Kotnowski v Richardson
[2019] WASC 369
•11 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KOTNOWSKI -v- RICHARDSON [2019] WASC 369
CORAM: SMITH J
HEARD: 10 OCTOBER 2019
DELIVERED : 11 OCTOBER 2019
FILE NO/S: SJA 1119 of 2019
BETWEEN: JACEK ANTONIO KOTNOWSKI
Appellant
AND
FINOLA RICHARDSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B C GLUESTEIN
File Number : PE 34825 of 2019
Catchwords:
Criminal law and sentencing - Offence of gaining $1,435 by fraud by deceit - Whether sentence of 7 months' imprisonment manifestly excessive as to type of sentence
Legislation:
Criminal Code (WA), s 409(1)(c)
Environmental Protection Act 1986 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 7(2), s 9AA, s 39(2), s 39(3), s 53(1), s 53(3)
Taxation Administration Act 1953 (Cth)
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Durward v Belton [2012] WASC 479
Krencej v The State of Western Australia [2019] WASCA 82
Pollock v The State of Western Australia [2011] WASCA 133
Vargess v Hughes [2017] WASC 291
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
SMITH J:
The appeal - application to extend time and the result
After hearing counsel for the parties on 10 October 2019, I made orders that:
1.The affidavit of Natalie Sinton sworn on 19 September 2019 be admitted into evidence in the appeal.
2.The application for an extension of time to appeal is allowed.
3.Leave to appeal on ground 1 is granted.
4.The appeal is allowed.
5.Other than the order for compensation in the amount of $1,435 to be paid to Abdur Razzaque, the sentence imposed on 9 August 2019 in PE 34825/2019 be set aside.
6.The appellant be resentenced to a fine of $1,000.
These are my reasons for making the orders.
Jacek Antonio Kotnowski seeks an extension of time to commence an appeal and leave to appeal a sentence imposed on him on 9 August 2019.
The appeal was commenced on 19 September 2019 (13 days out of time). The application for an extension of time is not opposed.[1] The delay is relatively short and has been adequately explained.[2]
[1] Respondent's submissions [3].
[2] Affidavit of Natalie Sinton sworn 19 September 2019.
Background
Mr Kotnowski was charged with one count that, on 31 December 2018, he gained a benefit by fraud by deceit, namely $1,435, contrary to s 409(1)(c) of the Criminal Code (WA).
The facts of the offence were admitted and are as follows.[3] On 21 December 2018, Mr Kotnowski posted an advertisement on Gumtree for the sale of an oven for the amount of $2,000. On 23 December 2018, the victim enquired about the oven. They agreed that the sale would be for $1,435. Mr Kotnowski provided bank account details for his partner and agreed to post the oven to the victim on payment of that sum, which payment occurred on 31 December 2018.
[3] ts 15.
On 7 August 2019, Mr Kotnowski appeared in the Magistrates Court in Perth and entered a plea of guilty. The matter was adjourned to 9 August 2019 for the presentation of an oral presentence report.
On 9 August 2019, Mr Kotnowski was sentenced to 7 months' imprisonment, backdated to 6 August 2019, with eligibility for parole. In imposing the sentence of immediate imprisonment, the sentencing magistrate took into account Mr Kotnowski's plea of guilty, for which he was afforded a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour also made an order that Mr Kotnowski pay $1,435 as compensation to the victim.
Mr Kotnowski was sentenced shortly before his 49th birthday. He has a long, substantial and recent history of similar offending. At the date of the sentencing hearing, he had multiple prior convictions: 54 for fraud, one for attempted fraud, 25 for stealing, 17 for burglary (including one attempt) and multiple other offences of dishonesty including possession of stolen or unlawfully obtained property, receiving, giving false details, forgery, wilfully misleading police and various falsification offences and traffic offences. Mr Kotnowski had also been sentenced for offences relating to liquid waste under the Environmental Protection Act 1986 (WA), refusing to comply with the Taxation Administration Act 1953 (Cth) and failing to comply with a direction notice, contrary to the Planning and Development Act 2005 (WA).
The author of the oral presentence report reported the following relevant matters to the Magistrates Court:
(a)Mr Kotnowski had been sentenced to custodial and non‑custodial sentences in the past (including fines, community based orders, intensive supervision orders and suspended terms of imprisonment);
(b)his prior compliance with community orders had been very poor and he had not completed a community order without re‑offending or breaching by omission. The last community orders on which he was placed were four intensive supervision orders expiring on 14 February 2018. On 17 January 2018, after non‑compliance with those orders, he appeared in the court and the orders were confirmed to continue;[4]
[4] ts 16.
(c)Mr Kotnowski had a gap in offending between 2012 and 2015 during which period he was in a stable relationship with his wife (now ex‑wife);[5]
[5] ts 16, 17.
(d)Mr Kotnowski was not suitable for any further community based dispositions in light of his history of poor compliance;[6]
[6] ts 18.
(e)Mr Kotnowski's ex‑wife had been interviewed and reported that:
(i)she had seen a significant (positive) change in Mr Kotnowski's behaviour in the past few months, especially since Christmas (of 2018);[7] and
(ii)Mr Kotnowski's children (a daughter and a step‑son), custody of whom he shares with his ex‑wife, had said he is a good father and a good role model;[8]
(f)Mr Kotnowski had two other daughters from a previous relationship with whom he has no regular contact;[9]
(g)Mr Kotnowski was currently single and, whilst he had a work history of being self‑employed in the building industry as a renovator/builder, he realised he needed more stability in his work and had work lined up as a tyre fitter in Hillarys;[10]
(h)Mr Kotnowski had at least $109,000 in outstanding fines and was currently in custody having converted some fines into time;[11]
(i)Mr Kotnowski had had no health issues and appeared to have no current drug issues. Alcohol use was problematic for him but he had stopped drinking at Christmas time and had not had a drink since;[12]
(j)Mr Kotnowski had identified programmes that he was willing to attend, in particular psychological counselling in prison to address his issues with consequential thinking, financial planning, decision‑making, victim empathy and entrenched offending history and how it impacts on the community and others including his family.[13]
[7] ts 17.
[8] ts 17.
[9] ts 16 ‑ 17.
[10] ts 17.
[11] ts 17.
[12] ts 17.
[13] ts 17 ‑ 18.
Counsel for Mr Kotnowski at first instance made a submission that the appropriate disposition for the offence for which Mr Kotnowski was convicted was a fine,[14] and made the following submissions in mitigation which go to Mr Kotnowski's antecedents:
(a)much of Mr Kotnowski's recent history of offences was connected with him and his ex-wife building an extravagant house in South Perth and overreaching his financial capacity which led to a breakdown of his relationship with his ex‑wife;[15]
(b)the stress (of his financial commitments) led to alcohol consumption; the appellant's offences were often committed following an argument with his ex‑wife leading to him consuming alcohol and then committing an offence of stealing. This led to an accumulation of a significant history of offences;[16]
(c)the appellant had recently sold the house in South Perth and used $120,000[17] of the equity to pay off a large amount of his outstanding fines and had provided counsel with an authority to pay some other outstanding fines;[18]
(d)when the offence for which he was being sentenced occurred, he was in a short‑lived relationship with another woman. The relationship ended because 'they recognised that they're not good for each other because of the alcohol consumption that went with that relationship';[19]
(e)his ex‑wife had not been supportive of him having contact with their children because he had not changed his lifestyle but, in recent times, he had demonstrated to her that he had made positive changes;[20]
(f)the appellant had modest private, affordable rental accommodation that is furnished appropriately for his daughter (aged 4) and his step‑son (aged 7);[21] and
(g)Mr Kotnowski had shown that he was able to abstain from offending when there is stability in his life and he had made recent changes to regain that stability.[22]
[14] ts 15.
[15] ts 19.
[16] ts 19.
[17] Most of this amount appeared to be fines imposed since 2016 for offences relating to liquid waste, contrary to the Environmental Protection Act 1986 (WA); refusing to comply with the Taxation Administration Act 1953 (Cth), failing to comply with a direction notice, contrary to the Planning and Development Act 2005 (WA); with some smaller fines for traffic offences and offences relating to dishonesty.
[18] ts 15.
[19] ts 20 ‑ 21.
[20] ts 19 ‑ 20.
[21] ts 19, 20.
[22] ts 20.
As to the seriousness of the offence, counsel for the appellant made the following submissions to the sentencing magistrate:
(a)whilst internet fraud is a serious 'menace' to the community, this was a case of not following through with a contractual arrangement to forward goods on receipt of payment;[23]
(b)the offence was not sophisticated and was not committed using false details, false identification or false bank accounts;[24] and
(c)Mr Kotnowski admitted the offence and pleaded guilty at the earliest opportunity.[25]
[23] ts 21.
[24] ts 21.
[25] ts 21 ‑ 22. See also ts 18.
The magistrate's sentencing remarks
The sentencing magistrate made the following findings:
(a)the amount involved in the deceit ($1,435) was not at the higher end of the scale (of offences) but, nevertheless, quite a blatant fraud on the victim;[26]
(b)whilst Mr Kotnowski's record was not an aggravating feature, the offence (for which he was being sentenced) was consistent with his past dishonest behaviour and record which revealed that, since 2016, he had been convicted of numerous dishonesty offences and had had the benefit of monetary penalties;[27]
(c)the fact that Mr Kotnowski had some $9,000[28] in outstanding fines might have suggested that those fines may not be paid, but these were not factors relevant to the sentence for this offence; and
(d)when consideration was given to (the facts of) the offence and its context, including the maximum penalty, together with the fact of Mr Kotnowski's past record, that placed the offence as one not out of character and consistent with his behaviour in the past three years, personal deterrence called for a sentence of imprisonment.
[26] ts 22.
[27] ts 22.
[28] It is not clear from the transcript whether the amount of $9,000 is an error in transcription as this amount is not consistent with the amounts stated as paid by Mr Kotnowski's counsel at first instance (being $120,000) or the amount stated to be outstanding ($109,000) by the author of the oral pre‑sentence report.
Grounds of appeal
The appellant appeals on two grounds, the first alleging error by the imposition of a sentence that is manifestly excessive (as to the type of sentence imposed), the second alleging error by failing to consider suspension of the term of imprisonment.
Ground 1 - manifest excess
This ground of appeal asserts implied rather than express error. The principles of implied error are well established.
Implied error arises when the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[29]
[29] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:
(1)the maximum sentence prescribed by law for the crime;
(2)the standards of sentencing customarily imposed with respect to it;
(3) the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and
(4)the offender's personal circumstances.[30]
[30] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
When sentencing an offender:
(a)s 6(1) of the Sentencing Act requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)s 6(2) of the Sentencing Act requires that the seriousness of the offence be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
Section 39 of the Sentencing Act prescribes the sentencing options in respect of natural persons. By s 39(3), a court must not impose a term of imprisonment[31] unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use any of the other options. Section 6(4) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[32]
Whether the sentence was manifestly excessive?
[31] See s 39(2)(h).
[32] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; DKN v The State of Western Australia [2018] WASCA 87 [35].
The maximum penalty for the offence of which Mr Kotnowski was convicted under s 409(1)(c) of the Criminal Code is 7 years' imprisonment.[33] On summary conviction, Mr Kotnowski was liable to imprisonment for 2 years and a fine of $24,000. It is relevant to observe that the highest amount that can be dealt with summarily for an offence of this nature is $50,000.[34]
[33] s 409(1)(h).
[34] s 409(2).
There is no general 'tariff' for sentences of fraud and deceit because of the very diverse circumstances in which the offence is committed and of the offenders who commit them. The cases establish that, in serious cases of fraud and stealing involving substantial sums of money, terms of immediate imprisonment have been imposed.[35]
[35] Pollock v The State of Western Australia [2011] WASCA 133 [71]; Anderson v The State of Western Australia [No 3] [2014] WASCA 190 [92]; Vargess v Hughes [2017] WASC 291 [27] ‑ [28] (Allanson J).
The place which the conduct of the appellant's offence occupies on the scale of seriousness of offending is, as the magistrate observed, not on the higher end of the scale. The offending was unsophisticated. Whilst the amount was not substantial, it was not a very small amount. But, the appellant's offending did not involve a course of conduct over a long period. Whilst the offence was not fleeting, as the advertisement was put on the internet website on 21 December 2018 and payment was made on 23 December 2018, it was not part of a continuing course of dishonest conduct.
It could be said that Mr Kotnowski's criminal history shows a persistent disregard for the law, particularly the law involving offences of dishonesty for which previous sentences have not served as a sufficient personal deterrent. However, in Veen v The Queen [No 2], the plurality observed:[36]
The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
[36] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).
Relevantly s 7(2)(b) and (c) of the Sentencing Act provide that an offence is not aggravated by the fact that the offender has a criminal record or a previous sentence has not achieved the purpose for which it was imposed. A lengthy criminal record results in no mitigation for good character. However, previous instances of the same kind of offending do not aggravate an offence and could not justify the imposition of a sentence greater than that which was otherwise appropriate.[37]
[37] Durward v Belton [2012] WASC 479 [29] (Pritchard J).
There are circumstances personal to the offender to be borne in mind. In particular, on the material before the magistrate, Mr Kotnowski appears:
(a)to have taken steps to rehabilitate himself. He had paid off a very large part of his outstanding fines; and
(b)to have been taking steps to break the cycle of breaking the law. It emerges from the presentence report and his counsel's submissions that Mr Kotnowski had recently (over the eight months prior to sentencing) taken steps to address the triggers that led him to a cycle of criminal behaviour, which appears to have substance (on the basis of the interviews with Mr Kotnowski's ex‑wife).
Having regard to:
(1)the maximum penalty for the offence;
(2)the facts and circumstances of the appellant's offending;
(3)the place which the appellant's offending occupies on the scale of seriousness of offences against s 409(1)(c) of the Criminal Code, outlined at [22] above;
(4)the appellant's personal circumstances including those outlined at [25] above;
(5)the mitigating factor of the appellant's guilty plea at the earliest reasonable opportunity; and
(6)all other relevant sentencing considerations;
a sentence of imprisonment is unreasonable or plainly unjust.
In my view, it was not open, on the exercise of a sound sentencing discretion, to impose a sentence of imprisonment as the seriousness of the offence nor the protection of the community justified a sentence of imprisonment.
I would grant leave to appeal on ground 1 and uphold the appeal on that ground. Consequently, the sentencing discretion is reopened and it is unnecessary to deal with ground 2.
Resentencing
In re‑exercising the sentencing discretion, I am of the view that a fine is an appropriate disposition.
Section 53(3) prohibits the court from imposing a fine if satisfied that after paying compensation to the victim (pursuant to a compensation order), the offender will be unable to pay the fine within a reasonable time.
At the hearing of the appeal, the court was informed that:
(a)the records of the Sentence Information Unit show that, as at:
(i)9 August 2019 (the date of sentence at first instance), Mr Kotnowski had $22,680 in outstanding fines; and
(ii)the date of the hearing of the appeal, $7,056 remained outstanding;
(b)in addition to the sum of $120,000 that Mr Kotnowsi had previously paid in outstanding fines, Mr Kotnowski had paid an additional sum of $6,900 in fines;
(c)despite being in custody, Mr Kotnowski continues to have employment (available if released) as a tyre fitter and car cleaner; and
(d)Mr Kotnowski was in a position to obtain a loan to pay off his outstanding fines.
In light of these circumstances, I am satisfied that the requirements of s 53(3) have been met.
Section 53(1) of the Sentencing Act requires the court to take into account, when deciding the amount of the fine, so far as is practicable, the means of the offender and the extent to which payment of the fine will burden the offender.
Taking into account the matters in s 53(1) and the fact that Mr Kotnowski has served 65 days in custody for the offence for which he is being resentenced, I am of the opinion that a fine of $1,000 should be imposed. In imposing this amount, I have had regard to the fact that, during those 65 days, Mr Kotnowski has also been serving concurrent time to pay off fines. If this were not the case, I would have considered giving greater credit for time served in determining an appropriate sentence, by having regard to sentencing options in s 39(2) of the Sentencing Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Hon Justice Smith11 OCTOBER 2019
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