24 months and the first payment date from 28 May 2010 to 28 May 2009. These details were altered to give the erroneous appearance that the appellant had held a lease with Ellis Corporation Pty Ltd for two years.
The appellant altered the details of his passport and his Medicare card in the manner I have described when recounting the facts and circumstances of count 3. He altered these documents for the purpose of using them as proof of identification in an application for finance to GetApproved.com.au.
On 23 September 2010, the appellant obtained finance of $18,699.73 from Esanda. The finance was approved as a result of the appellant having submitted the fraudulent identification documents and finance application to GetApproved.com.au. The appellant entered into a loan contract with Esanda, in the false name, for a total amount of $26,322.40. He signed the contract as David Andrew Kelley. He also signed a direct debit request in the name David A Kelley in which he authorised funds to be withdrawn from his Commonwealth Bank account as part of the loan contract.
As to count 5, the appellant sought and obtained gapcover insurance and motor vehicle insurance through Swann Insurance in the false name, David Andrew Kelley, for a 2007 Mitsubishi sedan motor vehicle.
As to count 6, on 23 September 2010, the appellant went to Southside Mitsubishi at 1261 Albany Highway, Cannington. The appellant, having obtained the finance from Esanda, entered into a contract with Southside Mitsubishi for the purchase of the Mitsubishi sedan motor vehicle the subject of count 5. He signed the contract and agreed to purchase the vehicle for $16,444.73. The appellant took possession of the vehicle from Southside Mitsubishi. It remained in his possession until it was repossessed subsequently by Esanda.
As to count 7, between 6 August 2009 and 28 September 2011, the appellant made an electronic copy of his passport. He altered the name to read Dave Kelly. He also altered his date of birth and the passport document number.
Between 29 July 2011 and 28 September 2011, the appellant altered an interim statement of account issued by the ANZ Bank by changing the name David Aaron Kelly to Dave Kelly. He also altered transaction details in the statement to indicate that funds had been deposited by Fugrocorp Pty Ltd for wages.
Before 28 September 2011, the appellant created a false employee payslip, purporting to be issued by Fugro Geophysical Surveys, for Dave Kelly. The document stated that Dave Kelly had been paid $1,190.98 during the period 19 September 2011 to 25 September 2011. The payslip also stated that Dave Kelly had earned a total of $25,171.25 for the financial year. The appellant created the document as proof of employment, financial status and identity for submission, with his application to GetApproved.com.au, in order to obtain finance for the purchase of a motor vehicle.
On 28 September 2011, the appellant went to Lynford Motors, at 300 Scarborough Beach Road, Osborne Park. He entered into a contract with Lynford Motors for the purchase of a 2005 Subaru Impreza motor vehicle for $29,590. The contract was written in the name of Dave Kelly, subject to the approval of finance. The appellant signed the document as Dave Kelly. He did not obtain the vehicle, however, because Esanda declined to provide finance.
As to count 8, between 28 April 2003 and 5 October 2011, the appellant obtained a copy of his birth certificate. He altered his name to read Dale Allen Kalleed. He also altered his date of birth and the surname of his mother and father.
Between 6 August 2009 and 5 October 2011, the appellant made an electronic copy of his passport. He altered his name to read Dale Allen Kalleed. He also changed his date of birth and the passport document number.
Before 5 October 2011, the appellant created a false employee payslip, purporting to be issued by Skywest Airlines Pty Ltd, for Dale Kalleed of 24 Stanley Street, Scarborough. The payslip stated that Kalleed had earned $1,945.53 for the period 19 September 2011 to 25 September 2011. The payslip also stated that Kalleed had earned a total of $25,171.25 for the financial year. The appellant created the document as proof of employment, financial status and identity.
The appellant submitted the altered documents to GetApproved.com.au in connection with an application for finance to purchase a motor vehicle.
On 7 October 2011, the appellant went to John Hughes at 196 ‑ 234 Albany Highway, Victoria Park. He entered into a contract with John Hughes to purchase a 2007 Subaru Impreza motor vehicle for $29,244. The contract was written between Dale Kalleed and John Hughes, and the appellant signed the contract as Dale Kalleed. The appellant did not, however, obtain the vehicle because Esanda declined to provide finance.
The appellant committed count 8 while he was on bail for the earlier fraud offences.

The expert reports before the sentencing judge

The material before the sentencing judge included a report dated 3 October 2012 from a consultant psychiatrist, Dr Lawrence Blumberg, a report dated 10 December 2012 from a forensic psychologist, Ms Claire Lynn, and a pre‑sentence report dated 1 November 2012.
Dr Blumberg said the appellant had told him he had been working as a receptionist for the past 18 months, he was studying for a commercial pilot's licence and he would complete this course with another two weeks training.
Dr Blumberg recorded the appellant's history as to his educational achievements:
After completing his Year 12 education, the [appellant] did a Bachelor Degree in Aviation and thereafter has completed a Masters in Aviation. He is currently doing a Graduate Diploma in Flying. The [appellant] obtained his private pilot's licence. He is currently studying for his commercial pilot's licence.
Dr Blumberg was of the opinion that the appellant did not have a major psychiatric illness. However, he had a long history of cannabis abuse and this raised a reasonable concern that the cannabis may have produced chronic cognitive impairment. Dr Blumberg also noted that the appellant had described having a 'disruptive childhood', he had difficulty dealing with his mother's suicide, he had not engaged in any grief counselling and he had coped with the associated stress by using cannabis and focusing on his 'flying career'.
Ms Lynn provided this summary of her assessment of the appellant:
While [the appellant] seemed to attribute his behaviours to a decline in functioning following his mother's death, to a cannabis habit and an inability to financially problem solve, the current assessment concludes that personality and attitudinal issues are more relevant. This opinion is based upon the onset of his fraudulent tendencies preceding his mother's death, his cannabis habit not interfering with his sustained ambition, focus and effort and his higher than average intellectual and problem solving capacity. His actions, disclosures and psychometric test results indicate a driven, self centred, confident individual, who presents well and utilises this to persuade others of his ability and integrity. The available information collectively portrays him as a stimulation seeker, risk taker and rule breaker with the capacity to normalise or justify his actions to himself and others. Currently he demonstrated limited insight into the gravity of his actions.

According to the author of the pre‑sentence report, the appellant did not present as being remorseful. He claimed his use of cannabis impacted on his thinking and was a major contributing factor in his offending. He also sought to justify his offending by stating that he was going to repay the money he owed to the victims. The appellant told the author of the pre‑sentence report that he was earning about $120,000 a year and was financially secure. He said he had commenced repaying his debts and had $12,000 in savings.

Concessions made by defence counsel at the sentencing hearing

At the sentencing hearing, defence counsel made the following concessions about the appellant and his inherent dishonesty:
PUTT, MR: Thank you for the adjournment, your Honour. I've spoken to [the appellant]. [The appellant] tells me that he has a great deal of difficulty acknowledging the fact that he thinks he has mental health problems. He says that he at times is a pathological liar. He lies for no reason and he has trouble being honest. He has a great deal of difficulty accepting that, in that he's always had the dream and hope of being a commercial pilot, licensed, but he admits that now.
In relation to the specific matters that your Honour mentioned, he admits he lied about the $120,000 per year. He said he was a pilot in relation to the reference in the pre‑sentence report. He said manager of Billabong Backpackers. That's a lie. He was the night supervisor. He says he's lied.
He accepts it must be difficult for your Honour, though, because he says, though, that he did actually give you genuine references and that, secondly, he is involved in a bachelor of aviation and he gave me some further instructions about that …
So what I think he's done, with respect, your Honour, is I think he's exaggerated his standing in relation to his studies, but he is genuinely enrolled in a bachelor of aviation and if he wasn't in custody, he does stand a genuine prospect of completing it, he tells me …
McCANN DCJ: You handed this up as evidence of him finishing his degree, so where is the evidence that he's enrolled in Edith Cowan University next year for the purpose of completing all necessary academic requirements to receive the degree of bachelor of aviation?
PUTT, MR: I think ‑ ‑ ‑
McCANN DCJ: Bearing in mind that today is the hearing.
PUTT, MR: Yes, your Honour.
McCANN DCJ: In the absence of that evidence I'm not going to believe him.
PUTT, MR: Excuse me.
McCANN DCJ: It's not going to make any difference to the sentence, by the way. He's committed so many lies over the years - ‑ ‑
PUTT, MR: Yes, your Honour.
McCANN DCJ: ‑ ‑ ‑ That my findings are going to be the same.
PUTT, MR: Okay. Well, I won't take that any further.
…
PUTT, MR: I won't press it. Simply the point is, your Honour, and what my client says is that it's got to the situation he admits that he has been a pathological liar. What he says to you, though, the difficulty he now has, though, is that some of what he's told you and some of the references, for example, his father's here in court today and other references supplied are genuine and that's simply the point that he wanted me to make.
McCANN DCJ: All right. Well, I'm going to proceed on the basis that they've been written by the [people] who they are said to have been written by and they represent the views of those people.
PUTT, MR: Thank you, your Honour.
McCANN DCJ: They're not worth the paper they're written on. That's going to be my finding as to their weight and that is because these people have been fundamentally deluded into ‑ in their opinion of this man.
PUTT, MR: The final comment I want to make, your Honour, in relation to my client's admissions in relation to his mental health, it appears on the basis of what he said, that he may have been less than honest with the psychologist, psychiatrist. His father's in court and he also has substantial concerns as to my client's mental health as well.
McCANN DCJ: Well, I was hoping this would be adequately explored by the experts. Regrettably it hasn't. It would have been better if your client had been frank with them. I'm not going to go away and get fresh reports.
PUTT, MR: I appreciate that, your Honour (ts 49 ‑ 53).

The appellant's prior criminal record

The appellant has a prior criminal record. His previous convictions comprise mainly traffic offences including numerous offences of driving while he had no authority to drive. In 2006 the appellant was convicted of creating a false belief, two counts of gaining benefits by fraud, possessing a prohibited drug, possessing a smoking utensil and receiving. He was sentenced to an intensive supervision order for these offences.

The sentencing judge's sentencing remarks

The sentencing judge made findings of fact and observations in his sentencing remarks, as follows:
(a)Each count involved an elaborate 'scam' and 'the extent of the forgeries [was] serious, usually involving very important proof of identification, but otherwise proof of employment and so on' (ts 61).
(b)However, the losses actually suffered by the victims were 'quite modest' (ts 61). That was partly because the appellant's fraud was detected in the later counts, partly because of the recovery of fraudulently obtained property in the other counts and partly because the appellant has 'made good part of the deficit or detriment suffered by the victim' (ts 61). Overall, the losses appeared to be 'in the order of about $20,000, possibly slightly less' (ts 61).
(c)There was 'a commercial dispute about some of the moneys said to have been lost by the victim in count 1' (ts 61 ‑ 62), but his Honour accepted the prosecutor's submission about the nature of the detriment suffered by this victim. All of the outstanding rent owing in respect of the lease referred to in count 1 had been paid. The commercial dispute concerned whether the appellant had paid in excess of the arrears (ts 59). The prosecutor's submission was that the victim had suffered significant emotional distress. The appellant had been deceitful in his dealings with her and this had placed her under undue stress (ts 60).
(d)Later, his Honour said in relation to count 1:
All the rent has been repaid, but there is now a nasty commercial dispute pending about other matters, and the landlord is still suffering a detriment by dealing with a dishonest person over those matters, rather than an honest person (ts 69).
(e)As to count 2, the appellant's offending involved 'a deliberate, elaborate and successful perversion of justice committed in the face of the court' (ts 62). His Honour said it was 'a very serious matter' (ts 62).
The sentencing judge noted that, in relation to the appellant's personal circumstances and antecedents, he had received and considered extensive submissions from defence counsel, written references, a letter from the appellant, the pre‑sentence report, the psychiatric report and the psychological report. His Honour said he had conducted a more detailed inquiry than usual into the truth and reliability of the material he had been given about the appellant because the appellant 'is a convicted fraud, he's a con man, and has been convicted of a serious count of attempting to pervert the course of justice in which he has submitted forged information to the court' (ts 64).
His Honour said the appellant had continued to 'bend the truth'; in particular, lies had been told to the consultant psychiatrist, Dr Blumberg, and to the author of the pre‑sentence report. The letter to his Honour contained 'half‑truths'. His Honour elaborated:
There is a suggestion that he has been more generous towards the defrauded landlord of count 1 than he has. A suggestion that a Master's degree is in the offing. These sorts of assertions cannot be given any credence at all. I, by a very narrow margin on the balance of probabilities, accept that but for his impending imprisonment he might finish his Bachelor's degree this year if he studied hard. But that is a long way from ‑ short of what he told Dr Blumberg.
And never corrected until I brought it up. Save insofar as in his letter, he said he was going to finish his degree next year and go onto his Master's. If he was going to be honest with the court he would have apologised for lying to Dr Blumberg and he would have apologised to the author of the pre-sentence report who was told he was earning $120,000 a year and he was a pilot and a manager when he was nothing of the kind and earning nothing of the kind (ts 64).
The sentencing judge referred to 'a late concession' by the appellant that he is 'a pathological liar and finds he has to lie all the time' (ts 66). His Honour also mentioned that the appellant had admitted offending 'to pay his expenses and for cannabis' (ts 66). He found the appellant was 'maintaining an inflated lifestyle', had shown 'little remorse, [and had] no insight whatsoever into the nature of his offending' (ts 66). His Honour said the appellant was 'a deliberate, calculating and fundamentally dishonest person' (ts 66).
His Honour noted that he gave the appellant 'a discount of 15% of what would otherwise have been the sentence' and that '[all] other mitigating matters will get 5%' (ts 66).

The proposed grounds of appeal

The appellant relies on four proposed grounds of appeal.
Ground 1 alleges that the sentencing judge erred 'by failing to accept or properly heed evidence relevant to the offending and to the [appellant] personally'.
Ground 2 alleges that his Honour erred by imposing individual sentences that were manifestly excessive and a total effective sentence that infringed the first limb of the totality principle.
Ground 3 alleges that his Honour erred 'by not adequately considering all possible sentencing options'.
Ground 4 alleges that his Honour erred 'by failing to deduct the stated discount from the head sentence'.
It is convenient to consider the proposed grounds in the following order: ground 1, ground 4 and then grounds 2 and 3.

The merits of proposed ground 1

The appellant submitted in relation to ground 1:
(a)The sentencing judge failed properly to investigate 'the true nature of the detriment to [the victim of count 1] and other victims of the appellant's offending'.
(b)His Honour erred in stating that, even though the outstanding rent for the lease had been paid, the victim of count 1 was 'still suffering a detriment by dealing with a dishonest person' (ts 69).
(c)By failing properly to investigate the true nature of the appellant's civil dispute with the victim of count 1, the appellant was not sentenced appropriately after a consideration by his Honour of 'all facts of the case as well as those personal to the offender'.
(d)The appellant was sentenced on 21 December 2012. Later, on 14 May 2013, the sentencing judge heard an application by the Director of Public Prosecutions (WA) for a compensation order relating to 'the matters in count 1 and indirectly to those in count 2'. The hearing of the application was not completed on that day. It was adjourned to 9 August 2013. At the hearing on 14 May 2013, documents (including invoices) and other evidence in relation to these matters were tendered. This material should have been 'requested by, and supplied to, [his Honour] at the sentencing hearing on the 21st of December 2012'. The material in question demonstrated that 'there was actually no financial loss due to the commission of the crime' the subject of count 1 and, based on the sentencing judge's preliminary findings on the application, the appellant had overpaid the victim of count 1 in the amount of $4,106.55.
(e)There was 'no financial loss in any of the eight counts' and if his Honour had 'properly interrogated the evidence before him this would have been uncovered at the sentencing hearing and a very different conclusion would have been drawn as to the overall criminality of the offending which would have affected the final sentencing when considering the question of totality'.
(f)His Honour erred 'by failing to adjourn the sentencing hearing until such matters could be properly investigated and submitted'. Further, any dispute as to 'an amount owing which was said to be attributable to the offending should have been settled prior to sentencing'.
(g)His Honour failed adequately to 'consider the prospects of the appellant and [his] imminent completion of his commercial pilot's licence' and his Honour also erred in failing to 'accept evidence of this being true'.
(h)The appellant's 'desire to live a constructive life and better himself to gain valuable employment and contribute to the community should have been given more weight'. Although the appellant's offending was of a 'serious nature', 'proper weight was not given to the possibility and the reality of rehabilitation of the appellant'.
(i)Although the appellant made 'some naïve but very serious mistakes along the way, his intentions were never to defraud anyone of money or property and the facts of the case go to prove this, but were not adequately considered by [his Honour]'.
(j)His Honour refused 'to accept evidence from the appellant's counsel in regards to confirmation of his future and prior enrolments, his professional flying qualifications and his previous character' and failed 'to correctly heed the evidence submitted as to the previous good character and … future prospects of the appellant'.
Proposed ground 1 is without merit. My reasons for this opinion are as follows.
First, the Australian criminal justice system is adversarial, not inquisitorial, in nature. As Gleeson CJ and Callinan J noted in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232, the adversarial procedure of criminal justice is bound up with notions of judicial independence and impartiality. The issues at a criminal trial are chosen and defined by the parties and their legal representatives [37]. Their Honours added:
It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned. The general rule that litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence [37].
In general, the observations of Gleeson CJ and Callinan J in Taufahema as to the adversarial procedure of criminal justice apply, by analogy, to a sentencing hearing.
In the present case, the appellant was represented by an experienced criminal lawyer at the hearing before his Honour. The proceedings were adversarial, not inquisitorial, in nature. Defence counsel on behalf of the appellant decided upon the submissions to be made to, and the information to be placed before, the sentencing judge. His Honour was not bound to make his own inquiries. He was not obliged to require further investigation by or submissions from defence counsel or the prosecutor. Defence counsel did not apply for an adjournment of the sentencing hearing. It is not reasonably arguable that defence counsel's conduct of the appellant's case occasioned a miscarriage of justice.
Secondly, his Honour said that the losses actually suffered by the victims were 'quite modest' (ts 61). On the evidence, this finding was both open and correct. Further, his Honour was entitled to conclude, on the evidence, that the victim in count 1 had suffered significant emotional distress and been placed under undue stress in her dealings with the appellant, and that these consequences amounted to a detriment. The undue stress was, at least in part, attributable to the victim having to deal with a person (that is, the appellant) who was in some respects dishonest. Defence counsel conceded, properly and on instructions, that the appellant was a 'pathological liar' (ts 52).
Thirdly, alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
In the present case, it is not reasonably arguable, on the basis of the appellant's complaints about the weight given by his Honour to particular sentencing considerations, that his Honour failed actually to exercise the discretion conferred on him.
Fourthly, a plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. In the present case, the offences alleged in counts 1 and 3 ‑ 8 included, as an element, conduct undertaken by the appellant 'with intent to defraud, by deceit or fraudulent means'. It is not open to the appellant to endeavour now to resile from this element of the offences in those counts by asserting that he never intended to defraud anyone.
Fifthly, the sentencing judge did not make errors of fact in rejecting some of the information before him which, on its face, was favourable to the appellant. His Honour's approach was justified by the admissions inherent in the pleas of guilty, the material before his Honour considered as a whole and the concessions properly made by defence counsel. His Honour was entitled, on the evidence, to find in substance that the appellant was devious and had a significant propensity for dishonesty.
Sixthly, in any event, even if, contrary to my view, it is reasonably arguable that the sentencing judge made any of the errors asserted by the appellant in relation to ground 1, for the reasons I give in dealing with proposed grounds 2 and 3, it is not reasonably arguable that different sentences should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

The merits of proposed ground 4

The appellant submitted that the sentencing judge failed 'to deduct the stated 20% discount from the head sentence'.
In my opinion, for the reasons that follow, proposed ground 2 is without merit.
Section 9AA of the Sentencing Act 1995 (WA) provides:
(1)In this section ‑
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if ‑
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

Section 9AA was inserted by the Sentencing Amendment Act 2012 (WA). It came into operation on 20 December 2012. The appellant was sentenced on 21 December 2012.
During the sentencing hearing, his Honour discussed s 9AA with the prosecutor and defence counsel (ts 22 ‑ 25).
His Honour noted in his sentencing remarks that the appellant had entered 'a negotiated plea of guilty' (ts 61).
Later in his remarks, the sentencing judge said:
In mitigation there are his pleas of guilty, for which I give him a discount of 15 per cent of what would otherwise have been the sentence. All other mitigating matters will get five per cent (ts 66).
When he imposed the individual sentence for count 1, his Honour said:
On count 1, remembering there'll be a 20 per cent discount on all of these matters, 12 months' imprisonment (ts 69).
It is plain that, in relation to each count in the indictment, the sentencing judge reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) for the offence by 15% in order to recognise the benefits to the State, and to any witness to the offence, resulting from the plea of guilty. His Honour also allowed, in relation to each count, an additional discount of 5% for other mitigating factors.
In any event, for the reasons I give in dealing with proposed grounds 2 and 3, it is not reasonably arguable that different sentences should have been imposed.

The merits of proposed grounds 2 and 3

It is convenient to consider proposed grounds 2 and 3 together.
The appellant submitted that when his 'recent good conduct and imminent success in his professional endeavours are viewed objectively, it seems hard to envisage that a term of immediate imprisonment [was] the only sentencing option which could be justified'. According to the appellant, the length of each individual term of imprisonment was manifestly excessive, the length of the total effective sentence infringed the first limb of the totality principle and his Honour erred in law by failing to suspend the terms of imprisonment.
The maximum penalty for the appellant's contravention of s 143 of the Code was 7 years' imprisonment and the maximum penalty for his contraventions of s 409(1)(c) and (d) of the Code was also 7 years' imprisonment.
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that ‑
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of that Act. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14], [58]; Fogg v The State of Western Australia [2011] WASCA 11 [9].
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an inferred error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.
The offence of attempting to pervert the course of justice strikes at the heart of the criminal justice system. General deterrence is an important sentencing factor. See Jeffery v The Queen (Unreported, WASCA, Library No 920357, 3 June 1992) (10); Rauhina v The Queen [2002] WASCA 91 [16]; Norton v The State of Western Australia [2007] WASCA 75 [37]; Gilmour v The State of Western Australia [2008] WASCA 42 [17]. There is no tariff for the offence. See Rauhina [16]; Ranford v The State of Western Australia [No 2] [2006] WASCA 243; (2006) 166 A Crim R 451 [36]; Norton [37]; Dillon v The State of Western Australia [2010] WASCA 135 [29]. The offence is ordinarily punished by a term of immediate imprisonment. See Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104 [168]. Where the offence involves deceiving a court in the exercise of its judicial function, the gravity of the offending is increased. See Goulding v The Queen (1991) 56 A Crim R 75, 78 ‑ 79; Dudzik v The State of Western Australia [2012] WASCA 195 [24].
I have considered numerous prior cases of offending against s 143 of the Code which have some features comparable to the appellant's offending in count 2. See Rauhina; Ranford; Norton; Gilmour; Dillon; Fazari v The State of Western Australia [2012] WASCA 176; Dudzik; and the cases referred to in those decisions. It is unnecessary to reproduce the material facts and circumstances of the prior cases or the sentencing dispositions.
In Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, Steytler P (Wheeler & Roberts-Smith JJA agreeing) reviewed the sentences which have customarily been imposed for offences against s 409(1) of the Code. It is unnecessary to reproduce his Honour's review. See also the survey of sentences carried out in Skipworth v The State of Western Australia [2008] WASCA 64; Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57 and Nikaghanri v The State of Western Australia [2009] WASCA 192. Further, see Khoo v The State of Western Australia [2011] WASCA 75.
In the present case it is plain, upon an evaluation of the facts and circumstances relating to the appellant and his offending in the context of the relevant sentencing principles, that it would not have been appropriate for the sentencing judge to have suspended the terms of imprisonment.
Count 2, being the offence of attempting to pervert the course of justice, was serious. The appellant intentionally deceived the magistrate in relation to his true identity. He handed to the magistrate false documents. As a result, civil proceedings against him were dismissed. The appellant's conduct undermined the administration of justice. It involved premeditation and planning. The main sentencing factors were appropriate punishment and personal and general deterrence.
The fraud offences committed by the appellant were also serious. They were premeditated, planned and committed over a period of time. The appellant offended as alleged in count 8 while he was on bail. Altering the identification documents involved a degree of sophistication. Appropriate punishment and personal and general deterrence were significant sentencing factors.
The principal mitigating feature was the appellant's early pleas of guilty. They were not, however, pleas on the fast‑track system.
The appellant was born on 10 March 1985. He was aged 25 or 26 at the time of the offending and was 27 when sentenced. He was not youthful or inexperienced for sentencing purposes.
The appellant's prior criminal record, the expert reports before the sentencing judge and the concessions properly made by defence counsel demonstrate that the appellant was not entitled to any leniency on the basis that he was otherwise of good character.
Although the appellant was entitled to credit for his early pleas of guilty, he did not evince any remorse or contrition. He had limited insight into the gravity of his conduct. The appellant's deviousness and his propensity for dishonesty in his dealings with others are cause for concern. The forensic psychologist, Ms Lynn, expressed the view that, on the information available to her, the appellant was 'a stimulation seeker, risk taker and rule breaker with the capacity to normalise or justify his actions to himself or others'. These characteristics may be an obstacle to the appellant's rehabilitation.
I am satisfied that the seriousness of the appellant's offending precluded the suspension of the terms of imprisonment.
Also, I am satisfied that none of the individual terms of immediate imprisonment was unreasonable or plainly unjust. Each of those sentences was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offence, the vulnerability of the complainant, the sentencing dispositions in comparable cases, the appellant's personal circumstances and all aggravating and mitigating factors.
Further, I am satisfied that the total effective sentence of 3 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant circumstances and sentencing principles. It was necessary, in order properly to mark the appellant's overall criminality, to order that some of the individual sentences be served cumulatively. The count of attempting to pervert the course of justice involved egregious offending and the fraud and attempted fraud counts involved a sustained course of offending over a period of time.
It is not reasonably arguable that error should be inferred from the sentencing outcome, either in relation to any of the individual sentences of imprisonment or in relation to the total effective sentence.
Proposed grounds 2 and 3 are without merit.

Conclusion

None of the proposed grounds of appeal has a reasonable prospect of success. I would therefore dismiss the application for an extension of time to apply for leave to appeal.
HALL J: I agree with Buss JA.