Kuhnert v Fyneman
[2015] WASC 257
•16 JULY 2015
KUHNERT -v- FYNEMAN [2015] WASC 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 257 | |
| 16/07/2015 | |||
| Case No: | SJA:1037/2015 | 3 JUNE 2015 | |
| Coram: | KENNETH MARTIN J | 3/06/15 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on ground 1 Appeal allowed on ground 1 Sentence set aside and appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL RUDOLPH KUHNERT RONALD HENRY FYNEMAN |
Catchwords: | Criminal law Appeal against sentence Criminal Code Act Compilation Act 1913 (WA), s 378 Stealing as a servant Appellant sentenced to 18 months' immediate imprisonment Sentencing Act 1995 (WA), s 9AA(5) Failure to state extent of reduction for plea of guilty in open court Whether sentence infringed first limb of totality principle Whether sentence of suspended imprisonment was appropriate Resentenced to identical sentence in substance but not form Turns on own facts Summary conviction penalties Criminal Code Act Compilation Act 1913 (WA), s 5 and s 426 Sentences of imprisonment imposed for certain offences above jurisdictional limit |
Legislation: | Criminal Code Act Compilation Act 1913 (WA), s 5, s 378, s 426 Sentencing Act 1995 (WA), s 9AA |
Case References: | Dimanopoulos v The State of Western Australia [2011] WASCA 62 Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 Forkin v The State of Western Australia [2013] WASCA 51 Heaney v The State of Western Australia [No 2] [2013] WASCA 238 Johnson v Hayter [2001] WASCA 118 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Moody v French [2008] WASCA 67; (2008) 36 WAR 393 Ness v The State of Western Australia [No 2] [2013] WASCA 56 Neumann v The State of Western Australia [2013] WASCA 70 Poletti v Adams [2005] WASC 66 Powell v The State of Western Australia [2010] WASC 54 Roberts v The State of Western Australia [2014] WASCA 239 Roffey v Western Australia [2007] WASCA 246 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 Rowsell v The State of Western Australia [2015] WASCA 2 Samuel v The State of Western Australia [2004] WASCA 154 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Seeto v The State of Western Australia [2014] WASCA 221 Wallam v Grosveld [2015] WASC 145 Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826 Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RONALD HENRY FYNEMAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 82775-82876 of 2014
Catchwords:
Criminal law - Appeal against sentence - Criminal Code Act Compilation Act 1913 (WA), s 378 - Stealing as a servant - Appellant sentenced to 18 months' immediate imprisonment - Sentencing Act 1995 (WA), s 9AA(5) - Failure to state extent of reduction for plea of guilty in open court - Whether sentence infringed first limb of totality principle - Whether sentence of suspended imprisonment was appropriate - Resentenced to identical sentence in substance but not form - Turns on own facts
Summary conviction penalties - Criminal Code Act Compilation Act 1913 (WA), s 5 and s 426 - Sentences of imprisonment imposed for certain offences above jurisdictional limit
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 5, s 378, s 426
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted on ground 1
Appeal allowed on ground 1
Sentence set aside and appellant resentenced
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms G Beggs
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dimanopoulos v The State of Western Australia [2011] WASCA 62
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Forkin v The State of Western Australia [2013] WASCA 51
Heaney v The State of Western Australia [No 2] [2013] WASCA 238
Johnson v Hayter [2001] WASCA 118
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Neumann v The State of Western Australia [2013] WASCA 70
Poletti v Adams [2005] WASC 66
Powell v The State of Western Australia [2010] WASC 54
Roberts v The State of Western Australia [2014] WASCA 239
Roffey v Western Australia [2007] WASCA 246
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Rowsell v The State of Western Australia [2015] WASCA 2
Samuel v The State of Western Australia [2004] WASCA 154
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Seeto v The State of Western Australia [2014] WASCA 221
Wallam v Grosveld [2015] WASC 145
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826
Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123
- KENNETH MARTIN J:
(This is an edited version of my reasons delivered ex tempore on 3 June 2015.)
Introduction
1 This is an application for leave to appeal against sentence by the appellant, Mr Kuhnert, in respect of the sentence of 18 months' immediate imprisonment he received as a result of pleading guilty to 102 counts of stealing as a servant, under s 378(7) of the Criminal Code (WA).
2 The appeal has been expedited for hearing, in circumstances where Mr Kuhnert is presently imprisoned at Acacia Prison, and he has been so imprisoned since the date of his sentencing by Chief Magistrate Heath at the Perth Magistrates Court on 17 February 2015 (having pleaded guilty on 19 January 2015 to the 102 counts of stealing as a servant with which he was charged).
3 Mr Kuhnert was sentenced on 17 February 2015 to 18 months' immediate imprisonment, with eligibility for parole 9 months subsequent to the date of sentencing, and a compensation order in favour of the victim, The Nursing Post Pty Ltd ('The Nursing Post') trading as The Health Scoop, to the amount of $82,010.65 (being the accumulated total of the amounts stolen across all 102 counts of stealing as a servant). Mr Kuhnert seeks to appeal that sentence on three grounds.
4 Before turning to Mr Kuhnert's grounds of appeal, it will be helpful to detail the proceedings in which Mr Kuhnert was sentenced, particularly the sentencing remarks.
Proceedings in the Magistrates Court
5 On 19 January 2015, Mr Kuhnert came before Magistrate Roberts in the Perth Magistrates Court. Having been charged with 102 counts of stealing as a servant, Mr Kuhnert pleaded guilty to all 102 counts, though each individual count was not read out to Mr Kuhnert, upon Mr Kuhnert's consent to that course of action (ts 2). The matter was thereby adjourned to 17 February 2015 for the purpose of obtaining a pre-sentence report.
6 On 17 February 2015, Chief Magistrate Heath dealt with Mr Kuhnert's matter from a sentencing perspective, as a court of summary jurisdiction.
7 The learned Chief Magistrate proceeded to sentence Mr Kuhnert, having before him the details of his offending; notification of his pleas of guilty to all 102 charges; and the pre-sentence report concerning Mr Kuhnert - prepared by a Senior Community Corrections Officer from the Department of Corrective Services.
8 With respect to the sentence of immediate imprisonment imposed, his Honour's remarks were brief. He said:
Mr Kuhnert, you have pleaded guilty at an early opportunity in relation to these matters, and they were adjourned for the purpose of a pre-sentence report. You have a small record, principally traffic offences, and you have no offences of dishonesty (ts 4).
9 His Honour mentioned the salient aspects of Mr Kuhnert's offences of stealing as a servant over a 13-month period. His Honour concluded:
During the 13-month period covered by these offences, you on 102 occasions stole money by redirecting client invoices to a total of just over $82,000. Whilst you have pleaded guilty, you have, as I've noted, no dishonesty records, and it's an offence that - offences that have arisen as a result of a gambling addiction rather than as a result of greed for personal benefit directly (ts4).
10 His Honour then concluded:
It is so serious, involving such a large amount, that a term of immediate imprisonment is the only appropriate punishment. You will be sentenced to 18 months' imprisonment, with eligibility for parole, with a compensation order in the amount contained in the prosecution notices. That will be achieved by sentencing you to six months' imprisonment on each of the charges, with three to be cumulative so that it makes a total of 18 months. I will make you eligible for parole, so you can be considered for release upon serving half of that time (ts 4).
11 Before outlining the statutory context of the offence of stealing as a servant, it will be helpful to briefly provide some details of Mr Kuhnert's 102 offences, as well as Mr Kuhnert's personal circumstances relevant to his sentencing.
The facts and circumstances of the offences
12 The materials from which I derive the circumstances of Mr Kuhnert's offending are chiefly the prosecutor's submissions at the hearing on sentencing (to which Mr Kuhnert made no objection - ts3); the respondent's outline of submissions; and Mr Kuhnert's pre-sentence report.
13 The conduct which gave rise to Mr Kuhnert's 102 offences of stealing as a servant occurred over the period 24 October 2012 to 18 November 2013, at a time when Mr Kuhnert was employed by The Nursing Post between February 2012 and November 2013. In his employment with The Nursing Post, Mr Kuhnert was responsible for sales and marketing with respect to The Health Scoop - a career and education magazine for health professionals. In his employment role, Mr Kuhnert had direct contact with clients of The Health Scoop who had purchased advertising space with the magazine.
14 The standard manner by which clients of The Health Scoop made their payments to that business was by direct deposit into the bank account of The Health Scoop, held with National Australia Bank. By email communications in October 2012, Mr Kuhnert dishonestly advised numerous clients that The Health Scoop's bank account details had changed and future invoices should be paid into a new bank account, the details for which Mr Kuhnert provided - those bank details corresponding with his personal bank account (also held with National Australia Bank).
15 On that basis, numerous clients were deceived into paying moneys directly into the bank account of Mr Kuhnert, believing that they were depositing funds into the bank account of The Health Scoop as payment for advertising space in The Health Scoop magazine. Deposits of that character occurred on 102 occasions, giving rise to Mr Kuhnert's 102 offences of stealing as a servant. The individual amounts Mr Kuhnert stole by this exercise in deceit range from $245.02 to $3,602.50.
16 The learned Chief Magistrate, in his sentencing remarks, concluded that Mr Kuhnert's offending had arisen by virtue of a gambling addiction - as opposed to 'a result of greed for personal benefit directly'. That conclusion evidently arises from consideration of Mr Kuhnert's pre-sentence report, which notes that Mr Kuhnert stated he had a 'significant' gambling addiction and his predominant reason for engaging in fraudulent behaviour with respect to clients of The Health Scoop was to buttress his income with additional funds, presumably to feed his gambling addiction.
17 Finally, Mr Kuhnert's pre-sentence report also notes a small history of prior offences, largely traffic offences pertaining to driving without a valid licence, but also a fine as a result of a charge of disorderly conduct. On the basis of that history of offending, the learned Chief Magistrate quite appropriately concluded that Mr Kuhnert had no prior 'dishonesty' offences.
18 Having canvassed relevant aspects of Mr Kuhnert's offending as well as his personal circumstances, it is necessary to consider the statutory framework for the offence of stealing as a servant.
Statutory framework for the offence of stealing as a servant and summary conviction penalties
19 Stealing as a servant is a serious offence. It is an indictable offence under the Criminal Code. Section 378 of the Criminal Code deals with various offences in relation to the stealing of property, particularly by people in positions of trust and responsibility. Section 378(7) reads:
If the offender is a clerk or servant, and the thing stolen is the property of his employer or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years.
20 I note also the provisions of s 378(9)(b), as regards money received by an offender and, likewise, the corresponding consequence of contravening that section is a liability to a 10-year imprisonment period.
21 However, in the present case, the charges were dealt with summarily in respect of 102 different stealing offences, attached to a lengthy prosecution notice.
22 Accordingly, s 426 of the Criminal Code applied, meaning that the theoretical exposure of an offender pleading guilty was less than it would have been had, say, there been a trial by indictment before the District Court of Western Australia. Section 426(1) provides:
Subsection (2) applies to the following indictable offences -
… [relevantly]
(b) an offence under section 378 to which Item … (7) of that section applies.
23 Within s 426, subsection (2) provides:
Summary conviction penalty: for an offence to which this subsection applies where the value of the property in question does not exceed $10,000, unless subsection (4) applies - imprisonment for 2 years and a fine of $24,000.
24 It is necessary then to have regard to the correlatively referred provision of s 426(4), which states:
Summary conviction penalty: for an offence -
(a) under s 378 or … [I will not mention the other subsections]
…
where the value of the property in question does not exceed $1000 - a fine of $6000.
25 Returning to Mr Kuhnert's offending, by the prosecution notice, the circumstances of this offending relevantly concerned 102 different counts of stealing as a servant. In all, they constituted the theft of $82,010.65 in moneys from his employer over a period of about 13 months through misdirected direct payments directed wrongly by clients into the bank account of Mr Kuhnert, upon deceitful instructions he gave clients of his then employer.
26 Of the 102 counts, 83 involved the theft of monetary amounts less than $1,000. The remaining 19 concerned the theft of amounts greater than $1,000.
27 Accordingly, by s 426(2) of the Criminal Code,when Mr Kuhnert came before the Chief Magistrate for sentencing, it was open to impose terms of imprisonment for the (19) counts that involved theft of amounts greater than $1,000. Upon the remaining (83) counts, Mr Kuhnert could not, by reason of s 426(4)(a) of the Criminal Code, be sentenced to any term of imprisonment, immediate or otherwise. A fine of $6,000 maximum was the greatest punishment he could receive on these 83 offences, if dealt with summarily.
28 I make those comments, however, with one caveat, being the impact of s 5 of the Criminal Code, which it will be necessary to consider.
Criminal Code, s 5: summary conviction penalties
29 Section 5 is titled 'Summary conviction penalty, meaning and effect of' and provides for the circumstances in which a charge can be tried summarily rather than on indictment. Relevantly to the presenting circumstances is s 5(9), which reads:
If the court -
(a) convicts the accused of the offence charged after a plea of guilty or otherwise; and
(b) considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,
the court may commit the accused to a court of competent jurisdiction for sentence.
30 'Court' is defined by s 5(1)(b) to mean a 'court of summary jurisdiction'. Section 1 defines 'court of summary jurisdiction' to expressly include within its ambit the Magistrates Court. A 'court of competent jurisdiction' is not defined in the Criminal Code. But evidently, this must refer to any court with the jurisdiction to sentence as to an indictable offence - in practice, usually the District Court of Western Australia.
31 If the learned Chief Magistrate considered that any sentence he could have imposed upon Mr Kuhnert, with respect to any of Mr Kuhnert's 102 offences, would have been incommensurate with the seriousness of Mr Kuhnert's offending, it would thereby have been open to his Honour to commit Mr Kuhnert to the District Court for sentencing.
32 There was, until the Court of Appeal's decision in Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826, a degree of controversy as to whether a Magistrate (of the former Court of Petty Sessions) when sentencing an offender under summary jurisdiction could take as a starting point, when sentencing, the maximum statutory penalty for the relevant offence, or whether the appropriate starting point was the jurisdictional limit provided by a statutory summary conviction penalty. The Court of Appeal, in Wiltshire, resolved the conflict, concluding it was proper for a magistrate to utilise the maximum statutory penalty as a starting point. Pullin, Buss and Mazza JJA at [30] adopted the sentencing approach outlined by Blaxell J in Poletti v Adams [2005] WASC 66 [24]:
It follows, in my view, that a Magistrate may sentence an offender to a term which falls below the cap set by the statutory conviction penalty, notwithstanding that the starting point in calculating that term was in excess of that penalty.
33 The limits set by the various summary conviction penalties in the Criminal Code are not maximum penalties. Rather, they are jurisdictional limits (see Johnson v Hayter [2001] WASCA 118 [10] (Miller J), cited with approval in Wiltshire at [26]).
34 Returning to the sentencing of Mr Kuhnert, it is evident that he was punished, with respect to a number of the 102 offences, above the level of the relevant summary conviction penalty specified by s 426 of the Criminal Code. The learned Chief Magistrate imposed sentences of imprisonment upon Mr Kuhnert for 83 offences for which the summary conviction penalty, given that the individual amounts stolen were below $1,000, was a fine to the maximum amount of $6,000.
35 Of the three sentences of (2 years') imprisonment that were ordered to be served cumulatively (PE 82775/2014, PE 82776/2014, and PE 82777/2014), all three are offences where Mr Kuhnert stole an amount less than $1,000 and hence the maximum penalty was a fine of $6,000.
36 Given that the first three of Mr Kuhnert's 102 offences under the prosecution notice are those that were ordered to be served cumulatively, the Chief Magistrate's selection of the three first-mentioned offences to be served cumulatively was evidently an administrative oversight, with those three offences being the first three cabs off the rank, as it were, with a rank consisting of 102 otherwise similar offences.
37 No mention is made in the sentencing remarks of the varying summary conviction penalties for Mr Kuhnert's offences, nor of the maximum statutory penalty applicable to the offending.
38 His Honour clearly did not arrive at the conclusion, explicit or otherwise, that it was necessary to commit Mr Kuhnert to the District Court for sentencing above the summary conviction penalties relevant to Mr Kuhnert's offending. Rather, it appears from the transcript of the hearing at which Mr Kuhnert was sentenced that he was occupied with determining a total effective sentence suitable to Mr Kuhnert's circumstances (both those of his offending and personally). This was 18 months' immediate imprisonment, achieved by imposing sentences of 6 months' immediate imprisonment for each offence - but as to which only three periods were to be served cumulatively.
39 The errors made had no practical effect upon the total effective sentence Mr Kuhnert received. Mr Kuhnert could, quite lawfully, have been sentenced to the same total effective sentence had, say, the three selected offences for cumulative sentences of 6 months' immediate imprisonment been applied to offences involving stolen amounts greater than $1,000 and, for the remaining offences, imposed fines below $6,000. Nevertheless, it will be necessary to resentence Mr Kuhnert to correct those jurisdictional errors.
40 But my conclusion with regard to those jurisdictional errors goes no way to resolving the three grounds of appeal upon which Mr Kuhnert commenced this appeal. It is necessary, in presenting circumstances, to now consider Mr Kuhnert's appeal grounds to determine whether any of his appeal grounds (and the application for leave to bring the appeal on the basis of any or all of those grounds) are made out, and, following on from that analysis, whether Mr Kuhnert needs to be resentenced in any other substantive respects.
Grounds of appeal
41 By way of his appeal notice filed on 29 April 2015, Mr Kuhnert raises three grounds of appeal against the sentence imposed by the learned Chief Magistrate:
1. The learned sentencing Magistrate erred in law in failing either to give the appellant credit for his pleas of guilty, or to specify the reduction to his head sentence as required by s 9AA(5) of the Sentencing Act 1995 (WA).
2. The learned sentencing Magistrate erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the offender personally.
3. The learned sentencing Magistrate erred in ordering that the term of imprisonment imposed be served immediately, when in all the circumstances it was open to suspend the term.
42 Mr Kuhnert has relied upon an outline of written submissions, undated, but which was prepared for him by Legal Aid. Mr Kuhnert appeared in person, without legal representation. Mr Kuhnert's submissions are of 24 paragraphs. They raise, in particular, the decisions: Dimanopoulos v The State of Western Australia [2011] WASCA 62; and Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123.
Disposition of the appeal
43 I must be satisfied that Mr Kuhnert's appeal grounds reach a standard of being reasonably arguable for the purposes of granting leave (see Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473).
44 Given that Mr Kuhnert is presently in custody, I do not wish to cause him to wait any further for the resolution of his appeal. Accordingly, I will deliver my reasons for decision immediately, rather than reserve.
45 In brief, I have concluded that there is no merit at all in Mr Kuhnert's second and third grounds. On those grounds I would not allow leave to appeal, for reasons that I explain in my remarks that follow.
46 However, with respect to ground one of Mr Kuhnert's appeal, I both grant leave and then allow that appeal.
47 In all the circumstances, however, I resentence Mr Kuhnert to a level of immediate imprisonment akin to that as was imposed by the learned Chief Magistrate.
Grounds two and three of the appeal: the totality principle and suspended sentences
48 Grounds two and three under Mr Kuhnert's appeal notice somewhat overlap, in that the error of law asserted in each ground of appeal arises from a submission that the Chief Magistrate erred in law by effectively imposing too harsh a sentence.
49 The first ground submits that his Honour erred in law by imposing a sentence that infringed the first limb of the 'totality principle'.
50 The second ground contends the learned Chief Magistrate erred in law by failing to impose a total effective sentence that was suspended, rather than immediate.
51 I first consider the application of the totality principle, before turning to the question of a suspended imprisonment - albeit the reasons for which the two grounds fail are largely the same.
Ground two: the totality principle
52 The totality principle was explained by McLure JA (as her Honour then was) in Roffey v Western Australia [2007] WASCA 246 [24] - [25]:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
53 Mr Kuhnert submits, by his outline of submissions, that the first limb of the totality principle was infringed (see his written submissions at par 11). He makes that submission by advancing essentially two considerations.
54 First, Mr Kuhnert makes explicit reference to his personal circumstances, particularly his gambling addiction, then his asserted remorse for his actions, expressed at the hearing for sentencing on 17 February 2015, and see at page 4 of his pre-sentence report. For those personal circumstances to bear any relationship to the first limb of the totality principle, they must either affect the total effective sentence imposed upon Mr Kuhnert, which they clearly do not, or the overall criminality of Mr Kuhnert's conduct. As to the latter, I assess Mr Kuhnert's submission to be that his personal circumstances render the overall criminality of his offending lower than it otherwise would have been. Thereby, having regard to Mr Kuhnert's personal circumstances, the end sentence imposed by the learned Chief Magistrate is said to be out of proportion to the overall (allegedly reduced) criminality of Mr Kuhnert's conduct.
55 Second, Mr Kuhnert next submits that his sentence was out of proportion to the overall criminality of his conduct, by reference to the decisions in Zande and Dimanopoulos. In those cases, terms of imprisonment of 2 years were imposed (on indictment), in circumstances where the amounts stolen were respectively $124,633.67 and $290,711.58. The bare fact of the higher amounts stolen in those cases, in conjunction with the comparative length of sentence of immediate imprisonment, is said to support the conclusion that the Chief Magistrate infringed the first limb of the totality principle.
56 To put the point slightly differently, if the amounts stolen in Zande and Dimanopoulos were far greater than in Mr Kuhnert's case, but roughly equal sentences of imprisonment were imposed upon Mr Zande, Ms Dimanopoulos, and now Mr Kuhnert, then, assuming the sentences imposed in Zande and Dimanopoulos were appropriate, Mr Kuhnert's sentence must be too severe by comparison.
57 The second ground of appeal must fail. In the context of a stealing scenario that was clearly calculated, and which was implemented over a period of 13 months - by reference to 102 different incidents of stealing, and which ultimately caused $82,010.65 to be paid into Mr Kuhnert's bank account by deceived customers of his then employer, that an ultimate 18-month sentence (with eligibility for parole after half of that sentence had been served), could not rationally, on any view of matters, be said to infringe the first limb of the totality principle, as a punishment that did not 'fit the crime'.
58 A total effective sentence of 18 months' imprisonment, in the face of a maximum summary conviction penalty of 2 years (where the maximum statutory indictable penalty was 10 years) would not, even for one offence, in my view, present as outside the range of a sound sentencing discretion, even taking full account of Mr Kuhnert's gambling addiction and his expressed remorse.
59 The decisions of Zande and Dimanopoulos, as the respondent submits in their written submissions at pars 32 - 34, are very different cases. I also accept the State's fully appropriate submission, at par 35 of their written submissions, that, ultimately, sentencing ranges only act as a guide in sentencing (Neumann v The State of Western Australia [2013] WASCA 70 [27]).
60 Mr Kuhnert's submission on this ground also ignores a fundamental difference with respect to the post-offence behaviour of the offenders in Zande and Dimanopoulos, and himself. Zande and Dimanopoulos were both trials of indictment and appeals from District Court Judges' sentencing dispositions, in which there had been reparation of all the stolen money and property made by the accused, prior to sentencing. The amount stolen by Mr Kuhnert was a significant amount of money and it has not been repaid to Mr Kuhnert's then employer, The Nursing Post. Although a restoration order has been made and Mr Kuhnert has foreshadowed an intention to pay back that money when he is able to (ts 3), the fact confronting the Chief Magistrate, from a sentencing perspective, was that none of the stolen money had been repaid.
61 Courts treat stealing crimes of this nature very seriously. They manifest a grave breach of trust by people in responsible positions. From a general deterrence perspective, courts have always treated these charges seriously, and that is reflected by the fact that the maximum penalty on indictment for stealing as a servant is a maximum period of 10 years' imprisonment (see Dimanopoulos at [19]). Mr Kuhnert's matter is a case where the end punishment did fit his crime.
62 So, in terms of ground 2 of the appeal, as regards its argument that an 18-month sentence was too high and infringed the first limb of the totality principle, in terms of the sentence not being commensurate with the overall criminality of Mr Kuhnert's conduct, that conclusion is simply not arguable. I would not give leave to appeal in respect of ground 2 as regards an infringement of the totality principle. For completeness sake, I add that I do not think that an 18-month sentence of immediate imprisonment, with eligibility for parole after 9 months, would violate the second limb of the totality principle.
Ground three: Suspended Sentence
63 Likewise, as regards ground 3 of the appeal, which argues that there was error by not imposing a suspended sentence, it seems to me that there was no error in circumstances where the learned Chief Magistrate, as he concluded in his sentencing remarks, said that imprisonment was the only appropriate option in all the circumstances.
64 Principles regarding whether it is an error of law to fail to order a term of suspended imprisonment, instead of immediate imprisonment, are set out in a number of decisions - see my reasons in Wallam v Grosveld [2015] WASC 145 at [59]. In that case, I noted the statutory requirement in s 39 of the Sentencing Act 1995 (WA) that a term of immediate imprisonment must not be imposed, unless a court is satisfied that a term of suspended imprisonment would not be appropriate (among other sentencing options).
65 In Wallam, I had noted observations in Ness v The State of Western Australia [No 2] [2013] WASCA 56 by Buss JA (McLure P agreeing at [1]) at [26] - [27]:
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] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
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.
66 Mr Kuhnert, by his written submissions, refers to Powell v The State of Western Australia [2010] WASC 54, where it was stated at [42] that where a term of suspended imprisonment is 'reasonably open' it would 'usually be necessary for the sentencing Judge to make some reference to why the less severe option was not appropriate' (citing Samuel v The State of Western Australia [2004] WASCA 154 [34] (Roberts-Smith J)). However, in the very same paragraph, Simmonds J also states:
[i]f it were 'readily apparent' that suspended imprisonment was not 'realistically open', then a failure to refer to it expressly would not be an error.
67 Further, the preceding paragraph of Powell, cites the judgment of Pullin JA in Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42], as authority for the proposition that a failure to refer to a sentencing option less onerous than immediate imprisonment is not necessarily an indication that the sentencing judge or magistrate overlooked that particular sentencing option.
68 For the presenting circumstances, once regard is had to the underlying circumstances for the Chief Magistrate's sentencing remarks, it is clear, I think, that his Honour had turned his mind to the possibility of a suspended sentence, but dismissed that sentencing option as inappropriate. At page 4 of the transcript for the hearing of 17 February 2015, his Honour states:
[Mr Kuhnert's offending] is so serious, involving such a large amount, that a term of immediate imprisonment is the only appropriate punishment.
69 It would have been superfluous for the Chief Magistrate, having arrived at that conclusion, to then explicitly consider, and dismiss, the (non)possibility of sentencing Mr Kuhnert to a suspended sentence.
70 The next question, therefore, is whether the Chief Magistrate was correct to come to the conclusion that a term of immediate imprisonment was the only appropriate sentencing option. Towards that question, I accept the respondent's submission at par 38, made by reference to Zande at [33], Dimanopoulos at [19] and Heaney v The State of Western Australia [No 2] [2013] WASCA 238 [22], that in sentencing for multiple offences of stealing as a servant, where the amount stolen is substantial (as it was here), then a term of immediate imprisonment is ordinarily the appropriate penalty.
71 As I noted with respect to Mr Kuhnert's second appeal ground, in a scenario where there has been no reparation of the amount of money stolen, particularly by comparison to cases such as Dimanopoulos and Zande where, again, the offenders had repaid in full the amounts stolen by the date of sentencing, and where the offenders in those cases received sentences of 2 years' imprisonment for greater amounts stolen, the argument that, by comparison, Mr Kuhnert's sentence was too great, is an argument that simply cannot be sustained, given the underlying circumstances of the offending.
72 The major factor in favour of Mr Kuhnert at sentencing was his plea of guilty at the earliest reasonable opportunity, which is the subject of his first appeal ground that I separately determine below. But as regards an alleged failure to impose a period of suspended imprisonment, I am not persuaded that the option of imposing a suspended sentence upon Mr Kuhnert was out of the Chief Magistrate's mind and, further, I am persuaded that his Honour was quite correct to conclude, as indeed I would have concluded on these facts, that this was simply not an option open in all the circumstances.
73 Accordingly, for essentially the same reasons, with respect to grounds two and three of Mr Kuhnert's notice of appeal of 29 April 2015, I must refuse to grant leave for those grounds.
Ground one: s 9AA and Mr Kuhnert's plea of guilty
74 The pivotal provision of the Sentencing Act with respect to Mr Kuhnert's ground one of his appeal is s 9AA.
75 The relevant subsections are s 9AA(2), s 9AA(4) and s 9AA(5), in these terms:
(1) …
(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.
…
(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.
76 'Head sentence' is defined under s 9AA(1):
In this section -
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.
77 A difficulty in presenting circumstances, as is conceded by the State in their written submissions at par 16 and by the State's counsel, Ms Beggs, at the hearing for this appeal, is that there was no identification by the Chief Magistrate of the extent of any discount given for Mr Kuhnert's early plea of guilty.
78 The law concerning s 9AA(2) of the Sentencing Act, which it is necessary to consider as a whole as regards this submission, is found in Forkin v The State of Western Australia [2013] WASCA 51, where McLure P, at [21], detailed the process by which a sentencing judge should proceed to sentence, if s 9AA is in play:
(1) where there is to be a reduction under s 9AA(2) for a plea of guilty, s 9AA does not require a sentencing judge to expressly identify the head sentence provided the actual percentage reduction that has been made is otherwise clear from the sentencing judge's reasons;
(2) any discount for a plea of guilty must be to the head sentence (that is, before the head sentence is discounted for any other mitigating factors);
(3) the matters specified in subs (2) ('to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea') exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and if so, the extent of the discount. Remorse and the other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime (as explained by the majority in Cameron), are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty;
(4) however, remorse and the other subjective considerations referred to in (3) may be taken into account under s 9AA(6); and
(5) s 9AA does not require the sentencing judge to state the extent of the reduction, individual or cumulative, given for mitigating factors other than the plea of guilty.
79 Notwithstanding, Forkin,there remains some uncertainty over whether s 9AA requires a sentencing judge to explicitly state, in the process of sentencing, a head sentence arrived at, for the purpose of applying relevant discounts, before taking account of the early plea of guilty and other mitigating factors (or, at the very least, whether it is good practice to do so). I make that observation noting today's appeal is not an appropriate vehicle for resolving that outstanding issue, particularly given the indication in Seeto v The State of Western Australia [2014] WASCA 221, that the matter will be considered again when such an appropriate vehicle arises (see Seeto at [1] per Martin CJ and at [10] per Mazza JA. Hall J, in that decision, discusses at some length difficulties associated with sentencing in accordance with s 9AA at [62] - [72]).
80 From a sentencing perspective as regards s 9AA, the requirement is to specify the extent of the reduction where the sentencing Judge or Magistrate has decided to allow a discount for an early plea of guilty. I say 'decided', because there is a further issue here. As I read the decisions in Forkin, noting the earlier remarks in Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [59] (McLure P) (citing Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [33] - [35] (Steytler P, Wheeler, McLure & Buss JJA), a decision published prior to the enactment of s 9AA of the Sentencing Act),there is still some disagreement as to whether the word 'may', as it is used in s 9AA of the Sentencing Act, requires a discount to be applied in every case where there is a plea of guilty, despite that provision being expressed under prima facie discretionary language.
81 The relevant legislation does not use the expression 'shall', as it might have. Nevertheless, as has been observed in prior decisions (see Moody v French at [37] - [38]) a scenario in which a court might, in the face of an early plea of guilty, decide not to grant a discount to a sentence to take account of that fact, would be a rare one. And in the context of the relatively new s 9AA, and McLure P's remarks in Forkin at [21] - that the reduction granted pursuant to s 9AA is only to reflect the administrative benefit, if any, gained by virtue of an offender's early plea of guilty - it would seem to be a rare case indeed where a plea of guilty would lead to no administrative benefit. There must always, it would seem, be an administrative benefit in saving curial and other systemic resources of the justice system that would otherwise be consumed seeking a conviction at trial.
82 For this particular case, my reading of the learned Chief Magistrate's sentencing remarks is such that I can identify his Honour referred twice to the plea of guilty in his opening paragraph, then in his penultimate paragraph of his sentencing remarks. I do not think Mr Kuhnert's early plea of guilty, and a reduction in sentence that should usually come with that plea, escaped his attention. In fact, quite to the contrary, he did, on my assessment, take Mr Kuhnert's early plea of guilty into account when sentencing. But the inescapable end difficulty is that his Honour did not, as was required by s 9AA, specifically state the extent to which he had reduced Mr Kuhnert's sentence accordingly. It is evident, then, as is accepted by the DPP, that his Honour erred in law when sentencing Mr Kuhnert, by failing to specify the extent of the reduction that was given to Mr Kuhnert for his early plea of guilty.
The principles applicable in re-sentencing: difficulties that arise with summary conviction penalties
83 Having determined that the learned Chief Magistrate erred with respect to the operation of s 9AA of the Sentencing Act, I grant Mr Kuhnert leave as to ground 1 of his appeal notice filed on 29 April 2015, and allow his appeal on that ground.
84 It is submitted, by way of pars 17 and 24 of the State's written submissions, by reference to the Court of Appeal's decision in Roberts v The State of Western Australia [2014] WASCA 239 [47] (Martin CJ, Buss & Mazza JJA) (citing the High Court in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell & Keane JJ)), that despite the error with respect to s 9AA, this appellate court's jurisdiction to intervene is only enlivened if the error is material, such that a conclusion is drawn that a different sentence should have been imposed.
85 But where, as I explained earlier, there were jurisdictional errors by imposing sentences of imprisonment for offences that carry a maximum summary conviction penalty of a fine, it is necessary here to re-approach the sentencing exercise again.
86 As it is necessary to resentence Mr Kuhnert regardless of whether or not the error with respect to s 9AA is assessed as material, the respondent's submission in respect of the s 9AA error is overtaken by the added considerations.
87 That said, I make it clear that I do not detect any error with respect to the sentencing principles applied in sentencing Mr Kuhnert - namely, the consideration of Mr Kuhnert's personal circumstances as relevant mitigating factors, and the aggregation of sentences for three of the 102 offences (assuming that the three offences selected were from the 19 offences that were capable of carrying a maxima of 2 years' imprisonment).
88 Nor do I assess any error with respect to the total effective sentence of 18 months' imprisonment (imposed by reference to three cumulative 6-month sentences of imprisonment).
89 The written submissions of the State contend that the ultimate sentencing outcome of an 18-month sentence could just as easily have been reached, for instance, by dealing with three offences on the basis that absent mitigation factors, sentences of 9 months' imprisonment were to be served cumulatively upon three of Mr Kuhnert's relevant offences (where terms of imprisonment were open to be imposed for those offences). That approach would have generated a position in terms of a head sentence of 27 months. From that position, it would have been open, in accord with what has been said in Forkin, to allow deductions first, for any early plea of guilty, and after that to reduce further for any other relevant mitigating factors.
90 As I mentioned earlier, it seems to me that the approach of making three offences cumulative and then make the remaining offences concurrent showed no error of principle. Likewise, I see no error in the end imposition of an 18-month net sentence of immediate imprisonment, with a 9-month period prior to eligibility for parole. The compensation order imposed was also appropriate.
91 So, in resentencing, I proceed on the basis that time already spent in custody is to be taken into account, which I am empowered to take account of under s 41(3)(c) of the Criminal Appeals Act and s 87(d) of the Sentencing Act. The replacement sentence in substitution that I impose will run from, effectively, the time that Mr Kuhnert commenced to serve his sentence on 17 February 2015.
92 In all the circumstances, I would accept the State's submission that a period of 9 months' imprisonment - in respect of each of three stealing offences that fall within the realm of s 426(2) - is appropriate. That starting position generates effectively on three counts a period of imprisonment of 27 months. To be explicit, and to avoid an administrative error as appears to have manifested in the court below, the chosen stealing offences that will be subject to cumulative sentences of 9 months' imprisonment are PE 82778/2014, PE 82780/2014 and PE 82789/2014, which had concerned underlying stolen amounts of $1081.30, $1,529, and $1,529 respectively.
93 Upon that head sentence of 27 months' imprisonment, I would allow a discount of 6 months to take account of Mr Kuhnert's early plea of guilty. That deduction will reduce his sentence down to 21 months. It is a percentage reduction of sentence of 22.22% (I note that the decision of Rowsell v The State of Western Australia [2015] WASCA 2[45] (McLure P & Newnes JA)stands as authority for the fact that a plea of guilty at the earliest reasonable opportunity does not automatically grant an offender the maximum discount of 25%). I then further reduce the 21-month period down by 3 months - to take account of general mitigatory factors as manifest here, namely, Mr Kuhnert's recognition and his expressed remorse in relation to what occurred, and the fact that he does not have an extensive criminal history. There are some minor traffic offences but, essentially, and as was recognised by the court below, there is no prior history of dishonesty. That 3-month reduction reduces the total effective sentence of imprisonment to 18 months. A suspended sentence is not appropriate given the gravity and extent of the offending. But there will be eligibility for parole after 9 months of the 18-month period of imprisonment has been served.
94 I also recognise Mr Kuhnert suffers from a gambling addiction which stimulated his criminal activity. This addiction caused him to seek money in a dishonest way from his employer and then, effectively, lose that money. A gambling addiction provides an explanation, but it is not an excuse. To the extent that it carries any significance at all, it is only from a perspective that Mr Kuhnert's behaviour did not involve him taking the money for a purpose other than indulging his gambling habit. There is an element of addiction and I have taken note of that, for what it is worth.
95 But, significantly, there has been no restoration or restitution of the total amount stolen, which was a significant amount of $82,010.65, stolen over the course of 102 offences across a period of approximately 13 months. That is behaviour the community needs to be reassured the judicial system recognises is unacceptable. It is thereby important to send out a strong message of general deterrence to persons who may believe that this sort of conduct against an employer might be viewed sympathetically by the courts. It will not. This is serious offending, notwithstanding that the sentencing process in this matter was carried out at summary level in the Magistrates Court.
96 So in the circumstances, 3 months will be deducted from the head sentence, as I would see it, in addition to the 6 months as an express allowance for Mr Kuhnert's early plea of guilty. That results then in a total deduction of 9 months imprisonment from the 27 months, and so a total effective sentence of 18 months.
97 As I have said, the term of immediate imprisonment should run from the time when Mr Kuhnert first went into custody.
98 So although the appeal has succeeded in respect of ground 1, and I have needed to resentence Mr Kuhnert, the ultimate outcome does not substantially alter the current situation for Mr Kuhnert, in terms of the duration of his term of imprisonment and the time that must be served prior to him becoming eligible for parole.
99 I have also taken into account the material he put before me and, in particular, I have noted the expressed willingness of his employer to have Mr Kuhnert back. That is a good thing, but nothing in the letter of 7 May 2015 provided to me today suggested that such willingness on the part of Mr Kuhnert's employer would dissipate if Mr Kuhnert was not released some time sooner than November 2015, assuming Mr Kuhnert did become eligible for parole and he is granted parole at that time. So the appeal is allowed but the resentencing outcome is precisely the same as that currently applicable to Mr Kuhnert, in substance if not form.
100 It is also necessary, however, to resentence Mr Kuhnert with respect to the 83 offences for which a concurrent sentence of imprisonment was imposed on each count by the court below. In respect of the remaining 16 offences concerning which the amounts stolen were greater than $1,000, I impose sentences of 9 months' imprisonment. I order those sentences to be concurrent with the three offences upon which I imposed cumulative sentences of 9 months, discounted, before arriving at Mr Kuhnert's total effective sentence of 18 months' imprisonment.
101 In respect of the 83 offences which did not, by reason of s 426(4), find themselves susceptible at summary level to the imposition of sentences by way of imprisonment, I now impose a fine of $1 in respect of each, culminating in the total fine of $83.
102 Finally, for completeness sake, I will make a compensation order, in identical terms to that made by the court below, to the amount of $82,010.65, repayable to the victim in this matter, The Nursing Post.
103 On that basis, orders are made accordingly.
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