R v Cameron

[2005] NSWCCA 357

CITATION:	R v Cameron [2005] NSWCCA 357
HEARING DATE(S):	25/10/2005
JUDGMENT DATE:	10 November 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Adams J at 2; Hoeben J at 3
DECISION:	Leave to appeal granted. Appeal allowed. Sentences in respect of counts 1 and 2 confirmed. Sentence in respect of count 3 quashed and in lieu thereof applicant sentenced to a term of imprisonment of 2 years with a non-parole period of 15 months, such sentence to commence on 2 September 2005 and to expire on 1 September 2007 with the non-parole period to expire on 1 December 2006.

CATCHWORDS:	Sentence appeal - plea of guilty - irrelevance of strength of Crown case to utilitarian value - error - whether court should intervene - s44(2) Criminal Practice and Procedure Act - need to adjust non-parole period after partial accumulation of sentences to maintain statutory ratio.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Glenister (1980) 2 NSWLR 597 R v Pantano (1990) 49 A Crim R 328 at 330 R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton (2000) 49 NSWLR 303
PARTIES:	Alexander Douglas Cameron - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2005/1300
COUNSEL:	Wayne Flynn - Applicant James Bennett SC - Crown
SOLICITORS:	Marsden's Law Group - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3373
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ

2005/1300

McCLELLAN CJ at CL
ADAMS J
HOEBEN J

Thursday, 10 November, 2005

REGINA v Alexander Douglas CAMERON

JUDGMENT

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 ADAMS J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 11 February 2005 the applicant was sentenced by Maguire DCJ in respect of the following offences:

(i) Between 29 July 2001 and 11 September 2001 at Camden in the State of New South Wales, being entrusted with valuable security for the payment of money as a deposit for the purchase of property at 158 Argyle Street, Camden as an agent of the purchaser, Edward Dekleva, and being directed to pay the $92,000 to the vendor, Alsako Pty Limtied, or return the deposit to Edward Dekleva if the purchase did not proceed, misappropriated to himself $92,000 in violation of good faith and contrary to the direction of Edward Dekleva.

(ii) Between 4 July 2001 and 12 September 2001 at Camden in the State of New South Wales, being entrusted with valuable security for the payment of money as a deposit for the purchase of property at 30 Bligh Avenue, Camden as an agent of the vendor, Wendy Lanyon, and being directed to pay $12,950 to the vendor, Wendy Lanyon, or return the deposit to the purchasers, Stephen Stolzenhein and Jacqueline Crawford if the purchase did not proceed, misappropriated to himself $12,950 in violation of good faith and contrary to the direction of Wendy Lanyon.

(iii) Between 6 June 2001 and 1 November 2001 at Camden in the State of New South Wales, being entrusted with valuable security for the payment of money as a deposit for the purchase of property at 143 Werombi Road, Camden, as an agent of the vendor, Karen Perry, and being directed to pay $62,550 to the vendor, Karen Perry, or return the deposit to the purchasers, Mark Azzopardi and Leanne Azzopardi, if the purchase did not proceed, misappropriated to himself $62,550 in violation of good faith and contrary to the direction of Karen Perry.

4 The charges were contained in an indictment dated 1 July 2004 and each involved a contravention of s65 of the Crimes Act 1900. The maximum penalty provided for this offence is 10 years imprisonment. The applicant pleaded guilty to these charges in the Local Court and it was accepted that the pleas were entered at the first reasonable opportunity. Since the offences were committed before 1 February 2003, s44 of the Crimes (Sentencing Procedure) Act 1999 as previously enacted, applied.

5 His Honour imposed the following sentences:

Count 1
A term of imprisonment of 2 years with a non-parole period of 18 months, both to commence on 2 September 2004 with the term of the sentence to expire on 1 September 2006. The non-parole period was to expire on 1 March 2006.

Count 2
A term of imprisonment of 2 years with a non-parole period of 18 months, both to commence on 2 March 2005 with the term of the sentence to expire on 1 March 2007. The non-parole period was to expire on 1 September 2006.

Count 3
A term of imprisonment of 2 years with a non-parole period of 18 months, both to commence on 2 September 2005 with the term of the sentence to expire on 1 September 2007. The non-parole period was to expire on 1 March 2007.

Background to offences

6 At the material time the applicant was in charge of a real estate agency, the operating accounts of which he controlled. He was not the licensee, but was part-owner with the licensee who provided the finance for the business.

7 The applicant’s offence relevant to the first count concerned a deposit of $92,000, representing ten percent of the purchase price of the property, which he received from the proposed purchasers. He misappropriated these funds and used them for other commitments arising from his business activities. The transaction did not proceed, and when required to repay the deposit, he did so with two cheques, one of which was dishonoured and the other stopped. The deposit money was never repaid.

8 The conduct relevant to the second count concerned a deposit that the applicant had received from the purchaser of a property he was offering for sale on behalf of a client. The client received her settlement once the transaction was completed, but the applicant misappropriated the deposit, once again to meet other commitments from his business activities. When required to pay the deposit to the vendor, he did so by two dishonoured cheques.

9 The applicant’s conduct in relation to the third count concerned the deposit paid by a purchaser of a property he was offering for sale on behalf of a client. The deposit was to be held in a term deposit with the interest earned to be divided equally between the parties. The funds were not deposited as required, and to mask his misappropriation of these funds, the applicant provided a term deposit receipt later shown to be false. Once again the money was used to address pressing commitments from his business activities.

10 The victims were ultimately compensated by the scheme administered through the Office of Fair Trading.

11 It seems that the applicant was unsuccessful in his various business activities. This included the real estate agency. He moved funds around to cover his financial difficulties. In March 2001 he purchased the Eden Night Club at 88 Oxford Street, Sydney from a member of the Sydney underworld using vendor finance. This business was also unsuccessful.

12 The applicant said that at one point in 2001 he was working long hours at night in the night club, as well as putting in a full day’s work at the real estate agency. He sought assistance from Dr David Rockman for depression, anxiety and insomnia during September 2001. At that point his debts were increasing and he had exhausted all options of obtaining further moneys. The applicant was last seen at the real estate office on 10 September 2001. He left Australia for the United Kingdom in November 2001 and returned in May 2002 after he had changed his name overseas. He was arrested on 19 May 2003.

Remarks on sentence

13 The sentence proceedings were protracted. This occurred because his Honour was not satisfied as to the truth of the submissions being made on behalf of the applicant to the effect that the moneys paid by the Office of Fair Trading to the victims of the offences would be reimbursed. The matter came before his Honour on seven occasions between 1 July 2004 and 11 February 2005. By 15 December 2004 it was apparent that no more than $10,000 had been paid and was likely to be paid by way of reimbursement to the Office of Fair Trading. The applicant’s bail was revoked by his Honour on 2 September 2004 because his Honour was not satisfied that the outstanding moneys would ever be paid to the Office of Fair Trading and he was concerned that the applicant would not attend court if bail were continued. The remarks on sentence need to be looked at against that background.

14 As of 11 February 2005 the amount owed to the Office of Fair Trading in respect of these offences was $153,831.04. The applicant had no relevant criminal history. He was born on 14 June 1975. He was twenty six at the time of the offences and 29 when sentenced.

15 His Honour had regard to the following subjective matters which he extracted from the Probation and Parole report. The applicant had a close relationship with his family, which was supportive of him despite the offences. He was first married when he was aged twenty and had an eight year old son from that relationship. He married his second wife in April 2004 and that relationship remained positive. The applicant’s wife has a twelve year old daughter from a previous relationship. The applicant has a close relationship with that child.

16 In that report the applicant referred to a brief period of abuse of amphetamines and cocaine during 2001 brought about by financial pressures and the long hours he was working to manage both his business interests. At one point in 2001 he had threatened suicide and was hospitalised for five days.

17 On behalf of the applicant a report of Dr Westmore, psychiatrist, was placed before his Honour. His Honour rejected that doctor’s opinion because it conflicted with the way in which the applicant had conducted himself since his offences were discovered and conflicted with what his Honour saw as the applicant’s attempts to deceive the court as to the likelihood of the outstanding monies being repaid.

18 By reference to the evidence of the applicant and the submissions from time to time put on his behalf, his Honour concluded that the applicant had attempted to deceive the court as to the likelihood of the outstanding moneys being repaid. In that regard his Honour said:

“It is of course important to recognise that this man has to be punished only for the crimes to which he has pleaded guilty. His other reckless and dishonest conduct before, during and after the commission of those crimes does not attract any additional punishment.
However, that conduct does speak loudly of his lack of genuine contrition and of his extremely poor prospects of rehabilitation. I find each of those features to be the case.
I note his guilty plea. In the light of the strength of the Crown case it is of negligible value. These are serious offences. Deterrence looms large. Every citizen in a position of financial trust needs to be reminded that breaches like this will be dealt with appropriately.
I am of the view that a measure of accumulation is appropriate here having regard to the time scale and the number of victims.
I am mindful of the principles relating to totality and have taken them into account.
I do not see any special circumstances for the purpose of s44(2) of the Crimes (Sentencing Procedure) Act .”

The appeal

19 The only ground of appeal relied upon is:

(1) The sentencing judge erred in the manner in which he took into account the applicant’s plea of guilty.

20 As already indicated, included in his Honour’s remarks on sentence was the comment “I note his guilty plea. In the light of the strength of the Crown case it is of negligible value”.

21 That statement is said to reveal error on the basis that the strength of the Crown case was an irrelevant consideration when considering the appropriate discount for an early plea of guilty. The primary consideration should be the utilitarian value of the plea, a matter to which his Honour did not advert.

22 In response the Crown sought to justify his Honour’s comment on the basis that what his Honour was referring to was the value of the plea of guilty as a measure of the applicant’s contrition and prospects of rehabilitation. The Crown submitted that it was implicit in his Honour’s reasons generally that, notwithstanding that the pleas of guilty had some utilitarian value, the seriousness of the allegations, the continuing demonstration of lack of contrition, the poor prospects of rehabilitation and the weight to be given to general deterrence, was such that no discount should be applied.

23 I cannot agree with the Crown submission. As the Crown accepted, his Honour made no mention whatsoever of the utilitarian value of the plea of guilty. His Honour’s reference to the strength of the Crown case in the context of assessing the value of the early plea of guilty makes it clear not only that his Honour had regard to an irrelevant consideration but that he gave that irrelevant consideration pre-eminence in his reasoning process. Error in his Honour’s approach to the discount for the early plea of guilty has been demonstrated.

24 Not only did this Court set out the proper approach to an early plea of guilty (R v Thomson and Houlton (2000) 49 NSWLR 303) but as was demonstrated by Howie J in R v Sutton [2004] NSWCCA 225 this Court has on many occasions identified and sought to correct the very error which occurred in this matter.

“This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence. The following are but some of the decisions on this point in the four years since Thomson and Houlton was decided and this is not to indicate that the principle was other than patently obvious from the judgment of the Chief Justice in the guideline judgment ( R v Sutton para [12).”

Howie J in that paragraph set out seventeen decisions to similar effect. Regrettably there have been many such decisions of this Court since R v Sutton .

25 The applicant submits that since his Honour found that the pleas of guilty were entered at the first opportunity, a discount of 25% ought be applied to the sentences imposed with consequential adjustments to the non-parole period.

26 Although error has been demonstrated in his Honour’s approach to the early pleas of guilty, should this Court intervene? When an error is shown which has adversely affected an offender, ordinarily one would expect the Court to intervene, unless constrained by the provisions of s6(3) of the Criminal Appeal Act 1912. The precise meaning of the phrase “some other sentence, whether more or less severe is warranted in law and should have been passed” in its application to the circumstances of all sentence appeals is, perhaps, somewhat uncertain. However, where a lesser sentence would have been appealably wrong, s6(3) must result in the rejection of an offender’s appeal which, in effect, would require such a result, unless perhaps the circumstances were very exceptional. In the circumstances of this case, it is unnecessary to consider other possible ways of applying the provision.

27 To apply a discount in the order of 25% to the sentences imposed by his Honour would reduce the head sentences to 18 months and the non-parole periods to approximately 13 months if one rounded off the period. Applying the same approach to accumulation and concurrency as did the sentencing judge, the overall head sentence would be one of 2 years and 6 months with a non-parole period of 2 years and 1 month. This is to be compared with the overall head sentence awarded by his Honour of 3 years with a non-parole period of 2 years and 6 months.

28 Two issues arise. First is it reasonable to assume a discount of 25% for the plea of guilty? Secondly, would the sentence adjusted in the way suggested be permitted by s6(3) of the Act in the way mentioned above.

29 The Crown submitted that the sentence so adjusted would be so lenient as to fall below the applicable discretionary range particularly in respect of the non-parole period. The Crown emphasised the finding by his Honour of no special circumstances with specific regard to the continuing lack of contrition and poor prospects of rehabilitation of the applicant demonstrated by his protracted attempts to deceive the Court during the sentencing process.

30 Whilst I agree that, absent other considerations, a discount of 25% for the early plea of guilty would be appropriate, I also agree with the Crown that the consequential reduction in the sentences flowing from such an approach would reduce the sentences to a level which was below the appropriate range.

31 There were three separate offences which took place over a period of months and which involved three separate victims. The objective seriousness of the offences was significant and being white collar crimes the factor of general deterrence is an important element of sentencing for such offences (R v Pantano (1990) 49 A Crim R 328 at 330, R v Glenister (1980) 2 NSWLR 597). A comparatively small amount has been paid by way of restitution and it is most unlikely that any further moneys will be paid. Finally there are no compelling personal circumstances which would attract significant leniency. On the contrary as his Honour found, there were no special circumstances and the applicant’s conduct during the sentencing process in relation to the question of restitution demonstrated a lack of remorse and poor prospects of rehabilitation.

32 Were this the only matter raised by the applicant I would have been of the opinion that the Court should not intervene. As indicated, a discount of 25% for the early pleas of guilty would reduce the sentences to a level which was less than adequate and such a deduction was not warranted by law.

33 During the course of argument, however, counsel for the applicant brought to the Court’s attention that although in respect of the individual sentences the non-parole period conformed to the statutory ratio in s44(2) of the Crimes (Sentencing Procedure) Act 1999, when looked at as a whole the ratio between the total non-parole period and the total head sentence was 83.33%. This had occurred because of the way in which his Honour had accumulated the sentences.

34 Although this matter was not raised as a ground of appeal, counsel for the applicant submitted that when taken with the error in relation to the approach to the pleas of guilty, at the very least the ratio between the actual period to be spent in custody and the total head sentence should be adjusted to reflect the statutory ratio of 75%.

35 I agree with that submission. Whilst the sentences awarded by his Honour in respect of each offence were appropriate, the total effect of those sentences when partly accumulated needs to be adjusted so as to achieve the statutory ratio of 75% between the total non-parole period and the total head sentence. I propose to do this by retaining the sentences awarded by his Honour but adjusting the non-parole period in respect of count 3.

36 The orders which I propose are:

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The sentences imposed in respect of counts 1 and 2 are confirmed.

(4) The sentence in respect of count 3 is quashed and in lieu thereof, the applicant is sentenced to a term of imprisonment of 2 years with a non-parole period of 15 months both to commence on 2 September 2005 with the term of the sentence to expire on 1 September 2007. The non-parole period is to expire on 1 December 2006.

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