Ponnambalam v The State of Western Australia
[2015] WASCA 185
•14 SEPTEMBER 2015
PONNAMBALAM -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 185 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:91/2012 | 8 APRIL 2015 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 14/09/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Discovery application dismissed Application to withdraw notice of discontinuance of the first sentence appeal dismissed Second sentence appeal dismissed Suppression order made | ||
| B | |||
| PDF Version |
| Parties: | NAVANEETH PONNAMBALAM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Stealing choses in action Total effective sentence 8 years' immediate imprisonment Whether second appeal in respect of the same sentence competent Effect of a notice of discontinuance filed pursuant to r 59 of the Supreme Court (Court of Appeal) Rules 2005 (WA) Doctrine of nullity Whether appellant was sentenced for an offence for which he was not convicted First limb of the totality principle Parity principle |
Legislation: | Criminal Appeals Act 2004 (WA), pt 2, pt 3, s 4(2), s 28(3), s 40(1)(l), s 50(1), s 50(3)(f) Criminal Procedure Rules 2005 (WA), r 72 Supreme Court (Court of Appeal) Rules 2005 (WA), cl 16 of sch 1, r 59, r 62 |
Case References: | Bridges v The Queen (1998) 20 WAR 59; (1998) 104 A Crim R 322 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 JS v The State of Western Australia [2014] WASCA 177 KBRV Resort Operations Pty Ltd v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516 Lawson v Wallace [1968] 3 NSWR 82 Macri v Thobaven [2010] WASC 18 Nikaghanri v The State of Western Australia [2009] WASCA 192 Ponnambalam v The State of Western Australia [2013] HCASL 155 R v Medway [1976] 1 QB 799 The Owners of the Cargo of the 'Kronprinz' v The Owners of the 'Kronprinz' (1887) 12 App Cas 256 The State of Western Australia v Chapman [2012] WASCA 203 The State of Western Australia v Wallam [2008] WASCA 117 (S) Vella v The Queen (1991) 4 WAR 278; (1991) 52 A Crim R 298 Wilson v The State of Western Australia [2014] WASCA 236 Wittensleger v The State of Western Australia [2014] WASCA 205 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PONNAMBALAM -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 185 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- CACR 188 of 2014
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 1465 of 2010
Catchwords:
Criminal law - Application for leave to appeal against sentence - Stealing choses in action - Total effective sentence 8 years' immediate imprisonment - Whether second appeal in respect of the same sentence competent - Effect of a notice of discontinuance filed pursuant to r 59 of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Doctrine of nullity - Whether appellant was sentenced for an offence for which he was not convicted - First limb of the totality principle - Parity principle
Legislation:
Criminal Appeals Act 2004 (WA), pt 2, pt 3, s 4(2), s 28(3), s 40(1)(l), s 50(1), s 50(3)(f)
Criminal Procedure Rules 2005 (WA), r 72
Supreme Court (Court of Appeal) Rules 2005 (WA), cl 16 of sch 1, r 59, r 62
Result:
Discovery application dismissed
Application to withdraw notice of discontinuance of the first sentence appeal dismissed
Second sentence appeal dismissed
Suppression order made
Category: B
Representation:
Counsel:
Appellant : Mr P Yovich
Respondent : Mr J Whalley
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bridges v The Queen (1998) 20 WAR 59; (1998) 104 A Crim R 322
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
JS v The State of Western Australia [2014] WASCA 177
KBRV Resort Operations Pty Ltd v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516
Lawson v Wallace [1968] 3 NSWR 82
Macri v Thobaven [2010] WASC 18
Nikaghanri v The State of Western Australia [2009] WASCA 192
Ponnambalam v The State of Western Australia [2013] HCASL 155
R v Medway [1976] 1 QB 799
The Owners of the Cargo of the 'Kronprinz' v The Owners of the 'Kronprinz' (1887) 12 App Cas 256
The State of Western Australia v Chapman [2012] WASCA 203
The State of Western Australia v Wallam [2008] WASCA 117 (S)
Vella v The Queen (1991) 4 WAR 278; (1991) 52 A Crim R 298
Wilson v The State of Western Australia [2014] WASCA 236
Wittensleger v The State of Western Australia [2014] WASCA 205
1 JUDGMENT OF THE COURT: By CACR 188 of 2014, the appellant seeks an extension of time and leave to appeal against a sentence imposed upon him in the District Court for a large number of stealing offences. However, there is a potential obstacle to this course: CACR 188 of 2014 is not his first appeal with respect to this sentence.
2 On 11 April 2012, the appellant filed an appeal, CACR 91 of 2012, against the same sentence (the first sentence appeal). The appellant subsequently filed a notice of discontinuance with respect to that appeal. In these proceedings, the appellant applies to withdraw the notice of discontinuance and proceed with the first sentence appeal. Alternatively, he seeks to proceed with CACR 188 of 2014 (the second sentence appeal).
3 For the reasons which follow, the application to withdraw the notice of discontinuance should be dismissed. The second sentence appeal is incompetent. It, too, should be dismissed.
The procedural background
4 On 3 February 2012, the appellant was convicted after trial in the District Court of 220 counts of stealing choses in action, namely the right to withdraw money from bank accounts, totalling $401,086.13 in value. Essentially, the appellant was a participant in a highly organised credit card skimming scheme. Information was skimmed using devices installed in EFTPOS machines at various McDonald's restaurants in the Perth metropolitan area. That information was used to access the accounts of customers who had used the machines. Money totalling $401,086.13 was withdrawn from those accounts. Ultimately, the losses were paid for by various financial institutions with whom the customers banked.
5 On 23 March 2012, the appellant was sentenced to 2 years' imprisonment on each count. Counts 28, 29, 143 and 368 were ordered to be served cumulatively. Thus he received a total effective sentence of 8 years' immediate imprisonment. The appellant was made eligible for parole. The sentence was backdated to commence on 22 December 2009.
6 On 10 April 2012, solicitors then acting for the appellant filed an appeal against conviction (CACR 90 of 2012) and the first sentence appeal. These appeals were filed within the 21-day time limit specified by s 28(3) of the Criminal Appeals Act 2004 (WA) (the CAA). Following a number of extensions of time, the appellant's case in the first sentence appeal was filed by the appellant's new lawyers in August 2012. On 19 August 2012, Mazza JA gave leave to appeal on ground 4 and referred the application for leave to appeal on the other four grounds to the hearing of the appeal.
7 On 8 November 2012, the appellant, acting on his own behalf, applied for the removal of the appeal against conviction to the High Court of Australia. On 4 September 2013, the application was dismissed: Ponnambalam v The State of Western Australia [2013] HCASL 155.
8 By letter dated 27 August 2013 to the Office of the Director of Public Prosecutions (DPP), the appellant advised he was now self-represented and enclosed a notice of self-representation in the first sentence appeal.
9 On 8 October 2013, the appellant signed a notice of discontinuance with respect to his appeals, including the first sentence appeal (AB 50 - 51). These notices were filed in this court on 15 October 2013, and copies were sent to the DPP. The notices of discontinuance were in the form prescribed in cl 16 of sch 1 to the Supreme Court (Court of Appeal) Rules 2005 (WA) (the CA Rules). Relevantly to the first sentence appeal, the notice stated 'The appellant discontinues this appeal' and is signed by the appellant himself.
10 The letter to the DPP, which was handwritten by the appellant, said (omitting formalities):
Please be advised that the appellant does not wish to pursue the appeal against conviction and sentence (CACR 90, 91 of 2012) in the Court of Appeal for the State of Western Australia.
A formal withdrawal will be made on 18 October 2013, if necessary.
A copy of the notice for [sic] discontinuance has been filed with the Court of Appeal registry (AB 49).
11 On 23 October 2013, certificates of conclusion of a criminal appeal in the prescribed form were completed and sealed by the acting Court of Appeal registrar.
12 Just over a year later, on 4 November 2014, the appellant commenced the second sentence appeal. The grounds are the same as the first sentence appeal. The appeal notice was accompanied by an affidavit in support of an extension of time sworn by the appellant on 16 October 2014.
13 Pursuant to an order made on 1 December 2014 by Mazza JA, on 22 December 2014 the appellant filed an application in an appeal seeking leave to withdraw the notice of discontinuance in the first appeal. This application is supported by affidavits sworn by the appellant on 4 December 2014 and on 2 April 2015.
14 The appellant's position, in substance, is that:
(a) the notice of discontinuance filed in the first sentence appeal was a nullity because he intended to proceed with the appeal at a later time and, therefore, the appeal remains on foot;
(b) alternatively, if the notice of discontinuance was not a nullity, this court may nevertheless hear and determine the second sentence appeal.
15 The first issue for determination is whether this court has jurisdiction to either order the withdrawal of the notice of discontinuance in the first sentence appeal or hear and determine the second sentence appeal.
16 The respondent contends this court does not have jurisdiction to do either, relying on decisions of the High Court (in particular, Grierson v The King [1938] HCA 45; (1938) 60 CLR 431; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218) and this court (Bridges v The Queen (1998) 20 WAR 59; (1998) 104 A Crim R 322; The State of Western AustraliavWallam [2008] WASCA 117 (S); JS v The State of Western Australia [2014] WASCA 177). All of these cases involved the disposition of an appeal on its merits implemented by a perfected order of a court. In this case there has been no appeal on the merits and no court order directly or indirectly disposing of the appeal.
17 The question whether the law permits multiple appeals and the related question of whether this court has power to re-open an appeal that has been dismissed on the merits were considered and determined in JS. In JS, the appellant's first appeal against conviction was dismissed on the merits at the leave stage pursuant to s 27(3) of the CAA, which provides:
Unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
18 The appellant's second appeal against the same convictions was also dismissed. On the issue of multiple appeals, the court in JS said:
An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derive solely from the governing legislation (Davern v Messel (1984) 155 CLR 21, 47), in this case the [CAA]. The CAA covers the field in relation to appeals from statutory offences: Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [16].
There is nothing in the text, context or purpose of the CAA to provide an arguable foundation for the appellant's claim that he can appeal more than once against the same convictions [4] - [5].
19 On the subject of this court's power to re-open an appeal, the court in JS said:
The consequences of the construction of s 27(3) in [Barry v The State of Western Australia [2007] WASCA 12] are that an offender has only one opportunity to appeal and there is no power to re-open an appeal that, under the CAA, is taken to have been dismissed.
Even in the absence of a provision equivalent to s 27(3), this court has held that, with limited exceptions that do not apply in this case, it does not have the power to re-open an appeal that has been dismissed and the order to that effect perfected: The State of Western Australia v Wallam [2008] WASCA 117(S) [6] - [17]. This follows the decisions of the High Court in Burrell v The Queen (2008) 238 CLR 218 and Grierson v The King (1938) 60 CLR 431. The law is the same in the civil context: Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232 [13] - [14].
20 There is now no equivalent to s 27(3) of the CAA in circumstances where an appeal is discontinued under the CAA. That is a departure from the statutory regimes that applied prior to the commencement of the CAA in February 2005. As correctly noted by Blaxell J in Macri v Thobaven [2010] WASC 18, under the former legislative regimes, on the filing of a notice of abandonment or a notice of discontinuance, an appeal was deemed or taken to be dismissed [13].
21 Rule 72 of the current Criminal Procedure Rules 2005 (WA) permits an appellant to discontinue an appeal to a single judge under pt 2 div 2 of the CAA by lodging and serving a discontinuance notice (form 26).
22 The appellant's first sentence appeal was under pt 3 of the CAA which deals with appeals from superior courts. The CA Rules apply to criminal appeals under both pt 2 and pt 3 of the CAA unless otherwise stated. Rule 59 of the CA Rules permits an appellant to discontinue an appeal by filing and serving a form 16. Rule 62 of the CA Rules provides that when an appeal is concluded, the registrar must issue a certificate of conclusion (form 17), which is the formal record of the Court of Appeal and forms part of the Supreme Court's record. The term 'concluded' is defined in the CA Rules to mean, in relation to a CA matter, decided, dismissed or discontinued.
23 In Grierson, the High Court expressly acknowledged the discretion that the Court of Criminal Appeal in England had identified to allow an offender to withdraw a notice of abandonment, notwithstanding that such a notice operated, in law, as a dismissal of the appeal. After confirming that, under the judicature system, no court had authority to review its own decision pronounced after a hearing once the decision had passed into a judgment formally drawn up, Dixon J said:
If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal … But in such a case there has been no determination by the court, and there is no English case in which, after such a determination [by the court], an appeal has been reopened or a fresh appeal has been entertained (436 - 437).
24 Kirby J in Burrell referred to this as an exception to the general rule, and noted it had not been disapproved (245). However, after Grierson was decided, the English Court of Appeal in R v Medway [1976] 1 QB 799 rejected the existence of a discretion to allow a notice of abandonment to be withdrawn. The court held that it had jurisdiction to grant leave to withdraw a notice of abandonment of an appeal only where it was satisfied that the notice of abandonment was a nullity, in the sense that the abandonment was not the result of a deliberate and informed decision. The conclusion in Medway was based upon the existence of a rule to the effect that upon giving a notice of abandonment, the appeal shall be deemed or treated as having been dismissed by the court.
25 In Bridges, five members of the Court of Criminal Appeal (this court's predecessor) followed Medway. For the reasons which we give later, the appellant falls well short of establishing that his notice of discontinuance of the first sentence appeal was a nullity.
26 However, the question that remains is what is this court's jurisdiction (or power) in circumstances where (1) there has been no determination of the appeal on the merits; (2) the appeal has been concluded by action of the appellant filing a notice of discontinuance, not by court order; and (3) there is no provision in the CAA or the CA Rules to the effect that a discontinued appeal is to be taken to have been dismissed.
27 The legislative history, the presence of s 27(3) in the CAA and the absence from the current law of any equivalent provision in relation to a discontinuance are positive indications that the legislature did not intend that the conclusion of an appeal by the filing of a notice of discontinuance should have the effect that the appeal is taken to have been dismissed. Rule 62 of the CA Rules falls well short of achieving that outcome.
28 Moreover, the case law confirming an intermediate appellate court's lack of jurisdiction or power to re-open an appeal that has been dismissed on the merits (directly or indirectly) and the order perfected, is not determinative.
29 In the circumstances of this case, this court has the discretionary power to permit the withdrawal of a notice of discontinuance in an appeal under s 40(1)(l) of the CAA, which empowers an appeal court to exercise any power that the Supreme Court may exercise in a civil case. The Supreme Court has the power to permit a plaintiff in a civil action at first instance to withdraw a notice of discontinuance, there having been no determination on the merits: Lawson v Wallace [1968] 3 NSWR 82; KBRV Resort Operations PtyLtd v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516 [40].
30 However, an appellant is not entitled to commence multiple appeals from the same decision. It remains the case that the CAA provides for but one appeal (with leave): JS; Vella v The Queen (1991) 4 WAR 278; (1991) 52 A Crim R 298; Bridges (330).
31 It is only because a civil cause of action survives a discontinuance that a plaintiff can commence a further civil action at first instance: The Owners of the Cargo of the 'Kronprinz' v The Owners of the 'Kronprinz' (1887) 12 App Cas 256. An appeal, by contrast, is entirely a creature of statute. Accordingly, the second sentence appeal is incompetent and must be struck out.
32 However, the exercise of the discretionary power to permit an appellant to withdraw a notice of discontinuance in an appeal is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must also be taken into account. Further, the merits of the appeal will always be relevant and often determinative. If, as in this case, there has been a very lengthy delay after the discontinuance, the appellant will need to establish that he would suffer a miscarriage of justice if he is not permitted to withdraw his notice of discontinuance. See by analogy, Wilson v The Stateof Western Australia [2014] WASCA 236 [27] - [38].
33 Against that background, it is necessary to consider the merits of the grounds. Before doing so, we will set out our reasons for concluding that the notice of discontinuance was not a nullity.
The appellant's evidence regarding nullity
34 In his affidavit sworn on 4 December 2014, the appellant deposed that, at the time he filed his notice of discontinuance, he was 'under mental illness, and fear[ed] … having the appeals struck down'. Therefore, he 'decided to discontinue the matters until [his] mental health and legal issues [were] remedied'. It appears that the 'legal issues' were in respect of his representation in his first appeal.
35 As to his alleged mental health issues, the appellant annexed to this affidavit a number of documents, including a report from a psychiatrist, Dr Edward Petch, dated 9 October 2014 (annexure C) and prison records obtained by the appellant via a freedom of information search (annexure D).
36 This material reflects that, in or about mid-August 2014 (some 10 months after the filing of the notice of discontinuance), the appellant suffered an episode of paranoid psychosis for which he was hospitalised at the Frankland Centre. On 21 August 2014, he returned to Acacia Prison. Prison notes made on 22 August 2014 record that the appellant was seen by a psychiatrist, whose assessment was:
Brief review. Seemed much improved. Engaged in treatment. [P]sychosis largely resolved. Frankland [C]entre report some residual symptoms. [P]lan to continue medications.
37 In his report, Dr Petch said that the appellant's 'condition now appears to be in remission'.
38 In his affidavit sworn on 2 April 2015, the appellant said that:
(a) He began to suffer from psychosis sometime after his imprisonment on 22 December 2009, and that his mental health deteriorated until his hospitalisation in August 2014.
(b) His psychotic condition progressively affected his 'decision-making ability'.
(c) This condition remained undiagnosed until his hospitalisation in August 2014.
39 As to the filing of the notice of discontinuance, the appellant deposed:
(a) At the time of filing the notice in October 2013, he was suffering from the symptoms of psychosis.
(b) He was fearful that his appeals would be dismissed unless he was legally represented.
(c) He believed that, once he had obtained legal representation, he 'could re-start the appeal, whereas if the court dismissed the appeal, [the appellant] could not'.
(d) He dismissed the lawyers who had been acting for him up to 16 May 2013 in respect of the first appeal, and subsequently discontinued the first appeal on his own behalf, because of his 'paranoia and delusional thoughts'.
40 The appellant gave sworn evidence in this court. His examination-in-chief was brief. He confirmed the truth of the two affidavits to which we have just referred. Those affidavits were then admitted as exhibits in the appeal (appeal ts 26; exhibits 1 and 2).
41 In cross-examination, the appellant accepted the following:
(a) He was fully aware that he was encountering 'mental difficulties' in prison between his incarceration in December 2009 and his sentencing in March 2012, however they were not so serious as to require him to see a doctor (appeal ts 26).
(b) He followed the arguments put to the court below by his counsel with respect to various issues, including the jurisdiction of the court to determine the charges, the mode of trial and whether it was possible to steal a chose in action. Further, he was able to give instructions to his counsel during this period (appeal ts 27).
(c) He was able to make decisions as to how his trial was run (appeal ts 27 - 28).
(d) No mention of his mental health issues was made in any of the affidavits he swore in support of his bail application (appeal ts 29 - 30).
(e) Following his conviction, but before his sentencing, he instructed his counsel as to his 'dietary and health problems', but not to his mental health issues. This was so, notwithstanding that he appreciated that matters related to his health (including his mental health) were potentially mitigating (appeal ts 31).
(f) There was no medical evidence that he was suffering from any mental health issues at the time he filed the notice of discontinuance (appeal ts 31).
42 As to the notice of discontinuance itself, the appellant accepted that:
(a) He understood what an adjournment was; and what an adjournment sine die meant (appeal ts 31 - 32).
(b) At the time he filed the notice of discontinuance, he realised that an option open to him was to apply to adjourn his appeals (to an unspecified date in the future or otherwise). Notwithstanding this, he elected to file the notice of discontinuance (appeal ts 32).
(c) When he sent the notice of discontinuance to the DPP, he did not mention in the accompanying letter his apparent desire to put the appeal off until his mental health issues had resolved and he obtained the services of a lawyer (appeal ts 32 - 33).
43 The appellant rejected propositions put to him by the respondent to the effect that, when the appellant filed the notice of discontinuance:
(a) he wished to bring the appeal to an end;
(b) he decided to have another go because he was bored in prison; and
(c) he was not suffering from any mental illness at the time he filed the notice of discontinuance (appeal ts 34).
Analysis
44 We do not accept that the appellant was suffering from any mental illness which was, in any way, causative of him filing his notice of discontinuance.
45 At no time either prior to trial or in the sentencing process did the appellant raise with his counsel any mental health issues. This is particularly surprising given that he instructed his counsel with respect to his other health issues.
46 None of the medical evidence put before this court by the appellant indicates that he had any mental health issues, either from the time he was remanded in custody (December 2009) to his sentencing (March 2012), or even up to the date on which he filed the notice of discontinuance (October 2013).
47 Even assuming that the appellant was suffering from some mental health issues, these were not so serious as to prevent him from conducting, on his own behalf, proceedings in the High Court of Australia.
48 We do not think that his decision to file a notice of discontinuance was affected by his inability to obtain legal counsel. The clear impression that we have is that the appellant is a capable and articulate man who was confident in his ability to conduct proceedings on his own behalf if necessary.
49 The appellant, as will become apparent, is an intelligent man who has some legal training and previous experience in the criminal justice system. His evidence reflects that he has a clear understanding of the difference between discontinuing proceedings and an adjournment. The letter he sent to the DPP which accompanied the notice of discontinuance makes no mention of any intention of resuming his appeal later. We do not accept that the appellant filed the notice of discontinuance believing that he could continue his appeal at a later date.
50 The onus is upon the appellant to establish that the notice of discontinuance was a nullity. We are not so satisfied.
The merits of the grounds of appeal
The grounds of appeal
51 The grounds of appeal pursued by the appellant are:
1. The learned sentencing judge erred in law in finding that the loss suffered by each customer's bank was an aggravating circumstance to be taken into account on penalty.
2. [Withdrawn at the hearing of the appeal.]
3. The learned sentencing judge erred in law in wholly cumulating the sentences imposed on Counts 28, 29, 143 & 368.
4. The learned sentencing judge erred in law by imposing individual sentences of imprisonment and the aggregate fixed term of imprisonment were each all manifestly excessive.
5. The learned sentencing judge erred in law by imposing a sentence that offended the principle of parity when compared with [the] sentence imposed on the co-offender AB [a pseudonym].
Summary of the appellant's offending
52 The salient facts of the appellant's offending were described by the learned sentencing judge in these terms:
Now, the facts are these, after your trial and consistent with the verdict of the jury, that you prepared an[d] installed compromised PIN pads at various McDonald's outlets throughout the Perth metropolitan area. McDonald's customers then used their bank cards at those outlets. And I'll use the term 'bank cards' to include all the various kind of cards that we heard during the trial.
But the customers attended at McDonald's outlets. They had their card date skimmed when they drove through the driveway, handed - placed their order, were handed the PIN pad and put their card in and handed the PIN pad back, collected their meal and then drove off.
The compromised PIN pads enabled their card data to be downloaded and then that was able - that information was able to be retrieved and subsequently installed on new blank cards with magnetic strips, which were then used at various ATMs around the world, including New South Wales, Canada, the United Kingdom, India and Malaysia. Withdrawals by way of unauthorised transactions were made at those places within a very short period of time, thereby debiting to the respective McDonald's customers' bank cards accounts the amounts so withdrawn.
Now, I've mentioned the total came to just over $400,000. And during the course of the trial the [respondent] opened on the basis that there was some 4,500 Western Australian customers and the total amount involved was approximately $3.9 million.
Now, you are not sentenced on the basis that you were involved in stealing that amount of money. The reason I mention the amount and the number of people affected is that it illustrates the financial gains and how it can be spread throughout the community when offences of this kind are carried out.
The evidence indicates that you were involved in the technical aspects of the card skimming operation. Now, in that regard the [respondent] has provided submissions in which it's indicated that your fingerprint was found on the circuit board of a skimming device recovered from McDonald's at Maddington. Your fingerprints were on a McDonald's receipt, on the reverse of which was a sketch closely corresponding with the wiring installed in the skimming devices.
Your fingerprint was on a junction box forming part of an electrical component that was capable of powering up a PIN pad handset software - for software testing and development purposes. Your fingerprint was on a things-to-do list containing references to order what is said to be printed circuit board probes and a mag stripe and readers.
There's a reference in your diary to order a Bluetooth STM and a laptop bag found in your apartment in New South Wales [that] compellingly linked you, both by your fingerprints and the Canadian provenance of some of its contents, to items it contained, being a Bluetooth communications device capable of increasing the range from which data could be downloaded, a power adaptor, a circuit board designed as a cousin to that found in the skimming devices recovered from McDonald's Restaurants in Perth.
And in addition to that, there were matters found in your apartment subsequent to the offending which indicate your involvement, at least, with glue and a roll of wire that was with other material in a box that was capable for use in the preparation of circuit boards. Your fingerprints were on a Card Services invoice relating to the purchase of 23,000 blank magnetic cards, but that also is subsequent to the offending.
And your fingerprints were on documentation relating to the consignment of plastic cards to an address in Canada, which corresponded to an address of a referee of yours on your passport application form. Now, those three matters that I've mentioned all relate to matters subsequent to the offending, but they were found in your apartment.
Your precise role in the offending is not necessarily known (sentencing ts 2053 - 2055).
The appellant's personal circumstances
53 The appellant was born in Sri Lanka in 1982. At the time he was sentenced, he was 29 years of age. Due to civil unrest in Sri Lanka, the appellant's family relocated to India. In 2000, the appellant went to live in Canada. After completing his schooling there, he studied engineering for a year. Later, he went to law school. He evidently did not complete his legal studies.
54 While in Canada, he was convicted of fraud and sentenced to a total effective sentence of 5 months 15 days' imprisonment. In 2006, he was charged with fraud relating to the use of credit cards. These matters were set down for trial in 2010, but in July 2009, the appellant left Canada and came to Australia.
55 The appellant suffers from what the learned sentencing judge described as 'dietary problems' arising from a thyroid condition and an infection in his abdomen. It was accepted that prison food was 'inconsistent' with these problems and this, coupled with his religious and cultural circumstances, had caused him difficulties in custody.
Ground 1 - the financial loss
56 The appellant contends the sentencing judge erred in taking into account the full extent of the total financial loss of $401,086.13 because the loss was suffered by the financial institutions who had reimbursed the complainants. The submission is misconceived and without merit.
57 The counts in the indictment pleaded that the appellant 'stole a chose in action namely the right to withdraw [a specified amount] in money from [the financial institution], the property of [the specified complainant]'.
58 In relation to a deposit account, the relationship between a banker (and equivalent) and its customer is that of debtor and creditor, respectively. The customer has a chose in action against the bank, the value of which is the amount standing to the credit of the customer in the account. The withdrawals the subject of the counts in the indictment reflect the actual loss of the complainants, even though they were subsequently reimbursed by the relevant financial institution. The position of the complainants in this case is equivalent to the owner of stolen property that is fully insured.
Grounds 3 and 4 - totality
59 As the appellant's counsel explained, these grounds allege that the total effective sentence imposed infringed the first limb of the totality principle.
60 This court is not entitled to intervene simply because it would have exercised a sentencing discretion differently to that exercised by the sentencing judge. The jurisdiction to intervene is only enlivened if a material error of fact or law is established. A claim against the totality principle is a claim of implied error. The appellant must persuade this court that the total effective sentence is plainly unjust or unreasonable.
61 The first limb of the totality principle requires that the total effective sentence be a just and appropriate reflection of the total criminality involved in all of the relevant circumstances, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally.
62 It was submitted that none of the victims (that is, the persons whose accounts were skimmed) were especially vulnerable, and the appellant was no more than 'a technical foot soldier' in the offences (appeal ts 51). Counsel submitted that the total effective sentence imposed upon the appellant was high and of the kind imposed for offences of dishonesty which involved greater criminality than was exhibited in this case.
63 The information that was skimmed from the compromised EFTPOS machines was rapidly downloaded and the data was placed on blank cards with magnetic strips. These cards were subsequently used at various ATMs in New South Wales, Canada, the United Kingdom, India and Malaysia to make unauthorised withdrawals from the relevant accounts. The data was skimmed and the withdrawals were made without the account holders' knowledge and before they had any opportunity to protect their interests.
64 Credit or debit cards supposedly protected by a PIN are nowadays ubiquitous. For many, the predominant means by which they can access their bank accounts, make transactions and obtain cash. Skimming has the real potential to both disrupt the banking system, and to undermine the community's confidence in making electronic transactions.
65 Contrary to the submission made on behalf of the appellant, the McDonald's customers were vulnerable. The modifications to the PIN pads that enabled the offences to be committed were, in this case, skilfully effected so that neither the customer nor McDonald's employees were aware that the PIN pads had been compromised. Anyone who pays by using a card and PIN is vulnerable to the kind of financial predation, which is the very object of the scheme in which the appellant knowingly involved himself. The pool of vulnerability to this type of offending is enormous.
66 Further, we do not accept the appellant's submission regarding his role in the criminal activity. To the contrary, the appellant played an integral role in the offending, because:
(a) it was the appellant who prepared and installed the compromised PIN pads at the various McDonald's restaurants;
(b) the various documents and items found in the appellant's apartment in New South Wales showed that the appellant was deeply involved in the technical side of the skimming scheme; and
(c) the fact that the appellant, first, was prepared to travel to Perth from Sydney to install the compromised PIN pads on more than one occasion; and second, that he did so at a number of McDonald's restaurants, illustrates that the appellant was fully committed to the scheme.
67 It cannot be overlooked that the appellant committed a large number of offences and the amount of money ultimately lost by the various financial institutions was substantial.
68 This was highly organised criminal activity involving a great deal of planning, expertise and coordination. Given this, and the adverse effects of the offending, the predominant sentencing objective in this case was deterrence, both personal and general.
69 With respect to personal deterrence, the appellant has prior convictions for fraud. There is nothing to indicate that he is, in any way, remorseful for his offending, or that he acknowledges the error of his ways.
70 In our opinion, the appellant's offending may properly be seen as being at the high end of the scale of seriousness of offences of this type.
71 In this jurisdiction, there are no real comparative cases. In Nikaghanri v The State of Western Australia [2009] WASCA 192, the appellant received a total effective sentence of 6 years' imprisonment for various fraud and passport offences. In that case, the appellant engaged in what is known as 'advance fee fraud schemes', the gravamen of which is to trick prospective victims into parting with funds by persuading them that they will receive a substantial benefit in return for providing some payments in advance. Two of his victims were over the age of 60 years. The total amount defrauded was $132,429. The offending in Nikaghanri had the hallmarks of organised crime in that it was carried out in company and also involved a significant level of planning and coordination. This court dismissed that appellant's appeal against sentence. On the question of totality, the court was of the view that the total effective sentence was a proper and proportionate response to the criminality of the appellant's conduct as a whole. The overall facts and circumstances of the present case are more serious than Nikaghanri.
72 In any event, the outcome of one case does not demonstrate that the total effective sentence imposed in the present case was erroneous.
73 The appellant also referred to The State of Western Australia v Chapman [2012] WASCA 203 and Wittensleger v The State of Western Australia [2014] WASCA 205. It is unnecessary to set out the facts and circumstances of those cases save to say that, while each involved serious dishonesty, neither concerned organised crime of the type and scale engaged in here.
74 There was little to be said by way of mitigation. The appellant did not have the advantage of the pleas of guilty and, as we have already noted, there was an absence of remorse. He had relevant prior convictions and it cannot be said that he was a man of good character or that he was a stranger to offences of dishonesty. There is some mitigation to be found in his health issues, which mean that his time in prison will be more difficult than usual. Some allowance may also be made for the fact that the appellant will serve his sentence away from family and friends.
75 Having regard to all of the relevant sentencing considerations, we are satisfied that the appellant falls well short of establishing that the total effective sentence infringes the totality principle. There is no reasonably arguable claim that the individual sentences are manifestly excessive.
Ground 5 - parity
76 By application dated 30 October 2014 the appellant sought an order for the supply of suppressed documents (the discovery application) relating to the sentencing of his co-offender, whom we will refer to as AB. In support of that application, the appellant relied on an affidavit sworn by him on 30 October 2014.
77 The scope, purpose and application of the parity principle is well understood. See Green v The Queen [2011] HCA 49; (2011) 244 CLR 462. We have considered all relevant material relating to the question of parity. We are satisfied that ground 5 is without merit and that the discovery application should be dismissed for the reasons stated in the annexure to this judgment. Save for publication to the DPP and for publication by him to the High Court of Australia in the event of an application to that court, we would order that the annexure be suppressed until further order.
78 As none of the grounds of appeal have merit, it is pointless to allow the withdrawal of the notice of discontinuance.
Conclusion
79 We would dismiss the discovery application, the application to withdraw the notice of discontinuance of the first sentence appeal and the second sentence appeal. We would also make a suppression order in the terms set out above.
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