Nelmes v The State of Western Australia

[2004] WASCA 191

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   NELMES -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 191

CORAM:   MURRAY J

WHEELER J
MILLER J

HEARD:   12 AUGUST 2004

DELIVERED          :   12 AUGUST 2004

FILE NO/S:   CCA 36 of 2004

BETWEEN:   CRAIG ANDREW NELMES

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram   :O'SULLIVAN DCJ

File Number             :  IND 424 of 2004

Catchwords:

Criminal law and procedure - Application for leave to appeal against sentence - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed

Category:    B

Representation:

Counsel:

Applicant:     Mr J B Prior

Respondent:     Mr D Dempster

Solicitors:

Applicant:     Williams Ellison

Respondent:     State Director of Public Prosecutions

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

Pearce v R (1998) 194 CLR 610

R v Black [2002] WASCA 26

R v Faithfull [2004] WASCA 39

Case(s) also cited:

Nil

1. MURRAY J:  In this matter, I would ask Wheeler J to give the first judgment.

2. WHEELER J:  On 16 March this year, the applicant pleaded guilty to six counts of stealing as a servant and 21 of fraud, relating to offences committed over a period from 3 October 2000 to 20 November 2003.

3. The way in which those charges arose had been that on 28 November 2003, the applicant advised his then employer of his various criminal activities which resulted in the sentences from which he now appeals.  At the time, the applicant had been employed as a financial services administrator.  He had, in that capacity and in the course of that employment, set up a system which had involved the fraudulent alteration of cheques, and the appropriation of the proceeds to himself.  He had, in order to further that system, created a fictitious company, by means of creating a letterhead and so on - to suggest that such a company existed and had created false invoices directed to his employer, so that it was a scheme of some sophistication.  The total sum he obtained by those means was $309,671.44.

4. It appears there had been some inquiry about an account, which triggered his disclosure, but following his initial disclosure he made full disclosure to his employer of the means by which he had carried out those activities and he cooperated with police, including making a full confession on a videotaped record of interview.  He entered pleas of guilty on the fast track system.  He repaid a little over $5000, which represented money to which he was entitled on the termination of his employment.  It appears that the remainder is unlikely, on any view, to be recovered from him.

5. This was, it appeared, another of those very unfortunate cases in which the offending events were sparked by a serious gambling addiction in a person with otherwise very good personal circumstances.  The applicant was 38, was married, had children and was well respected, it appears, in the community generally.  His wife was said to be devastated; his friends were very surprised.  A number of references attest to that and to his otherwise good character.  Of course, his employment prospects are dramatically affected by his conviction of these offences.  He had, it appears, taken steps to deal with this gambling problem by means of counselling and so on.

6. In his sentencing remarks, his Honour said:

"The first task of a judge in a case of this kind is to determine whether anything other than a sentence of immediate imprisonment is open."

1. His Honour took the view that it was not, because the matters were too serious, and that is not in issue here.  His Honour then went on to impose sentence in the following way.  He said:

   "Under the old sentencing legislation, under the legislation which applied before the recent amendments to the Sentencing Act, I would have taken the view that you should now serve a term of imprisonment of seven years in respect of these matters, all terms to be served concurrently, one with the other. As a result of the recent amendments to the Sentencing Act, I am required to reduce the head sentence or the fixed sentence which is to be imposed upon you, to two-thirds of that which would previously have been imposed.

   In this particular case then it is appropriate that you serve terms of imprisonment of 56 months or four years and eight months in respect of each of these matters.  Those matters or those sentences should be served concurrently by you and you should be declared eligible for parole in respect of the sentences."

2. His Honour went on to say that effectively the sentence meant that the applicant would be eligible to apply for parole after 28 months.  It is clear that his Honour was in error there, but that seems to be an arithmetical error arrived at on the assumption that one simply reduced the term by 50 per cent.

3. The grounds of appeal, which have been substituted by leave granted this morning, consist of three grounds.  The third relates to his Honour's observations in relation to the time at which the applicant would be eligible for parole.  In my view, nothing turns on that.  The first is that his Honour erred in failing to reduce the length of the sentence or give an appropriate reduction in the length of the sentence for the applicant's expedited pleas of guilty.

4. The second is that the sentence imposed of 56 months' imprisonment was manifestly excessive in the circumstances and the first of the particulars to that ground is that the starting point of seven years for the calculation of the sentence of imprisonment on each count was too high, as the maximum penalty for an offence of fraud is seven years' imprisonment.

5. In my view, the error which his Honour made is really to be located in the particular to the second ground to which I have just referred.  That is, his Honour said, in effect, that it was his view that there should be a term of seven years' imprisonment served, and appeared to wish to achieve that end by imposing terms of seven years in respect of each offence, all of them to be served concurrently.  In relation to the counts of stealing as a servant, the maximum term available was one of 10 years, whereas in relation to those of fraud, the maximum was one of seven years.

6. The clear authority of the High Court in Pearce v R (1998) 194 CLR 610 is that a sentencing Judge is required to arrive at an appropriate sentence in relation to each count on the indictment and then to consider questions of concurrency, accumulation, totality and matters of that kind. The obligation, then, is to look first to each of the offences of which the offender has been convicted. His Honour obviously failed to do that in relation to the frauds, it seems to me, since he would not have imposed a sentence of the maximum for those offences had he had regard - as he plainly did when one looks at his reasons - to the pleas of guilty, remorse and personal circumstances.

7. The error extends through to all the sentencing, because, as I say, what his Honour seems to have done is to arrive first at what in his view was an effective appropriate total for the totality of the offending, without considering what was appropriate in relation to each offence charged.  In my view, his Honour's discretion for that reason wholly miscarried.  It falls to this Court to sentence afresh.

8. I do not accept that his Honour failed to have regard, as the grounds suggest, to the applicant's significant remorse and to his plea of guilty.  However, it does seem to me that in relation to none of the counts in the indictment would a term of seven years, prior to the one third reduction for the sentencing amendments, have been appropriate.

9. Rather, I would view the matters in this way.  I accept that this was serious offending.  Each individual offence was a relatively serious one of its kind, given the breach of trust and the premeditation.  The individual amounts were significant, but I accept, as was apparently conceded by the State before his Honour the learned sentencing Judge, that they were not such that one would regard this offending as the very worst of its kind, although towards the middle or upper range certainly.

1. What is important, I think, is that the offending was repeated on many occasions and it would, in my view, in the present case, be appropriate to reflect that by making some accumulation of sentences.  In my view, the appropriate sentences would be - again prior to the one third reduction required by the sentencing amendments - four years in respect of each count of stealing as a servant, each of those to be served concurrently with each other, and two years for each of the counts of fraud, again to be concurrent with each other but cumulative on the stealing.

2. On my calculation, after the one third reduction, that results in a sentence of 32 months in respect of each of counts 1 to 6, concurrent with each other, and 16 months in respect of each of the remaining counts, to be served concurrently with each other, but cumulative on counts 1 to 6, being a total of 48 months to take effect from 16 March 2004 with eligibility for parole.

3. I would add only one further observation in respect of the submissions made on behalf of the applicant.  It seems to me that it is, with respect, inappropriate to place too much weight on either of the cases of R v Faithfull [2004] WASCA 39 or R v Black [2002] WASCA 26 in connection with offences of this kind. Each of them was a Crown appeal and the circumstances of each, in my view, were exceptional.

4. MURRAY J:  I agree with the reasons of Wheeler J.  There is nothing that I would add to her Honour's reasons.

5. MILLER J:  I agree with the reasons delivered by Wheeler J and I agree with the orders that she proposes.  I have nothing else to add.