Laguer v Mortimer
[2018] ACTSC 169
•8 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Laguer v Mortimer and Ors |
Citation: | [2018] ACTSC 169 |
Hearing Dates: | 16 May 2018, 22 May 2018 |
DecisionDate: | 8 June 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [55] – [56]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether the Magistrate considered alternative sentence options – whether the Magistrate improperly considered that the offences were “white-collar crimes” |
Legislation Cited: | Bail Act 1992 (ACT) s 49(1) Crimes (Sentencing) Act 2005 (ACT) s 33(1)(h) Road Transport(Vehicle Registration) Act 1999 (ACT) s 22(1)(c) |
Cases Cited: | Cooper v Corsivy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Dalton v The Queen [2015] ACTCA 48 R v Tonari [2014] NSWCCA 232 |
Parties: | Mr Stefan Laguer (Appellant) Conrad Eric Mortimer (First Respondent) Simon McCabe (Second Respondent) James Adam Head (Third Respondent) Megan White (Fourth Respondent) William Brownlie (Fifth Respondent) |
Representation: | Counsel Self-represented with Mr A Riley (Appellant with McKenzie friend) Ms K McCann (Respondents) Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondents) |
File Numbers: | SCA 63 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Morrison Date of Decision: 7 August 2017 Case Title: R v Stefan Laguer Court File Number(s): CC 16/2495 |
LOUKAS-KARLSSON J:
This is an appeal from a sentence imposed in the Magistrates Court on 7 August 2017. The appellant was sentenced as follows:
| Charge | Offence | Date of Offence | Sentence Imposed |
| CC2016/2501 | Forgery, s 346 Criminal Code 2002 | Between 4 July 2015 and 30 August 2015 | 10 months imprisonment commencing 26 July 2017 and ending 25 May 2018 |
| CC2016/2495 | Obtaining property by deception, s 326 Criminal Code 2002 | 11 July 2015 | 7 months imprisonment commencing 26 December 2017 and ending 25 July 2018 (2 months cumulative on CC2016/2501) |
| CC2016/2496 | Obtaining property by deception, s 326 Criminal Code 2002 | 11 July 2015 | 5 months imprisonment commencing from 26 December 2017 and ending 25 May 2018 (Wholly concurrent with CC2016/2495) |
| CC2016/2497 | Obtaining property by deception, s 326 Criminal Code 2002 | 24 July 2015 | 5 months imprisonment commencing 26 April 2018 and ending 25 September 2018 (2 months cumulative on CC2016/2495) |
| CC2016/2498 | Unlawful possession of stolen property, s 324(1) Criminal Code 2002 | 3 December 2015 | 3 months imprisonment commencing 26 October 2018 and ending 25 January 2019 (1 month cumulative on CC2016/10983) |
| CC2016/8425 | Fail to appear, s 49(1) Bail Act 1992 | 2 August 2016 | 3 months imprisonment commencing on 26 July 2018 and ending 25 October 2018 (1 month cumulative on CC2016/2497) |
| CC2016/8793 | Fail to appear, s 49(1) Bail Act 1992 | 17 August 2016 | 3 months imprisonment commencing 26 August 2018 and ending 25 November 2018 (1 month cumulative on CC2016/8425) |
| CC2016/10983 | Drive whilst disqualified (repeat offender), s 32(1)(a) Road Transport (Driver Licensing) Act 1999 | 20 October 2016 | 3 months imprisonment, commencing 26 September 2018 and ending 25 December 2018 (1 month cumulative on CC2016/8793) |
| CC2016/7147 | Drive whilst disqualified (repeat offender), s 32(1)(a) Road Transport (Driver Licensing) Act 1999 | 8 July 2016 | Fine of $1,000.00, no time to pay, to be acquitted by time spent in custody |
| CC2016/2499 | Use false numberplate, s 22(1)(c) Road Transport(Vehicle Registration) Act 1999 | 3 December 2016 | Fine of $600.00, no time to pay, to be acquitted by time spent in custody |
The total term of imprisonment of 18 months commenced from 26 July 2017, to end on 25 January 2019. A non-parole period of 12 months was set commencing from 26 July 2017 to end on 25 July 2018. The sentence of imprisonment was backdated to 26 July 2017, taking into account the appellant’s pre-sentence custody of 13 days. The total period of disqualification was 3 years.
Grounds of Appeal
The appellant appealed against all of the abovementioned sentences on the sole ground that the sentences imposed by the Magistrate were manifestly excessive in all the circumstances.
The appellant sought the following orders:
(a)That the appeal be allowed.
(b)That the sentences imposed be set aside and sentences imposed according to law be substituted.
(c)Such further orders as the Court considers appropriate.
Submissions
The appellant did not make written submissions other than as outlined above at [3] – [4] at the time of filing a notice of appeal.
At the hearing, the appellant made an application to be assisted by a personal friend, in the capacity of a McKenzie’s friend, on the basis that he had been refused Legal Aid for this appeal, and that he has difficulty speaking in public.
The proposed McKenzie’s friend, Mr Riley, and the respondent, made submissions in relation to Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149 on the issue of whether Mr Riley should be permitted to appear as a McKenzie’s friend. The respondent assisted with submissions as to the law, however did not wish to be heard for or against the appearance of Mr Riley. I granted Mr Riley leave to appear on behalf of the appellant as a McKenzie’s friend.
Mr Riley made oral submissions on behalf of the appellant.
The respondent made submissions in reply to the matters raised by the appellant at the hearing.
Availability of Reparation Order
Appellant’s submissions
10. The first submission of the appellant was that the Magistrate erred by deciding not to make a reparation order on the basis that the prosecution did not seek a reparation order. The appellant submitted that the Magistrate did not seek evidence as to whether the appellant would have been in a position to fulfil such an order.
11. The appellant submitted that had the appellant had the opportunity to make reparations, a more lenient sentence might have been imposed.
Respondent’s submissions
12. In relation to whether the appellant had a fair opportunity to engage in a reparation order with a view to reducing his sentence, the respondent drew the Court’s attention to the transcript from the sentencing hearing. Counsel for the appellant at the sentence proceedings had indicated he had instructions that the appellant was prepared to agree to a reparation order as part of any sentencing course imposed by the Magistrate. The prosecution at the sentence proceedings indicated that a reparation order was not sought. The respondent noted the difficulty in establishing the Magistrate’s reasoning in relation to this particular point, but ultimately submitted that his Honour in no way erred by deciding not to make a reparation order.
References to “White-Collar Crime”
Appellant’s submissions
13. The appellant drew attention to the transcript of the sentencing proceedings, where reference was made by the prosecutor to the comments of McCallum J in R v Curtis (No 3) [2016] NSWSC 866; 114 ACSR 184 (Curtis) at [24], specifically in relation to “white-collar crime”. The particular excerpt extracted by the prosecutor at the sentence hearing was as follows:
It is well established that it is wrong to regard white-collar crime as victimless. It causes loss (albeit unquantifiable) to individual traders and it causes harm to the community at large by damaging the integrity of the market as a level playing field.
14. The appellant submitted that the prosecutor’s implication that the appellant’s offending fell into the category of “white-collar crime” had an undue influence on sentencing. The appellant submitted he could not be described as a “white-collar crime” offender, as the category implies a degree of privilege.
15. The appellant went on to cite a further excerpt of Curtis which had been relied upon by the prosecution in their submissions on sentencing. The appellant pointed to an excerpt of that judgment at [51], with particular emphasis on the inclusion of addiction, as follows:
White-collar crime is a field in which, perhaps more than any other, offending is often a choice freely made by well-educated people from privileged backgrounds, prompted by greed rather than the more pernicious influences of poverty, mental illness or addiction that grip other communities.
16. It was submitted that the appellant has had drug addiction issues, as noted in the Pre-Sentence Report.
17. As such, the appellant submitted that it would be inappropriate to rely on the principle that full-time imprisonment is an important deterrent for privileged offenders of “white-collar crime” offences in sentencing the appellant, on the basis that it is inappropriate to categorise the appellant’s offences as “white-collar crime” based on his disadvantaged circumstances.
18. The appellant then directed the Court to the sentencing remarks of the Magistrate, where his Honour stated:
The conclusion I reach is that certainly to wholly suspend it would involve a degree of leniency which is not warranted in the circumstances.
19. The appellant stated that his understanding was that the circumstances his Honour was referring to were the circumstances of “white-collar crime”. In that event, it was the submission of the appellant that leniency ought to have been afforded to the appellant that would not be afforded to a “white-collar crime” offender. On that basis, the appellant submitted that an ICO should have been imposed instead of full-time imprisonment.
Respondent’s submissions
20. The respondent argued against the appellant’s submission that the prosecution’s submissions at first instance in relation to “white-collar crime” at the sentence hearing may have infected the Magistrate’s reasoning. The respondent agreed that it would not be appropriate to conflate the appellant’s offending with the insider trading offences that were the subject of the abovementioned remarks of McCallum J in Curtis. Indeed, the respondent noted that the appellant’s counsel at sentencing submitted that it was an inappropriate characterisation, and the Magistrate during the proceedings on sentence shared that concern, agreeing that “white-collar crime” is “something of an imprecise expression when its used”, and tends to relate to “professionals”, such as “lawyers and accountants”.
21. The respondent also submitted that the term “white-collar crime” did not appear in his Honour’s sentence remarks, underlining that the Magistrate did not adopt the term as an accurate description of the offending. As such, it was submitted that the prosecution’s submission at first instance could not be said to have affected his Honour’s reasoning.
Failure to Order an Intensive Corrections Order Assessment (ICO)
Appellant’s submissions
22. The final submission made by the appellant was that there were no reasons given by the Magistrate for not considering an ICO as a viable sentencing option. I queried the basis of this submission, and the appellant stated that there was no reference to the basis for his Honour’s decision on this point throughout the sentencing remarks.
Respondent’s submissions
23. In relation to the appellant’s submission regarding the absence of reasons for failing to order an ICO assessment, the respondent drew my attention to the following excerpt from the sentence remarks:
I would not impose imprisonment for the first driving while disqualified offence on 8 July 2016, but for each of the other offences I have just referred to, no sentence other than a term of imprisonment is appropriate.
To order that the sentence be served by way of intensive corrections order would involve a degree of leniency which is not warranted by the seriousness of the offending and it would not properly apply the sentencing principles, including the need for a strong message of general deterrence.
24. The respondent submitted that these reasons might seem brief, however, they were in the context of significant consideration by the Magistrate at first instance, including assessment of the objective seriousness, the appellant’s prospects for rehabilitation and the relevant principles of sentencing, including general deterrence, denunciation, and protection of the community. The respondent submitted that his Honour formed the view that the sentence should be served by full-time imprisonment on reasonable grounds.
Manifest Excess
25. I was also assisted by receiving written submissions from the respondent in advance of the hearing directed to the question of manifest excess, and making submissions on the individual sentences, questions of totality, and the non-parole period. I shall now briefly summarise the respondent’s written submissions addressing that ground of appeal.
26. The respondent submitted that the principles applicable to appeals of this nature are as outlined in Cooper v Corsivy (No 2) [2010] ACTSC 166; 5 ACTLR 151. In summary, it was submitted that sentences imposed in the Magistrates Court may not be set aside simply because the appellate court on hearing the appeal, might have formed a different view as to the appropriate sentence. An appeal may be upheld and a different sentence imposed if the appellate court is satisfied that the exercise of the sentencing discretion was affected by specific error, and where the appellate court considers that a different sentence is appropriate in all the circumstances. Where a specific error cannot be identified, the appeal may be upheld and an alternative sentence imposed if the court finds that the original sentence is manifestly excessive, unreasonable, plainly unjust or wrong.
Maximum penalty
27. The respondent submitted that the maximum sentences for the offences are highly relevant to the question of whether a sentence imposed is manifestly excessive: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].
28. The respondent submitted that the maximum sentences for the offences committed by the appellant, particularly for the forgery and obtaining property by deception offences, indicate that the legislature considers that these offences are serious in nature.
Objective seriousness
29. The respondent submitted that all of the offences were of a serious nature. The forgery and obtain property by deception offences were not opportunistic, but involved a course of offending which was “planned and blatantly dishonest”, resulting in high moral culpability on the part of the appellant. The offence of forgery involved a significant degree of sophistication in its execution. The respondent submitted that when considering the objective seriousness and the sentences imposed as against the applicable maximum penalties, the individual sentences fell at the lower end of those maximum penalties.
30. The respondent also submitted that the driving offences were of a serious nature. In particular, the second offence of driving whilst disqualified was aggravated by the fact that the offender was on conditional liberty at the time of the offence, in accordance with Lee v R [2011] NSWCCA 169 at [41].
31. The respondent also submitted that both offences in respect of failing to appear were of significant seriousness for offences of this kind, noting that at the time of the first offence, the appellant was on a good behaviour order, and at the time of the second offence, the appellant was on bail for the first offence of failing to appear. The respondent submitted that in light of these circumstances, the objective seriousness and the maximum penalty, the sentences of three months’ imprisonment on each offence are not manifestly excessive.
The appellant’s character
32. The respondent submitted that the appellant’s modest criminal history disentitled him to some leniency which might have otherwise been afforded to a person without the same criminal history.
Pleas of guilty
33. The respondent noted that the timing of the appellant’s guilty pleas could not be described as early, given the appellant allowed the matters to come before a court often numerous times prior to entering a plea. The respondent submitted that notwithstanding the late timing of the pleas, and the significant strength of the prosecution case against the appellant, the appellant nonetheless received a 15% discount for each plea of guilty.
Prospects for rehabilitation
34. In respect of the appellant’s prospects for rehabilitation, the respondent submitted that the appellant had some history of using illicit substances, but had failed to engage with CADAS for the purpose of preparing a report for sentence. In respect of his attitude to the offences, the respondent submitted that the pre-sentence report noted that whilst the appellant had taken responsibility for his offending, he had minimised his actions and had failed to express remorse, empathy, or understanding regarding the consequences of his actions.
35. The respondent also submitted that the appellant’s compliance with previous community based orders had been poor, noting previous breaches due to non-compliance and further offending, including the fact that the present offences were committed whilst subject to such an order. The respondent submitted that previous community based orders have failed to act as a deterrent for the appellant.
36. The respondent submitted that an ICO was a sentencing option available to the Magistrate, submitting that although such sentences are onerous, they represent relative leniency. The respondent submitted that having regard to the objective seriousness of the offending, the appellant’s criminal history, and low prospects of rehabilitation, a sentence of full-time imprisonment was “just and appropriate”. The respondent submitted that the Magistrate’s finding that an ICO was unsuitable was a finding that was open and reasonable in all the circumstances.
Totality
37. The respondent submitted that a sentencing judge must have regard to principles of totality when sentencing multiple offences: Pearce v The Queen (1988) 194 CLR 610 at 623-624; Mill v The Queen (1988) 166 CLR 59 at 63-64.
38. The respondent submitted that it is essential that when considering accumulation and concurrency of individual sentences, the sentencing judge must recognise the separate criminality involved in the offences: R v Tonari [2014] NSWCCA 232 at [74]; R v MAK; R v MSK [2006] NSWCCA 381 at [18].
39. The respondent submitted that the complexity of structuring multiple sentences calls for restraint on appeal: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19.
40. The respondent submitted that in the present case, the Magistrate made specific reference to totality and carefully applied that principle. The respondent notes that there was significant scope for the Magistrate to accumulate the sentences having regard to the nature of the offending, however his Honour “introduced portions of concurrency”. The effect of this was to reduce the overall sentence of 39 months to 18 months.
41. The respondent submitted that as such, no error could be demonstrated, and that the sentence imposed should be maintained.
Non-parole Period
42. The respondent submitted that the non-parole period is to be set at the minimum which the sentencing judge considers appropriate for the prisoner to serve for the offence: Power v The Queen (1974) 131 CLR 632. There should be an appropriate relationship between the head sentence and the non-parole period, which is to be determined within the broad discretion reposed in the sentencing judge: Lowe v The Queen (1984) 154 CLR 606.
43. The respondent submitted that in the present matter, the Magistrate noted that the gravity of the offending, the appellant’s criminal history and the relevant principles of sentencing called for a term of full-time imprisonment. The respondent submitted that it cannot be said that the sentence imposed was manifestly excessive in all the circumstances.
The test for manifest excess
44. The principles applicable in relation to an appeal on the ground that a sentence is manifestly excessive were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]. That test is as follows:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdalev The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melhamat [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
Consideration
45. As set out above, the sole ground of appeal was manifest excess, and the appellant made three overarching submissions in support of that ground.
46. First, I will deal with the submission that the Magistrate failed to offer the appellant the opportunity to engage in a reparation order which might have resulted in a more lenient sentence being afforded to the appellant.
47. That submission is not made out. It is relevant to set out s 33(1)(h) of the Crimes (Sentencing) Act 2005 (ACT), which is as follows:
33 Sentencing—relevant considerations
(1)In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
...
(h) any action the offender may have taken to make reparation for any injury, loss or damage resulting from the offence;
48. I note that at the sentencing proceedings, it was not submitted that the appellant had already taken action by way of reparation. Rather, counsel for the appellant had merely indicated a willingness on the part of the appellant to comply with any reparation order if made. Although the Magistrate’s reference to a reparation order was limited at the sentencing hearing, I cannot find that his Honour was in error by deciding not to impose a reparation order where none was sought by the prosecution. This was an appropriate exercise of discretion on the part of the Magistrate.
49. Second, it was submitted that the prosecution’s submissions in relation to “white-collar crime” at the sentence hearing may have unduly infected the Magistrate’s reasoning.
50. That submission is not made out. It is clear that the Magistrate, in the proceedings on sentence, rejected the prosecution’s characterisation of the crimes as “white-collar crime”. I am thus unable to conclude that the Magistrate’s reasoning as to an appropriate sentence was affected by the prosecution’s suggestion that the appellant’s offending constituted “white-collar crime”.
51. Third, the appellant submitted that there were no reasons given by the Magistrate for the not considering an ICO as a viable sentencing option.
52. That submission is not made out. The Magistrate had considered the appropriateness of an ICO in specific remarks which have been outlined at [23]. These remarks were made in the context of substantial consideration by the Magistrate of the objective and subjective circumstances of the appellant and the relevant offending. I do not, therefore, find that this submission is made out.
53. As to the individual and total sentences, the ground of manifest excess has not been made out. It has not been established that the total sentences or the individual sentences are “unreasonable or plainly unjust”. It is not enough to establish that an appeal court would have imposed a different sentence. The nature and seriousness of the offences committed by the appellant does not allow for the conclusion that the appellant’s total sentence is manifestly excessive.
54. There was no error in the course adopted by the Magistrate in sentencing the appellant. Given the objective and subjective considerations, and relevant sentencing purposes, the sentence imposed by his Honour was not manifestly excessive.
Orders
55. The appeal is dismissed.
56. Pursuant to s 216 of the Magistrates Court Act 1930 (ACT), the appellant’s sentence was stayed on 25 August 2017 pending the appeal. The appellant’s bail was then revoked on 19 March 2018. Between 25 August 2017 and 19 March 2018, the appellant spent two nights in custody for breach of bail on separate occasions. The appellant also spent 13 days in custody on remand prior to being sentenced by the Magistrate. I calculate that the appellant has spent a total of 114 days in custody as of today. Therefore, for the purpose of confirming the orders of the Magistrate, the appellant is re-sentenced as follows:
(a)For CC2016/2501, forgery, I impose a sentence of 10 months’ imprisonment commencing from 14/2/2018 and expiring on 13/12/2018
(b)For CC2016/2495, obtaining property by deception, I impose a sentence of 7 months’ imprisonment commencing from 14/7/2018 and expiring on 13/2/2019.
(c)For CC16/2496, obtaining property by deception, I impose a sentence of 5 months’ imprisonment commencing from 14/7/2018 and expiring on 13/12/2018.
(d)For CC2016/2497, obtaining property by deception, I impose a sentence of 5 months’ imprisonment commencing from 14/11/2018 and expiring on 13/4/2019.
(e)For CC2016/2498, unlawful possession of stolen property, I impose a sentence of 3 months’ imprisonment commencing from 14/5/2019 and expiring on 13/8/2019.
(f)For CC2016/8425, failing to appear, I impose a sentence of 3 months’ imprisonment commencing from 14/2/2019 and expiring on 13/5/2019.
(g)For CC2016/8793, failing to appear, I impose a sentence of 3 months’ imprisonment commencing from 14/3/2019 and expiring on 13/6/2019.
(h)For CC2016/10983, driving whilst disqualified (repeat offender), I impose a sentence of 3 months’ imprisonment commencing from 14/4/2019 and expiring on 13/7/2019.
(i)For CC2016/7147, driving whilst disqualified (repeat offender), I impose a fine of $1,000.00, no time to pay, to be acquitted by time spent in custody
(j)For CC2016/2499, using a false numberplate, I impose a fine of fine of $600.00, no time to pay, to be acquitted by time spent in custody
The overall sentence which I have imposed is therefore 1 year 6 months. I set a non-parole period of 12 months commencing 14 February 2018 and expiring on 13 February 2019.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 8 October 2018 |
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Amendments
18 June 2018 Replace “25 August 2018” with “25 August 2017” Paragraphs: [56]
08 October 2018 Replace “CC2016/8973” with “CC2016/8793” Paragraphs: [1], [56].
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