R v Black - [2002] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- BLACK [2002] WASCA 26

CORAM: MALCOLM CJ
WALLWORK J
WHITE AUJ

HEARD: 6 DECEMBER 2001

DELIVERED : 18 FEBRUARY 2002

FILE NO/S: CCA 127 of 2001

BETWEEN: THE QUEEN
Appellant
AND
ROBERT JAMES BLACK
Respondent

Catchwords:

Criminal law and procedure - Crown appeal against sentence - Whether the sentences imposed were manifestly inadequate

Legislation:

Criminal Code (WA), s 687(1), s 688(2), s 689(3)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr R E Cock QC
Respondent: Mr R A Mazza

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Mazza & Mazza

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

Chua v The Queen [2001] WASCA 353
Dinsdale v The Queen (2000) 202 CLR 321
Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997
Heryadi (1998) 98 A Crim R 578
House v The King (1936) 55 CLR 499
Miles v R (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
Radebe v The Queen [2001] WASCA 254
Thomson (2000) 115 A Crim R 104
Verschuren v R (1995) 17 WAR 467

Case(s) also cited:

Duffy (1996) 85 A Crim R 456
Haman v The Queen [2000] WASCA 369
Harrison v The Queen, unreported; CCA SCt of WA; Library No 930291; 27 May 1993
Hayes v R [1981] WAR 252
Jarvis v R (1998) 20 WAR 201
R v Birch (1993) 69 A Crim R
R v Everett (1994) 73 A Crim R 550
R v Greenburg (1993) 68 A Crim R
R v Grein [1989] WAR 178
R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996
R v Wilkinson (1996) 85 A Crim R 353
Ryan v The Queen [2001] HCA 21
Siganto (1998) 194 CLR 656
Streeton v The Queen, unreported; CCA SCt of WA; Library 950282; 1 June 1995

MALCOLM CJ: In my opinion this Crown appeal against sentence should be dismissed for the reasons to be published by White AUJ with which I am in complete agreement.
WALLWORK J: I agree with the reasons for judgment of White AUJ and to the order proposed by his Honour.
There is nothing I wish to add.
WHITE AUJ: This is a Crown appeal against sentence.
The respondent was presented before the District Court of Western Australia on 13 August 2001 on four counts of stealing as a servant and four counts of falsifying a record, to which charges he pleaded guilty. Mr Cock QC for the appellant submitted that the offences were of the utmost seriousness because:
"a.The period over which the dishonesty was perpetrated by the respondent was 7½ years from 17 September 1993 to 25 April 2001;
b.the amount of money left outstanding was $2,198,461.60 with no hope of restitution;
c.the quality and degree of trust reposed in the respondent was extreme;
d.the impact of the offences on the public and public confidence in Bank West and the effect on fellow employees was severe;
e.the respondent’s actions were deliberate, systematic and premeditated;
f.the respondent’s position in the Bank gave him knowledge of the systems which were in place to prevent dishonest activity and the respondent used this knowledge to avoid detection; and
g.the respondent took extensive steps to disguise his wrongdoing:
i.keeping the amount of documentation to a minimum;

ii.shredding any documentation which was produced when it was no longer required;
iii.setting up a separate post office box;
iv.contacting bank staff at other branches when accounts were closed off and telling him that he would take care of the matter; and
v.converting to the use of personal loans when the Bank tightened up its systems in respect of home loans."

On 17 August 2001, the learned sentencing Judge sentenced the respondent to 2 years' imprisonment on each of the counts of making a false entry (counts 1, 3, 5 and 7 on the indictment) and to 4 years' imprisonment on each of the counts of stealing as a servant. The sentences on counts 1 and 2 were made cumulative and the sentences on all other counts were concurrent, resulting in a total effective sentence of 6 years' imprisonment. The respondent was made eligible for parole and his sentence was directed to commence on 13 August 2001.
Mr Cock accepted that the principles relating to Crown appeals against sentence apply and referred to Dinsdale v The Queen (2000) 202 CLR 321. In that case, it was pointed out that, in considering an appeal by the Crown against sentence, this Court exercises the jurisdiction given by s 687(1) of the Criminal Code (WA) to hear and determine a prosecution appeal against sentence brought pursuant to s 688(2). The powers of this Court on such an appeal are prescribed by s 689(3) which relevantly provides:
"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal."
The task of this Court is to determine whether there was error made in sentencing the accused, as explained in House v The King (1936) 55 CLR 499 at 505:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodies in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The grounds of the appeal are:
"The learned Judge erred in that:-
1.He placed too much emphasis on matters personal to the Respondent.
2.The sentence failed to adequately reflect the seriousness of the offence.
Particulars
(a)the quality and degree of trust reposed in the Respondent was extreme.
(b)the period over which the dishonesty was perpetrated by the Respondent was 7‑1/2 years from 17 September 1993 to 25 April 2001. the Respondent's actions were deliberate, systematic and pre‑meditated.
(b)The amount of money taken by the Respondent was $2,198,461.60.
(c)The impact of the offences on the public and public confidence in BankWest and the effect on fellow employees was severe.
3.The sentence failed to adequately reflect the need for general deterrence.
4.The sentence imposed was manifestly inadequate in the circumstances."
Mr Cock submitted, correctly as I think, that the sentencing discount for a plea of guilty under the fast‑track system commonly ranges between 20 per cent to 25% per cent and 30 per cent to 35 per cent depending upon the circumstances: Miles v R (1997) 17 WAR 518 at 521; Radebe v The Queen [2001] WASCA 254. In par 28 of Radebe McKechnie J, with whom Malcolm CJ and Anderson J agreed, held that:
"Following Little, it is likely to be an unusual case where a sentence for a fast-track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty."
In Thomson (2000) 115 A Crim R 104 at 137, the New South Wales Court of Criminal Appeal held, in a guideline judgment which considered the Western Australian position, that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 to 25 per cent discount on sentence.
Mr Cock submitted that the learned sentencing Judge erred in giving a 33 per cent discount for the respondent's plea, but accepted that a discount of 25 per cent for the utilitarian benefit of the plea was appropriate. He referred to Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997 at 3 ‑ 6; Radebe (supra) at 7 ‑ 9; and Chua v The Queen [2001] WASCA 353 at 4 ‑ 7 and 12 ‑ 13.
Mr Cock submitted that the respondent's plea of guilty had less mitigatory effect because he was caught red‑handed: Heryadi (1998) 98 A Crim R 578 at 584. It is true that the police had been called in by the bank and that they attended on the appellant in connection with the offences. However, the police were not in possession of the full circumstances and the appellant made a frank admission to the police and gave details of the transactions involved in the commission of the offences which were of assistance to the investigation and the prosecution.
Mr Cock said that the Crown contends primarily that the Court should uphold the appeal and re-sentence the respondent on two bases: firstly that a sentence of 6 years' imprisonment in respect of criminality covering seven and a half years, involving almost $2,200,000 in circumstances of the position of trust as explained by the learned sentencing Judge is "obviously so low as to demonstrate an error and this Court should intervene, otherwise the confidence the community has in the judicial system will be to an extent eroded".
Secondly, he said, the appellant sought to demonstrate a number of errors in approach or principle adopted by the learned sentencing Judge whereby he seemed "to have accumulated matters by way of mitigation which are already accommodated in other reductions he made to the ultimate sentence".
Mr Cock submitted that a sentence of 11 years' imprisonment (7 years and 4 years cumulative) even with remorse was an appropriate starting point: Verschuren v R (1995) 17 WAR 467 per Malcolm CJ at 470 ‑ 473 and per Murray J at 481-491. Taking from that a discount of 25 per cent would have resulted in an aggregate penalty of 8 years and 3 months from which further discounts would have to be made by reason of the respondent's co-operation with the police.
While accepting that the respondent had no prior record and favourable antecedents, Mr Cock submitted that in a case such as the present, the "offender's antecedents are less significant than they might normally be because it is often the history of impeccable antecedents which allows the offender to hold the position of trust and perpetrate the crime. In these circumstances a penalty designed to deter others is of principal consideration." In Pearce v The Queen (1998) 194 CLR 610 at 624, Gummow J remarked that:
"Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process."
The report on the respondent by Dr Zdenek Srna, Consultant Psychiatrist dated 21 August 2001 expresses his conclusions as follows:
"From the available evidence and my assessment I conclude that the diagnosis in this case is Pathological Gambling followed by Adjustment Disorder with depression (as per Attachment 1 and 2, DSM-IV-TR Diagnostic Criteria. There is no evidence of any major psychiatric illness in this case, most notably any major affective disorder or psychosis."
The attachments referred to in that report are:
"Pathological Gambling Diagnostic Criteria as per DSM IV‑TR
A.Persistent and recurrent maladaptive gambling behaviour as indicated by five (or more) of the following:
(1)is preoccupied with gambling (eg preoccupied with reliving past gambling experiences, handicapping or planning the next venture, or thinking of ways to get money with which to gamble)
(2)needs to gamble with increasing amounts of money in order to achieve the desired excitement
(3)has repeated unsuccessful efforts to control, cut back, or stop gambling
(4)is restless or irritable when attempting to cut down or stop gambling
(5)gambles as a way of escaping from problems or of relieving a dysphoric mood (eg feelings of helplessness, guilt, anxiety, depression)
(6)after losing money gambling, often returns another day to get even ("chasing" one's losses)
(7)lies to family members, therapist, or others to conceal the extent of involvement with gambling
(8)has committed illegal acts such as forger, fraud, theft or embezzlement to finance gambling
(9)has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling
(10)relies on others to provide money to relieve a desperate financial situation caused by gambling
BThe gambling behaviour is not better accounted for by a Manic Episode."
and
"Adjustment Disorder as per DSM IV Criteria
A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B.These symptoms or behaviours are clinically significant as evidenced by either of the following:
(1)marked distress that is in excess of what would be expected from exposure to the stressor
(2)significant impairment in social or occupational (academic) functioning
C.The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a pre‑existing Axis I or Axis II disorder.
D.The symptoms do not represent Bereavement.
E.Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.
Acute:if the disturbance lasts less than 6 months
Chronic:if the disturbance lasts for 6 months or longer. By definition, symptoms cannot persist for more than 6 months after the termination of the stressor or its consequences. The Chronic specifier therefore applies when the duration of the disturbance is longer than 6 months in response to a chronic stressor or to a stressor that has enduring consequences.
Adjustment Disorders are coded according to the subtype that best characterises the predominant symptoms.
With Depressed Mood: when the predominant manifestations are symptoms such as depressed mood, tearfulness, or feelings of hopelessness.
Unspecified: for maladaptive reactions (eg physical complaints, social withdrawal, or work or academic inhibition) to stressors that are not classifiable as one of the specific subtypes of Adjustment Disorder."
His Honour, in the course of his lengthy sentencing remarks, carefully noted the relevant factors and correctly identified his task when he said:
"The court in imposing a sentence must impose a sentence which is in proportion to the seriousness of the offence and the seriousness of the offence is to be determined by taking into account the statutory penalties which are prescribed by law for this type of offence, by taking into account also the circumstances in which the offences occurred and by taking into account also such matters of aggravation or mitigation as there may be."
His Honour identified the maximum statutory penalties for the offences of making a false entry (imprisonment for a term of 7 years) and for the stealing offences (imprisonment for a term of 10 years). His Honour then went on to say, inter alia:
" What is apparent is that your course of offending commenced back in 1993 at the time when you were in Wyndham. Before that time you had been in the employ of the bank for some 8 years or so and when you went to Wyndham, you got into gambling to such an extent that you then had to supplement it by setting up the accounts at the branch there where you had the autonomy to do so and to then commence what continued over a period of 7 and a half years a persistent taking of moneys from the bank to feed your gambling habit and seemingly that habit only got wo5se with the passage of time.
You weren't able to stop yourself from gambling. You were only able to continue gambling by taking more, upon more, upon more money from your employer. It is apparent from the facts that this involved a complex scheme, a sophisticated scheme of deception and that you actively took steps to avoid detection. You knew the bank procedures so far as opening the accounts were concerned and you avoided those procedures. You knew the bank's procedures for auditing of accounts and you were able by reason of your position and responsibility and seniority in the bank to avoid the audits as and when they were done.
You also elicited the assistance of other staff within the branches where you were employed from time to time to unknowingly, unwittingly, assist in your criminal conduct. You applied or were elevated to more senior positions after Wyndham, culminating in your appointment as BankWest district manager in Bunbury despite the fact that at the same time you were committing this fraud on your employer.
It was sophisticated in that you set up a bring‑up system to bring up the dates when loans were due. You set up a post box in each area where you lived. On the pay out of loans other staff who trusted you did as you asked them to do so that you could do the necessary paperwork without arousing any suspicion. You lied to staff. You circumvented bank safeguards and you lied to the auditors. These are all aggravating factors, the manner and the method which you went about systematically defrauding the bank by opening the accounts and then gambling the money away which you took from the bank.
Clearly it is a substantial sum of money by anyone's standards. The frauds involved a sum in the order of $2.9 million of which $2,198,461.60 is still outstanding. That is a loss which the bank will have to bear. There is no prospect of restitution by you to the bank for that sum of money. The amount of money involved in cases of premeditated, planned deception, as this was, and fraud are of necessity an important factor in the question of determining the degree of criminality, for the amount involved is an indication of the extent to which a person is prepared to go in his dishonesty and to flout the law and to advance their own issues. So clearly the sum involved is an aggravating factor given that it is such a large sum.
Your conduct involved a breach of trust with your employers and also of your fellow employees, those who looked up to you, who saw your elevation through the ranks of the bank to the position of district manager. They had faith in you, they had confidence in you and they had trust in you and that has been sorely destroyed. I have mentioned that you circumvented bank procedures in opening the accounts and in avoiding detection and that you lied to the auditors. They are, as I said, aggravating factors on the one hand. On the other hand there are the mitigating factors that have been said on your behalf which I have to balance in considering an appropriate sentence so far as these offences are concerned.
As to your personal position, I am aware that you are now 32 years of age. You have been married for some 10 years and you have two children aged 6 and 4. You are presently unemployed. I do note that you have been working in a voluntary capacity with the Armadale home help service for the aged and disabled. I have been provided by your counsel with a number of references from persons who have known you, many of them for the whole of your life or at least since you attended schooling with them in primary school and through the high school period. They all without exception speak highly of you. They speak well of your personality, your willingness to assist them, to be a mate, to be a friend in need, and they also [sic speak] of your community involvement through the various sporting bodies which you have been involved with both as a player and as an administrator in those sports.
...
... There are a number of other factors which are what I describe as mitigating factors. Clearly your cooperation with the police at the time when they arrived on Anzac Day with the search warrant and your open admissions to them straight off is clearly a mitigating factor, as was described to me. In the video record of interview it was almost as though a great weight had been lifted from your shoulders to know that the game was up and it was all over now. It was a baring of your soul but at least there was relief that you didn't have to carry on this double identity any further.
You have also cooperated with your former employer BankWest in identifying how you were able to facilitate the opening of the accounts and the stealing of funds from the bank such that the bank has been able to put in place procedures in an endeavour to ensure that it doesn't happen again. That cooperation must be recognised as a mitigating factor also. You have no prior convictions for any type of offence. You are a first‑time offender as you come before the court now.
Your positive good character, your excellent antecedents, as I have mentioned, as I have mentioned, by way of the testimonials or references that have been provided to me are also mitigating factors. You have in your letter to me and it is also reflected in the pre‑sentence report which has been obtained for the assistance of the court – you have indicated remorse and sorrow for what you have done and you have also displayed an insight into your offending behaviour and you have also admitted responsibility for your actions. There has been no longer any hiding or covering up of the fact of your having stolen these funds from the bank.
...
The fact of having entered an early plea of guilty on the fast‑track system must be recognised in my sentence today. The saving to the administration of justice and there being no trial is of itself a basis for granting a discount. It is a powerful mitigating factor in a case such as this; not only does it save the state the cost of maintaining the prosecution as a full defended prosecution, preparing for a lengthy trial, compelling witnesses to come and give evidence and then the conduct of the trial, it also saves the witnesses the anguish and trauma of the trial process.
Decided cases indicate that sentencing discounts for pleas of guilty under the fact‑track system range from between 20 and 35 per cent and are commonly around 30 per cent discount. A proper exercise of sentencing discretion in this case in my view calls for a discount of one third or 33 and a third per cent of the sentence of what might otherwise be an appropriate sentence.
The court in sentencing must pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. Yours was a deliberate, systematic and planned criminal course of conduct over a period of 7 and a half years. On the facts of this case general deterrence is a prime consideration. There can be no doubt, having regard to the seriousness of the offences, that the factor of general deterrence must be accorded substantial weight in the sentencing process."

His Honour took into account the totality principle and, in the end, concluded that an effective sentence of 6 years' imprisonment was appropriate. That sentence was structured by imposing concurrent terms of 2 years' imprisonment on each of the four counts of the making of a false entry, cumulatively upon concurrent terms of 4 years' imprisonment on each of the four counts of stealing. Although the indictment charged separately four counts of the making of a false entry and four counts of stealing it would not, in my opinion, have been inappropriate to make the sentences on each of the counts of the making of a false entry concurrent with the relevant count of stealing, being part and parcel of the same criminal conduct. Accordingly, his Honour might have structured the sentences by imposing sentences of 6 years' imprisonment on each of the stealing offences and 4 years' imprisonment on each of the counts of the making of a false entry, all such sentences to be concurrent with one another. The final result would have been the same.
The sentences imposed upon the respondent by the learned sentencing Judge may, indeed, have been lenient in relation to the seriousness of the offences and the lengthy period during which the defalcations were carried out. However, I am not persuaded that they are so lenient as to demonstrate error. Bearing in mind that this is an appeal by the Crown, I would not interfere with the sentences imposed by the learned sentencing Judge in this case.
Accordingly, I would dismiss the appeal.