Magar v The State of Western Australia
[2011] WASCA 122
•27 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAGAR -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 122
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 15 APRIL 2011
DELIVERED : 27 MAY 2011
FILE NO/S: CACR 107 of 2010
CACR 108 of 2010
BETWEEN: ABDALLAH SAAD MAGAR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND 129 of 2009
Catchwords:
Criminal law - Appeal against conviction - Nine counts of fraud and five counts of dishonestly obtaining property - Whether the trial judge misdirected the jury as to the meaning of 'intent to defraud' - Whether the trial judge misdirected the jury on the appellant's alleged claim of right - Appeal against sentence - Three years' immediate imprisonment - Appellant aged 71 at the time of sentencing and suffering ill health - Whether sentence was relevantly 'crushing'
Legislation:
Criminal Code (WA), s 409(1)
Criminal Code Act 1995 (Cth), s 134.1(1)
Result:
CACR 107 of 2010
Leave to appeal on ground 1 refused
Appeal dismissed
CACR 108 of 2010
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A P Skerritt
Respondent: Mr P D Yovich
Solicitors:
Appellant: D'Angelo Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Braham v The Queen (1994) 116 FLR 38
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Director of Public Prosecutions (Cth) v Page [2006] VSCA 224
El‑Chaar v The Queen [2007] NSWCCA 16
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Magdi v The State of Western Australia [2010] WASCA 234
Mathews v The Queen [2001] WASCA 264; (2001) 24 WAR 438
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Nikaghanri v The State of Western Australia [2009] WASCA 192
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Quetcher v The Queen [2010] NSWCCA 257
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Berry [2007] VSCA 60
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Smith (1987) 44 SASR 587
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
R v Wright [1999] VSCA 145; [1999] 3 VR 355
Skipworth v The State of Western Australia [2008] WASCA 64
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted, after a trial in the District Court before Bowden DCJ and a jury, of 14 offences of dishonesty. They comprised nine counts of fraud, contrary to s 409(1)(c) of the Criminal Code (WA) (the State Code), and five counts of dishonestly obtaining property, contrary to s 134.1(1) of the Criminal Code 1995 (Cth) (the Commonwealth Code). The appellant was acquitted of one count of fraud, being count 7 on the indictment.
The charges against the appellant arose out of an investigation into claims for per capita funding made to the State and the Commonwealth in 2005 and 2006 for three different schools of the Australian Islamic College (AIC) at Kewdale, Thornlie and Dianella.
Each school was entitled to receive funding, based on claims made in February and August of each year to the State authorities, and in August of each year to the Commonwealth authorities. The amount to which a school was entitled depended on the number of eligible students for whom funding could be claimed.
On the prosecution case, the essence of the appellant's criminality was that he prepared and caused to be submitted to the State and Commonwealth authorities claims for per capita funding that he knew had been falsely inflated by the inclusion of numbers of ineligible students.
The appellant was tried with two co‑accused, namely, Abdel Aziz Magdi and Mark Brian Debowski. Dr Magdi was charged with nine of the 15 counts on the indictment and convicted on five of them, being counts 8, 10, 11, 13 and 14. These convictions related only to funding claims made in 2006. Mr Debowski was charged with and acquitted on counts 9, 12 and 15.
On 18 June 2010, the appellant was sentenced as follows:
Count
Offence
Number of ineligible students
Amount defrauded
Sentence
1
Fraud
34
$22,168
12 months' imprisonment concurrent
2
Fraud
95
$92,544
2 years' imprisonment concurrent
3
Fraud
28
$18,256
12 months' imprisonment concurrent
4
Fraud
109
$119,810
2 years' imprisonment concurrent
5
Dishonestly obtaining property
28
$114,044
2 years' imprisonment concurrent
6
Dishonestly obtaining property
125
$674,625
3 years' imprisonment concurrent
7
Acquitted
8
Fraud
33
$23,496
12 months' imprisonment concurrent
9
Fraud
41
$40,838
12 months' imprisonment concurrent
10
Fraud
53
$38,228
12 months' imprisonment concurrent
11
Fraud
101
$70,912
2 years' imprisonment concurrent
12
Fraud
169
$165,253
2 years 6 months' imprisonment concurrent
13
Dishonestly obtaining property
53
$245,605
30 months' imprisonment concurrent
14
Dishonestly obtaining property
97
$421,272
30 months' imprisonment concurrent
15
Dishonestly obtaining property
195
$1,012,196
3 years' imprisonment concurrent
The total amounts obtained by fraud or dishonesty comprised $591,505 from the State and $2,467,742 from the Commonwealth.
The total effective sentence imposed on the appellant was 3 years' immediate imprisonment. His Honour made a parole eligibility order on the State offences and recognisance release orders on the Commonwealth offences. The sentences commenced on the date of sentencing (that is, 18 June 2010).
The appellant appeals to this court against his conviction and sentence.
Background facts and circumstances
The background facts and circumstances were recounted by Mazza J (McLure P & Pullin JA agreeing) in the course of dismissing an appeal against sentence by the appellant's co‑accused, Dr Magdi. See Magdi v The State of Western Australia [2010] WASCA 234, where his Honour said:
In 1986, Mr Magar founded a small community school with 50 students and two teachers. His objective was to provide school-aged children with an Islamic based education. Over time the school grew and became known as the Australian Islamic College (the College). By 2005 and 2006, the College consisted of three campuses situated at Kewdale, Thornlie and Dianella. It had over 2,500 students and employed some 280 staff.
Each of the campuses was a registered school within the meaning of the School Education Act 1999 (WA). As such, each campus was entitled to apply for and, if eligible, be paid grants from the State and Commonwealth governments. These grants were paid according to a formula based on the number of students who were attending the College. In order to obtain these grants, the College was required to submit census forms in February and August of each year.
The relevant Commonwealth and State government agencies administering the grant schemes relied on the genuineness of the figures provided to them in these forms. The resources available to those agencies were such that only minimal spot-checking was undertaken to confirm that the figures provided were genuine.
The College had a policy of not pursuing payment of school fees from parents who were either unwilling or unable to pay. This policy resulted in a shortfall of income and caused the College to accumulate losses over a number of years. These losses threatened the financial viability of the College.
As a response, in or about 2005 Mr Magar, who was at the time the College's overall director, conceived of a scheme which involved census forms being created that contained inflated student numbers. The intention was that the relevant State and Commonwealth agencies would be misled as to the number of students attending the College, with the consequence that the College would receive more funding than it was entitled to. Mr Magar began to put this scheme into effect in 2005.
[Dr Magdi], who was the principal of the Thornlie and Dianella campuses, took part in the scheme by signing five census documents in February and August 2006, which he knew contained falsely inflated figures as to the number of students who were attending those campuses. These were not the only false documents [Dr Magdi] signed. [Dr Magdi] also signed student registers with inflated numbers and for non-existent classes. He told members of the staff who voiced concerns about the accuracy of the registers not to be concerned about them.
The total number of ineligible students Mr Magar made claims for was approximately 1,160 as a result of which the College received a sum in excess of $3 million. Of these, [Dr Magdi] was involved in false claims for 337 students worth $799,513 [10] ‑ [16].
The trial judge's findings of fact at the appellant's sentencing hearing
The trial judge made these findings of fact at the appellant's sentencing hearing:
(a)'Ultimate control of [the three AIC schools] resided with' the appellant (ts 1623).
(b)The appellant was 'hands on', and was 'intimately involved in the day to day operations' of the AIC (ts 1624).
(c)The appellant was responsible for collating the information that was included in the census documents, which formed the basis for the funding claims that were found to be fraudulent (ts 1624).
(d)The appellant conceived the scheme which involved preparing fraudulently inflated claims for funding on behalf of the three AIC schools in the years 2005 and 2006, and deliberately included in the figures submitted to the authorities a number of students in excess of the numbers entitled to be claimed for (ts 1624).
(e)The appellant's conduct involved 'a carefully calculated course of conduct over some 18 months', consisting of 'repeated acts of dishonesty resulting in the schools obtaining substantial amounts of money' (ts 1634 ‑ 1635).
Section 409(1) of the State Code and s 134.1(1) of the Commonwealth Code
Section 409(1) of the State Code provides, relevantly:
Any person who, with intent to defraud, by deceit or any fraudulent means ‑
…
(c)gains a benefit, pecuniary or otherwise, for any person;
…
is guilty of a crime and is liable ‑
(g)if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or
(h)in any other case, to imprisonment for 7 years.
Section 134.1(1) of the Commonwealth Code provides:
A person is guilty of an offence if:
(a)the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and
(b)the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
Appeal against conviction: grounds of appeal
The appellant relies on two grounds in his appeal against conviction.
Ground 1 alleges that the trial judge erred in failing properly to direct the jury as to the meaning of 'intent to defraud' in s 409(1) of the State Code.
Ground 2 alleges that his Honour erred in failing properly to direct the jury on the appellant's expressed belief that he was entitled to include non‑attending, but enrolled, students in the claims for per capita funding.
On 2 March 2011, McLure P granted leave to appeal on ground 2 and ordered that the application for leave to appeal on ground 1 be referred to the hearing of the appeal.
Appeal against conviction: the appellant's submissions
As to ground 1, counsel for the appellant submitted that the question of 'intent to defraud', for the purposes of s 409(1) of the State Code, was to be assessed by determining the subjective intention of the appellant. It was a question of what the appellant intended and not what 'an ordinary person' might have intended. According to counsel, the trial judge failed to tell the jury that a person's intention is subjective because it relates to his or her state of mind. Counsel submitted that the trial judge's summing up would have conveyed to the jury 'an entirely objective view of the relevant intention', namely, that it was to be ascertained by reference to community standards.
During oral argument, counsel for the appellant accepted that the crux of ground 1 was whether there was any risk of the jury misunderstanding that the 'intention' that was relevant to the State offences was the 'subjective intention' of the appellant (appeal ts 73).
As to ground 2, counsel for the appellant submitted that the trial judge failed properly to direct the jury on the defence of 'claim of right'. The appellant's complaints were, in summary, these:
(a)His Honour should not have included the appellant's co‑accused, Dr Magdi, in his directions concerning the defence of claim of right because Dr Magdi did not rely on this defence. It was submitted that if Dr Magdi had a defence it was that of a mistaken belief that the documents he signed were true and correct, not a belief as to the right of the schools to receive funding.
(b)His Honour should not have included Dr Magdi in his directions as to claim of right because his Honour's approach tended to confuse and derogate from the strength of the appellant's defence. It was submitted that his Honour should have directed the jury to distinguish between the potentially different beliefs of each accused and the facts upon which each of them relied for his stated belief.
(c)His Honour failed to direct the jury that the appellant's alleged belief need not be reasonable and, as a result, 'risked importing the notion of an objective test'.
(d)His Honour failed adequately to distinguish between the State and Commonwealth statutory provisions relating to the eligibility of students to be included in the applications for per capita funding.
(e)His Honour should have explained to the jury the differences between the State and Commonwealth statutory provisions as they related to a claim of right.
During oral argument, counsel for the appellant accepted that the crux of ground 2 was as follows. First, whether the trial judge failed to distinguish between the appellant's defence on the one hand and Dr Magdi's defence on the other and, if so, whether Dr Magdi's defence, which was allegedly different from and weaker than the appellant's defence, contaminated and prejudiced the appellant's case. Secondly, whether his Honour failed adequately to distinguish between the State offences and the Commonwealth offences in the application of the appellant's defence, and thereby prejudiced the appellant's case (appeal ts 84 ‑ 85).
Appeal against conviction: the written aid provided to the jury
The trial judge provided to the jury a written aid, described as jury aid C.
The aid set out the elements of the State offences, as follows:
With intent to defraud
•Deprive the Department of their property by dishonest means.
•Dishonest according to the standards of ordinary decent people.
By deceit or fraudulent means
•Deceit ‑ False to the knowledge of the person putting it forward.
•Fraudulent means ‑ All other means which are dishonest [according] to the standards of ordinary decent people.
Gained a benefit
•Gained by the Australian Islamic College referred to in count being considered.
•The Benefit being all or part of the money particularised in the count being considered.
•The deceit or fraudulent means being a substantial or significant cause of the money or any part of it being paid to that College.
The aid set out the elements of the Commonwealth offences, as follows:
1.Intentionally or recklessly engaged in deception by words or conduct.
•Intentionally. The accused means to engage in that conduct.
•OR
•Recklessly. The accused was aware of the substantial risk that he was engaging in deceptive conduct and you the jury considers having regard to the circumstances known to the accused it was unjustifiable for the accused to take that risk.
•Deception ‑ Induce a person to believe that a thing is true which is false and known by the accused to be false.
2.Obtained property
•The Property obtained being all or part of the money particularised in the count being considered.
•The deception must be a substantial or significant cause of the Commonwealth paying [money] to the Australian Islamic College referred to in count being considered.
•An accused is taken to have obtained property if he induces the Commonwealth to pass possession or control of the monies or any part of it the subject of a particular count to the Australian Islamic College named in that count.
3.From a Commonwealth entity
•A Commonwealth entity includes the Commonwealth as represented by the Department of Education, Science and Training.
4.Dishonestly obtained that property
•What the accused did was dishonest by the standards of ordinary, honest people.
AND
•That the accused knew what he did was dishonest by the standards of ordinary, honest people.
5.With an intent to permanently deprive.
The aid was endorsed with this instruction:
USE THIS AID TO REMIND YOURSELVES OF THE CONTENT OF THE CHARGE BUT YOU MUST NOT USE IT AS A SUBSTITUTE FOR THE DIRECTIONS GIVEN NOR MUST IT SUPPLANT THOSE DIRECTIONS.
The trial judge reiterated the instruction to the jury, in the course of his summing up, when he said:
Now, can I ask Mr Usher to hand to each member of the jury an aid to your memory? The fear of judges is that as soon as we hand a document such as this ‑ and one for each counsel, thanks ‑ to the jury that they simply think that's all they have to know and pay no further attention. This is simply not meant to be in substitution of the directions that I'm giving you now. It's something to assist you with the content … Now, as I have said, that is an aid to you. It is not in substitution of the direction that I'm now giving you (ts 1446).
Before his Honour commenced his summing up, he discussed jury aid C with the prosecutor and defence counsel. The appellant was represented by a senior and experienced criminal defence barrister. He had no material comments on the aid (ts 1426 ‑ 1432).
Appeal against conviction: the merits of ground 1
The question of whether, for the purposes of s 409(1) of the State Code, an accused had an 'intent to defraud', is subjective. The question is concerned with the actual intention of the accused. The prosecution must prove beyond reasonable doubt that the accused subjectively had the requisite intent. See Mathews v The Queen [2001] WASCA 264; (2001) 24 WAR 438 [17] ‑ [19] (Burchett AUJ, Malcolm CJ & Steytler J agreeing).
In Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193, Kirby J noted:
[I]t is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal (Zoneff v The Queen (2000) 200 CLR 234 at 263 [73]); and
(2)The entirety of the communication. Particular passages in the instructions must be read and understood in the light of ‑
(a)the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 ‑ 272, 291). But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context (R v Kanaveilomani [1995] 2 Qd R 642 at 648, 651 ‑ 652) [72].
In the present case, the trial judge properly directed the jury on the elements of the alleged offences against s 409(1)(c) (ts 1444 ‑ 1446).
His Honour told the jury, correctly, that the prosecution must prove that the accused had an intention to defraud the State Department; that is, an intention to deprive the Department of its money by dishonest means (ts 1445). Whether something was dishonest or not was to be determined according to the ordinary standards of what the community regards as dishonest (ts 1445).
Earlier in his summing up, in the course of directing the jury on inferences, the trial judge emphasised that the jury could not draw an inference that 'the accused has knowledge or intent unless the evidence is inconsistent with any reasonable conclusion other than that the accused had that knowledge or intent' (ts 1441). This statement unequivocally conveyed to the jury that the relevant knowledge or intent was the actual subjective knowledge or intent of the particular accused.
Neither the appellant nor Dr Magdi gave sworn evidence at the trial. However, each of them participated in a video‑recorded interview or interviews with the police before they were charged. The video records were tendered as part of the prosecution's case. They contained inculpatory and exculpatory statements.
The trial judge instructed the jury:
Now, on numerous occasions in the course of his interview with the police, Mr Magar said to the police that the [ungrouped students] was basically those students who were enrolled but whose whereabouts were unknown and that the school hadn't received, for example, a transfer note or written confirmation that the child had gone to another school or indeed had left the state. Dr Magdi in his interview also said that the ungroup could be claimed for and that's why they were there. He said that to be eligible, students had to exist in the school plus students who were on the list one way or another. Now, the question is not whether Dr Magdi or Mr Magar's interpretation of what they say the School Education Act says is correct. It's not necessary to decide whether their belief of the provisions of the School Education Act is correct or not, but the reason for that is this. The State must prove on the State counts that the accused had an intention to defraud and insofar as the Commonwealth [counts] are concerned, they must prove that the accused obtained property dishonestly. If Mr Magar or if Dr Magdi honestly believed, even if it was a mistaken belief, that they were entitled to include non-attending but enrolled students in their grant application and thereby receive money for them, because they honestly believe they couldn't remove them from the roll and were entitled to include them and be paid for them [then] they could not have the requisite intent to [defraud] in the State case or the requisite element of dishonestly in the Commonwealth count. It's a question of fact for you, the jury, to determine whether the belief was held. To put it in its proper perspective, the State would have to prove beyond reasonable doubt that Mr Magar, when you're considering the case against him, and Dr Magdi, when you're considering the case against him, did not honestly believe that they were entitled to claim for those ungrouped students before you could convict them. It's not up to the accused to show that they did hold that belief, it is up to the State to prove beyond reasonable doubt that Dr Magdi or Mr Magar did not honestly believe that they were entitled to claim for those ungrouped before you could convict (ts 1486).
The jury would have readily understood from this passage that if the appellant (or Dr Magdi) had an honest belief that the schools were entitled to claim for the students in respect of whom claims were submitted, he could not have an intent to defraud. Also, the jury would have readily understood from this passage that they could not convict the appellant (or Dr Magdi) unless, relevantly, the prosecution proved beyond reasonable doubt that he did not honestly believe that the schools were entitled to claim for the students who were, in fact and in law, ineligible. Further, any reasonable juror would have appreciated that the belief, with which they were concerned, was the actual subjective belief of the particular accused. His Honour made specific reference in this passage to the appellant's assertions in his video‑recorded interview with the police that he believed he was entitled to claim for enrolled, but non‑attending, students.
In my opinion, the trial judge properly identified for the jury, in his summing up, the state of knowledge or belief required to constitute an intent to defraud. The jury would have been in no doubt that actual subjective dishonesty was required, and that the prosecution carried the burden of proving the existence of this state of mind beyond reasonable doubt. There was no real (as distinct from a fanciful) risk of any misunderstanding on the point.
His Honour used the word 'objective' only once in his summing up. This occurred when he described, correctly, what was required to prove dishonesty in relation to the Commonwealth offences (ts 1449). His Honour said, relevantly:
The third element is that they must prove beyond reasonable doubt that the accused obtained the money dishonestly. Now, dishonestly, insofar as the Commonwealth Criminal Code is concerned, is defined to be dishonest according to the standard of ordinary people and known by the accused to be dishonest according to the standards of ordinary people. There are two elements of dishonesty. The first is objective, that is, that what the accused did was dishonest according to the standards of ordinary people. If the prosecution satisfy you beyond reasonable doubt of that, the next element, or next part of the definition of dishonesty is that the accused must have known that what he did was dishonest according to the standards of ordinary people. It's not a question of whether he should have known that what he did was dishonest. The prosecution must satisfy you that what he did was dishonest according to the standards of ordinary people and that the accused must have known that what he did was dishonest according to those standards (ts 1449). (emphasis added)
It is of some significance that the appellant's senior and experienced criminal defence barrister did not seek a redirection from his Honour in relation to the point raised in ground 1, although he did seek a redirection on another matter (ts 1480 ‑ 1481). See R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA).
No issue of reasonableness in relation to the appellant's (or Dr Magdi's) belief arose at the trial
Ground 1 has no merit. Leave to appeal on this ground should be refused.
Appeal against conviction: the merits of ground 2
The appellant asserted in his interview with the police on 10 April 2008 that he could, and indeed he was obliged to, retain a student on the school register until such time as a transfer note or written advice of a transfer or permanent absence of the student was received by the school. Further, he believed that he was entitled to include all students who were on the school register (including enrolled, but non‑attending, students) in grant applications submitted to the State and Commonwealth authorities.
Dr Magdi took part in two interviews with the police, one on 8 April 2008 and the other on 11 April 2008.
In the interview on 8 April 2008, Dr Magdi said, in substance, that the appellant made him sign the relevant claim forms after the appellant had told him that the ungrouped students (that is, enrolled, but non‑attending, students) could be the subject of a claim for funding. This is apparent from the following exchange in the interview:
Q. Okay just explain that to me, why would Mr Magar ‑ you're the principal of the school, why would Mr Magar sign as the principal of the school and make you sign as a teacher when this class we've established doesn't exist?
A. Because it is the ungroup and he believe that the ungroup can be claimed there because there isn't anything, any documentation to say that we have to remove them from our list.
Q. Okay. Let me just ‑ let me just expand that a little bit. You just made a statement to say that Mr Magar believe that these children, only at Dianella or all of them?
A. Oh all of them.
Q. So you're saying that Mr Magar believed that all of the ungroup children could still be claimed on the government grant, is that what you're saying?
A. Absolutely. The ungrouped can be claimed. That's why they are there (ts 47).
At the trial, senior counsel for Dr Magdi emphasised that Dr Magdi's state of mind or intention was critical in evaluating the prosecution case against him:
The issue in the case against Dr Magdi really comes down to his state of mind, his intention, at the time of certification, not between dates ‑ the dates that you see on the indictment which has been presented to you. But the relevant state of mind which has to be proved beyond reasonable doubt in the case against Dr Magdi is his state of mind on the day that he certified that relevant document. I said a word of warning because of this: when the form - you will have to ask yourselves these sorts of questions. When the form was signed, did he know precisely which students were being claimed for? Did he believe that false claims were being made? And these are the questions which must be answered by you, ladies and gentlemen (ts 210).
At the trial, senior counsel for Dr Magdi submitted in his closing address:
And what you're left with is an emphatic denial by my client in two extensive records of interview where he maintains that he didn't know, he wasn't part of any fraudulent scheme and he certainly didn't knowingly certify any document, having been coerced into that, on the prosecution case, by Mr Magar (ts 1339 ‑ 1340).
In my opinion, it was appropriate, in the circumstances, for the trial judge to direct the jury that each of the appellant and Dr Magdi could not be convicted unless, relevantly, the prosecution proved beyond reasonable doubt that he did not honestly believe that a claim for a grant could be made in respect of ungrouped students (ts 1486).
His Honour correctly identified (at ts 1486) the belief which each of the appellant and Dr Magdi said he held. He told the jury that if the appellant or Dr Magdi honestly held that belief (without telling them that it had to be objectively reasonable), he could not have the requisite intent to defraud alleged in the State counts or the requisite element of dishonesty alleged in the Commonwealth counts (ts 1486). His Honour then told the jury that the prosecution had to prove beyond reasonable doubt that the appellant or Dr Magdi, as the case may be, did not honestly believe that there was an entitlement to claim for the ungrouped students before they could convict him (ts 1486).
The trial judge did not suggest to the jury that if the prosecution case was proved against one of the appellant or Dr Magdi, it followed automatically that it was proved against the other. During his summing up, his Honour was careful to distinguish between the appellant and Dr Magdi, as appropriate. For example, his Honour told the jury that the prosecution had to prove 'that Dr Magdi or Mr Magar' did not hold the asserted belief before they could convict (ts 1486) (emphasis added). Further, his Honour, in directing on the necessity for the prosecution to prove the absence of honest belief beyond reasonable doubt, said: 'Mr Magar, when you're considering the case against him, and Dr Magdi, when you're considering the case against him' (ts 1486).
His Honour gave the jury a 'separate consideration' direction, in relation to each accused and each count on the indictment, in orthodox terms (ts 1440). The fact that the jury acquitted the appellant on one count, and acquitted Dr Magdi on four counts, indicates that this direction was faithfully applied by the jury.
In my opinion, the trial judge properly directed the jury that the state of knowledge or belief required to constitute an intent to defraud, within s 409(1), or dishonesty, within s 134.1(1), was actual subjective dishonesty. There was no real (as distinct from a fanciful) risk that the jury may have misunderstood the state of mind necessary to constitute an intent to defraud or dishonesty. As I have mentioned, his Honour used the word 'objective' only once in his summing up when he described, correctly, what was required to prove dishonesty in relation to the Commonwealth offences (ts 1449). See [38] above. Also, as I have mentioned, the issue of reasonableness did not arise in the course of the trial. In the present case, reference by his Honour to the distinction between an actual subjective honest belief on the one hand, and the objective reasonableness of an alleged belief on the other, would have added nothing and could, potentially, have been confusing.
In my opinion, the trial judge properly distinguished between the appellant's defence on the one hand and Dr Magdi's defence on the other. Dr Magdi's defence was not materially weaker than the appellant's defence. His Honour's approach did not tend to confuse or derogate from the appellant's case.
His Honour properly summarised the evidence of the prosecution witnesses about the eligibility requirements under the State and Commonwealth grant schemes. The material difference in the state of the evidence on the question of eligibility, and the particular counts to which that difference was relevant, were identified by his Honour in the following passage from his summing up:
Now, it's important, I think, to consider the question of eligibility; not in relation necessarily to what the Department themselves think the eligibility is but rather what the eligibility criteria was that was in fact communicated to the schools. In relation to charges which relate to the census for February '05 or February '06, you'll recall that Mrs Iaschi's evidence was to the effect that the Department accepted that if a student had not attended in a given year, the school was not entitled to claim. But the Department would accept that if a student had not attended in February but there was a legitimate expectation that they would attend, no claim would be disallowed, the effect of this being that notwithstanding that the census form says, 'Exclude any student who's not yet attending', the Department seemed to have a policy that if a student[sic] had a legitimate expectation that a student was going to attend, a claim for that student would be legitimate even if he had not attended; legitimately depending on the school's honest expectation of a particular pupil returning. Therefore, in consideration of any of the charges relating to the census as in February; that is, count 1, February '05 for Thornlie, count 8, February '06 for Thornlie, count 2, February '05 for Kewdale, count 9, February '06 for Kewdale, and count 7, February '06 for Dianella, you would need to take that particular matter into account. In particular, you could only convict the accused whose case you were considering the subject of any of those counts if you were satisfied beyond reasonable doubt that the accused did not have an honest expectation that all students claimed for who were not presently attending would not be returning from their overseas holidays or other absence (ts 1456 ‑ 1457).
At the trial, where there was any possible doubt about the entitlement of a school to claim in respect of a particular student, that doubt was resolved in favour of the appellant and Dr Magdi. It is apparent from the trial judge's summing up that the eligibility criteria and their application to particular students was not an issue in respect of which the jury had to make findings of fact.
In my opinion, his Honour distinguished adequately between the State offences and the Commonwealth offences in the application of the appellant's defence both in jury aid C and in his summing up. No prejudice to the appellant's case is discernible on a fair reading of jury aid C and the summing up as a whole.
Ground 2 fails.
Appeal against sentence: ground of appeal
The sole ground relied on by the appellant in his appeal against sentence alleges that the trial judge erred by failing properly to apply the totality principle with the result that the total effective sentence was 'crushing'.
On 2 March 2011, McLure P ordered that the application for leave to appeal against sentence be heard together with the appeal against conviction.
Appeal against sentence: the appellant's submissions
Counsel for the appellant submitted that there were 'significant mitigating factors' in relation to the appellant and his offending. He emphasised the appellant's age and ill health. According to counsel, 'a slightly shorter sentence' would have been 'appropriate' (appeal ts 88). It was not submitted that a different type of sentence should have been imposed (appeal ts 86).
Appeal against sentence: its merits
In the present case, the maximum available penalty for each of the appellant's contraventions of s 409(1)(c) of the State Code was imprisonment for 7 years.
In Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, Steytler P (Wheeler & Roberts-Smith JJA agreeing) reviewed the sentences which have customarily been imposed for offences against s 409(1). It is unnecessary to reproduce his Honour's review. See also the survey of sentences carried out in Skipworth v The State of Western Australia [2008] WASCA 64, Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57 and Nikaghanri v The State of Western Australia [2009] WASCA 192.
The maximum available penalty for each of the appellant's contraventions of s 134.1(1) of the Commonwealth Code was imprisonment for 10 years.
The range of sentences which have been imposed for offences against s 134.1(1) is apparent from Director of Public Prosecutions (Cth) v Page [2006] VSCA 224, R v Berry [2007] VSCA 60, El‑Chaar v The Queen [2007] NSWCCA 16 and Quetcher v The Queen [2010] NSWCCA 257.
The appellant's personal circumstances, and those matters favourable to him for sentencing purposes, were as follows:
(a)Before the commission of these offences, the appellant was regarded as a person of good character. He had no record of prior offending or any history of dishonesty. He was a dedicated family man with four children. He was generally well regarded by those who knew him and was unlikely to re‑offend (ts 1578 ‑ 1585, 1628).
(b)The appellant was aged 71 years when sentenced.
(c)The appellant has significant health problems. He has had a heart condition for more than 10 years. In 2000 he underwent angioplasty. When sentenced, his heart condition persisted, and he had associated complications including diabetes, circulatory problems and high cholesterol (ts 1589 ‑ 1590, 1629).
(d)There was no direct personal benefit to the appellant from the commission of the offences, but his criminal conduct assisted in maintaining the financial viability of the schools (ts 1586 ‑ 1610, 1628).
(e)Full restitution was made before sentencing of the amounts overpaid to the AIC, although neither the appellant nor Dr Magdi made any personal contribution to the repayment (ts 1591 ‑ 1593, 1632).
(f)The appellant made concessions at trial which reduced considerably the length of the trial. He cooperated with the authorities and told others to do so (ts 1627, 1629).
The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 309 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] ‑ [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999) 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).
Australian authorities have established that advanced age is a relevant consideration in determining whether a sentence will be 'crushing' for the purpose of the totality principle. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
See also Gulyas [36] ‑ [37].
The trial judge found, in sentencing the appellant and Dr Magdi, that the appellant was the instigator of the offending. He said that Dr Magdi's role was more limited than the appellant's. His Honour accepted that Dr Magdi had acted under the appellant's direction, and that Dr Magdi's criminal conduct arose out of a misguided sense of loyalty to the appellant.
Dr Magdi was aged 55 years when sentenced. His personal antecedents were excellent. Unlike the appellant, Dr Magdi did not suffer from ill health. The trial judge sentenced Dr Magdi to 2 years immediate imprisonment. He was made eligible for parole on the State offences and a recognisance release order was made in respect of him on the Commonwealth offences. This court dismissed Dr Magdi's appeal against sentence. It found that the sentences imposed on him were not manifestly excessive and the parity principle had not been infringed.
The trial judge expressly referred to the appellant's advanced age and ill health. His Honour acknowledged that these matters would make imprisonment more arduous than usual. However, there was evidence before his Honour which established, in essence, that all services required for the appellant's health care while he was in custody could be met by the Department of Corrective Services. See the letter dated 14 June 2010 from Dr Cherelle Fitzclarence, Senior Medical Officer, Department of Corrective Services.
Before the hearing of the appeal, the solicitors for the appellant and the solicitors for the respondent filed and served expert reports, obtained after the appellant was sentenced, which explained his current health problems and the treatment available to him in the prison system. These expert reports, including a letter dated 25 March 2011 from Dr Fraser Moss, Assistant Director Health Services, Offender Management and Professional Development, were referred to during debate between counsel for the appellant and this court (appeal ts 86). Counsel had ample opportunity to make submissions in relation to them. It is sufficient, for present purposes, to set out this passage in Dr Moss's letter:
1.What, if any, medical treatment relating to his cardiac and associated conditions has Mr Magar sought whilst in prison? Have there been any problems with him getting access to medical treatment?
Mr Magar has sought and is receiving all his medications as prescribed in the community. There have been no problems with Mr Magar having sufficient access to medical treatment. Since 1 March 2011 he has accessed a total of nineteen consultations/interactions with clinical staff at Wooroloo Prison Farm and currently has appointments booked with the vascular specialist clinic at Royal Perth Hospital as well as for an MRI of his spine. In spite of ongoing advice from the senior Medical practitioner Mr Magar continues to smoke more than 20 cigarettes per day thus exacerbating his cardiovascular risk. Furthermore, again in spite of medical advice for the management of his diabetes, Mr Magar is noted to take three teaspoons of sugar in each cup of coffee and eat sweet desserts. It is also noted that he abstains from this when he is scheduled for regular reviews of his diabetes and the associated blood sugar testing.
Finally when Mr Magar was given the privilege of keeping his medications on person, a routine search of his cell revealed that he had not been taking them.
2.Has Mr Magar sought any treatment for anxiety whilst in prison? If so, when and what treatment was provided?
Mr Magar did not report any history of mental health issues on his reception in prison. On reception Mr Magar was noted by a senior prison medical practitioner to be suffering from a normal anxiety reaction entirely consistent to his change in circumstances. He was not clinically depressed and denied suicidal ideation or intent. Mr Magar was assessed one week later and was noted to be settled and showing no forms of anxiety.
Assessments by an external private medical practice during December 2010 and February 2011, not coordinated by the Health Service Directorate, did not report any diagnosis of stress or anxiety disorder.
I have reviewed Mr Magar's medical file and can find no complaints to medical staff from him of anxiety or stress. However, he was noted to be expressing anger toward nursing staff, stating that he had been wrongly convicted and imprisoned in December 2010. At this time he was referred to the Prison Counselling Service (PCS).
In early March 2011, Mr Magar was assessed by a specialist psychiatrist and was diagnosed with a depressive illness for which he has commenced medication.
3.What treatment is available in prison for treatment of Mr Magar's anxiety disorder?
Appropriate treatment comparable with that provided by the public health system of Western Australia is available to Mr Magar in prison.
4.Are [there] any impediments to him receiving treatment for his medical conditions or anxiety disorder whilst at Wooroloo Prison Farm? Please specifically comment on the availability of a psychiatrist at Wooroloo Prison Farm?
Wooroloo Prison Farm provides a senior medical practitioner two days per week and a specialist Psychiatrist one day per fortnight. There is a Mental Health Nurse available 5 days per week. As for all prisons in WA, an on call medical consulting service is available 24 hours a day, 7 days per week and in urgent or emergency situations referral to a hospital emergency department is facilitated.
6.In light of the attached medical information what steps does the Department intend to take to meet Mr Magar's treatment needs.
The medical information in the attached reports is not entirely supported by the medical record. However, in light of these reports, a case conference has been convened to determine whether Mr Magar's needs can be met at Wooroloo Prison Farm and to consider whether his overall condition merits his transfer to Casuarina prison where more intensive clinical services are available 24 hours a day in the Assisted Care Unit and a psychiatrist is available for 10 sessions every week.
At the hearing of the appeal, we were informed that, as contemplated in Dr Moss's letter, the appellant had been transferred from Wooroloo Prison Farm to Casuarina prison for the purpose of facilitating the treatment of the appellant's medical conditions.
The appellant committed serious frauds upon the revenue. He engaged repeatedly in planned and deliberate acts of dishonesty. The total amount obtained as a result of his criminality was in excess of $3 million. Offences of the kind he committed are not easily detected. General deterrence was a significant sentencing factor. See R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [145].
Although the appellant made concessions at trial which reduced considerably the length of the trial, he did not have the benefit of the mitigation that a plea of guilty would have brought.
I am satisfied that the trial judge did not make any error in principle in sentencing the appellant and that his exercise of the sentencing discretion did not miscarry. The total effective sentence of 3 years' immediate imprisonment was appropriate in all of the circumstances, including his advanced age and significant health problems. It was not disproportionate to his offending, and it cannot reasonably be said that he has been left without any reasonable prospect of useful life after his release. The sentence was not 'crushing' in the relevant sense. There is no basis for inferring error.
The ground of appeal is without merit and I would therefore refuse leave to appeal.
Conclusion
As to the appeal against conviction, leave to appeal on ground 1 should be refused, and the appeal dismissed.
As to the appeal against sentence, leave to appeal on the sole ground should be refused and, in consequence, the appeal must be dismissed.
MAZZA J: I agree with Buss JA.
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