R v Donald John Storen No. SCCRM 93/345 Judgment No. 4238 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 4238

COURT IN FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(2), OLSSON(1) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - appeal against sentence - thirteen offences under Bankruptcy Act 1966 - large number of social security offences taken into consideration - sentence of 4 years imprisonment with 2 year non parole period - non parole period not subject to remissions - sentence not excessive in the circumstances - appeal dismissed. Bankruptcy Act 1966 and Crimes Act 1914s4K(4).

HRNG ADELAIDE, 22 October 1993 #DATE 25:11:1993
Counsel for appellant Storen:    Mrs M Shaw
Solicitors for appellant:        Camatta Lempens
Counsel for respondent:         Mr D Chapman
Solicitors for respondent:     Director Of Public
   Prosecutions (Cwlth)

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal, by leave, against a sentence imposed on the appellant consequent upon his pleas of guilty to some thirteen separate offences under the Bankruptcy Act, 1966. 2. Various grounds of appeal were pleaded and argued but, at the end of the day, the essence of the appellant's complaint is that both the head sentence and non parole period were manifestly excessive in all the circumstances and that, in particular, the length of the non parole period was an unduly large proportion of the head sentence, after due allowance is made for remissions in relation to the latter. 3. The material before the learned sentencing judge indicated that the accused, who is 45 years of age, embarked upon a course of conduct, in breach of the provisions of the Bankruptcy Act, extending over a period from 24 July 1990 to 3 March 1992. 4. Those offences were of two types. Nine of them related to separate instances of obtaining credit to the extent of $500 or more from a person without informing that person that he was an undischarged bankrupt. Four of them concerned separate instances of carrying on business under a firm name without informing every person with whom he dealt that he was an undischarged bankrupt. 5. It is important to note that those offences took place against a background in which two important facets stood out:- First, the offences arose from quite deliberate activities which, at all material times, the appellant well knew were in breach of his statutory obligations. Indeed, he had been declared bankrupt on two successive occasions. The first was on 16 May 1975. The second was on 31 January 1989. Moreover, the second period of bankruptcy had been extended, by court order, from three to five years, due to the conduct of the appellant. There was found amongst his papers a written notice formally advising him of his relevant statutory obligations. 6. Secondly, a perusal of the appellant's antecedent record revealed that he had one prior conviction for fraud and three prior convictions for false pretences. Certain of the offences now under consideration constituted breaches of a bond to be of good behaviour entered into by the appellant in relation to the latter. It must further be kept firmly in mind that, at the request of the appellant, the learned sentencing judge took into consideration no less than fifty-nine admitted offences, on the part of the appellant, of knowingly obtaining payment of various Social Security benefits not payable due to the appellant's employment circumstances and income at relevant times. Those offences were committed, as a course of conduct, over approximately three years and two months commencing on 22 February 1989. 7. The bankruptcy offences involved a total sum of $29,943.10 plus unpaid rental of $5,551.98, as to which there was no practical prospect of restitution. The Social Security offences involved overpayments of almost $15,000. 8. I digress at this point to reiterate what has been said by this Court on a number of previous occasions. Where, as here, the offences asked to be taken into consideration are generically quite dissimilar to those as to which an accused has been convicted it is generally inappropriate to accede to such a request, even if the prosecution raises no objection to that course. Logically, it is extremely difficult, if not well nigh impossible, to arrive at logical conclusions as to the bearing which one type of offence ought to have in arriving at an appropriate sentence for a quite different and unrelated course of offending. 9. However, in the instant case, the learned sentencing judge was persuaded by the parties to attempt such an exercise and he did so. The sentence now sought to be impugned must thus be examined having regard to the proper impact of the quite serious course of conduct taken into consideration. 10. In the event he quite properly elected to impose a single, composite sentence in respect of all convictions, pursuant to the provisions of section 4K(4) of the Crimes Act, 1914. He sentenced the appellant to four years imprisonment, with a non parole period of two years. Under the relevant legislation the head sentence attracts remissions which, at maximum, could reduce the head sentence to a net two years and eight months. The non parole period does not attract remissions. Mrs Shaw, of counsel for the appellant, contended that the learned sentencing judge had fallen into error in his characterisation of the nature of the offending and had also taken too stern a view of the degree of culpability of the appellant. She argued that it was incorrect to say -as Mohr J did - that the conduct of the appellant, in relation to the bankruptcy offences, amounts to a course of deliberate fraud and dishonesty. The offences were, she argued, of the nature of so-called absolute offences, not involving a mental element akin to fraud. 11. With all due respect to her, that argument simply cannot withstand scrutiny. Quite apart from the fact that Mohr J obviously employed the expression in its broadest sense, the fact is that the offences do involve a mental element of clear turpitude and dishonesty. The crux of them lies in knowingly concealing from others - by silence - a critical fact which, had it be known, would have alerted the persons concerned to the very real dangers of entrusting money or advancing credit to the bankrupt person. The statute is expressly designed to ensure that third parties are not misled into entering into financial transactions with persons who are already in financial difficulty and are of no substance. What is essentially involved is the notion of dishonesty by omission where there is a duty to disclose so as to protect the otherwise unsuspecting public. 12. The learned sentencing judge was confronted with a classic example of the very evil at which the relevant statutory provisions were aimed. 13. Here was a man who not only was in the throes of his second bankruptcy, but had also had the second period extended due to his prior conduct. His victims in fact all lost their money and, in the case of two of them in particular, that loss resulted in serious personal hardship to them. 14. Moreover, the conduct the subject of the charges not only extended over a lengthy period of time but involved a most reprehensible pattern of dealings. As Mr Chapman, of counsel for the Director of Public Prosecutions pointed out, the accused, not only borrowed money which he had no realistic expectation of repaying (albeit for the purpose of keeping a theatrical enterprise going rather than for his personal direct expenditure) but, over a period of about fourteen months, commenced trading under separate firm names in a series of florist shops, moving from one venue to another as specific businesses were unsuccessful. In so doing he entered into leasing contracts and obtained credit well realising that he had little realistic expectation of meeting his commitments. 15. In short this was the very type of conduct which the statute sets out to proscribe. 16. It is no answer to suggest that a mitigating circumstance was that, in some instances, the victims, in effect, sought the appellant out and offered to lend money. The short answer to that proposition is that, had they known the true situation and the appellant's sorry financial history, it is most unlikely that they would have proceeded to advance any funds. 17. As to certain of the counts of obtaining credit Mrs Shaw sought to derive comfort from the fact that an amendment to the statute, made soon after commission of certain of the offences, greatly increased the prescribed sum beyond which credit could not be obtained without disclosure. She contended that it was really only an accident of history that quite a number of the offences were offences at all and that, somehow, this lessened the appellant's criminality. 18. The obvious riposte to that submission is that the transactions were offences at the time, parties entered into them against the background of the then statutory protection and they suffered loss. The appellant knew that his conduct was unlawful at the time and he pressed on with not one but a series of transactions over a significant period in flagrant defiance of the law. 19. An attempt was also made to play down the seriousness of the 59 offences to be taken into consideration. 20. First, it was said that the Social Security payments received were, in reality, used to attempt to promote the various business ventures and thus to get the appellant back into employment and that this, somehow, lessened the criminality involved. 21. Secondly, it was contended that the benefits were received when the appellant was only partly employed and in receipt of little income. This was not a flagrant, greedy situation of doubling up incomes. 22. These arguments ring distinctly hollow when it is borne in mind that fifty nine separate incidents were involved, the total sum wrongfully procured was about $15,000 and the offences took place between 22 February 1989 and 22 April 1992. They constituted a deliberate, dishonest course of conduct over a long period of time. That conduct did not evidence any brief period of oversight. It is clear that the appellant, calculatingly, elected to utilise the social security system to either assist in financing his business ventures or to supplement his income, thereby defrauding the revenue. 23. This court has, on a number of occasions, stressed the seriousness of such an extensive depredation upon the social security system and pointed out the potentially detrimental effect which it necessarily has on the general community. There is much to be said for the proposition that, had these offences separately been charged, they alone would almost inevitably have given rise to a substantial custodial sentence. 24. Finally Mrs Shaw complained that, even if it could fairly be said that the head sentence imposed was justified in all the circumstances, it had to be borne in mind that, after full remissions, that would reduce to two years and eight months. A fixed non parole period of two years was, she contended, manifestly too great a proportion of the probable net head sentence. It was not warranted as a minimum term to be served. Having regard to the nature of the offending, the antecedents of the appellant and the circumstances generally, a shorter period was proper to promote the appellant's rehabilitation. 25. It is trite to say that the authorities establish the proposition that the purpose of the non parole period is to prescribe a minimum period of imprisonment to be served as assessed by the sentencing judge to be called for by the nature and extent of the offending. That task is not rendered simple because, in relation to offences of the type now under consideration, the head sentence attracts remissions and the non parole period does not. 26. In the instant case the usual complexity is compounded by the need to take proper account of the consideration offences and adequately reflect the impact of them in the single sentence strategy adopted. Furthermore, when one considers questions of rehabilitation in the case of the appellant, it cannot be ignored that he was in breach of an earlier bond to be of good behaviour when he committed the instant offences; and the totality of the offending consisted of a very large number of offences which occurred as a deliberate course of conduct over a long period of time. 27. When all the foregoing features are borne in mind I am unable to perceive how it can fairly be said either that the learned sentencing judge fell into error or that either the head sentence or non parole period were excessive. The totality of the criminality was such that it would have been an affront to the public conscience to extend the degree of leniency now argued for. It is this very type of conduct at which the legislation is aimed and the extent of offending patently called for the imposition of stern measures as a reflection of its gravity. 28. I would dismiss the appeal.

JUDGE2 KING CJ In my opinion this appeal should be dismissed for the reasons given by Justice Olsson.

JUDGE3 DEBELLE J I too would dismiss this appeal for the reasons given by Olsson J.