R v Faithfull
[2004] WASCA 39
•16 MARCH 2004
R -v- FAITHFULL [2004] WASCA 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 39 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:180/2003 | 2 FEBRUARY 2004 | |
| Coram: | MALCOLM CJ WHEELER J MCLURE J | 16/03/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN KIM DAVID FAITHFULL |
Catchwords: | Criminal law and procedure Appeal against sentence Scope and effect of one transaction rule Whether one transaction rule applicable Turns on own facts |
Legislation: | Criminal Code, s 378(7), s 586(1), s 689(3) Sentencing Act 1995 Sentencing Legislation Amendment and Repeal Act 2003 |
Case References: | Attorney General v Tichy (1982) 30 SASR 84 Brown v Lynch (1982) 5 A Crim R 404 Grabovac (1997) 92 A Crim R 258 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Pieri v The Queen [2001] WASCA 357 Postiglione v The Queen (1997) 189 CLR 295 R v Clarke (1996) 2 VR 520 R v White [2002] WASCA 112 Ruane v R (1979) 1 A Crim R 284 Ryan v The Queen (2001) 206 CLR 267 Wong v The Queen (2001) 207 CLR 584 Birch (1993) 69 A Crim R 181 Dillon (1983) 5 Cr App R (S) 439 Dinsdale v The Queen (2000) 202 CLR 321 Everett & Phillips v The Queen (1994) 181 CLR 295 Grubb v The Queen [2002] WASCA 158 Johnson v The Queen [2002] WASCA 102 R v Barbis & Rouse [2003] WASCA 107 R v Black [2002] WASCA 26 R v Osenkowski (1982) 30 SASR 212 Shaw v R (1989) 39 A Crim R 343 The Queen v Carey (1975) 11 SASR 575 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- FAITHFULL [2004] WASCA 39 CORAM : MALCOLM CJ
- WHEELER J
MCLURE J
- Appellant
AND
KIM DAVID FAITHFULL
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Scope and effect of one transaction rule - Whether one transaction rule applicable - Turns on own facts
Legislation:
Criminal Code, s 378(7), s 586(1), s 689(3)
Sentencing Act 1995
Sentencing Legislation Amendment and Repeal Act 2003
Result:
Appeal dismissed
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Ms T D Sweeney
Respondent : Mr P R Eaton
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Slater & Gordon
Case(s) referred to in judgment(s):
Attorney General v Tichy (1982) 30 SASR 84
Brown v Lynch (1982) 5 A Crim R 404
Grabovac (1997) 92 A Crim R 258
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Pieri v The Queen [2001] WASCA 357
Postiglione v The Queen (1997) 189 CLR 295
R v Clarke (1996) 2 VR 520
R v White [2002] WASCA 112
Ruane v R (1979) 1 A Crim R 284
Ryan v The Queen (2001) 206 CLR 267
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
Birch (1993) 69 A Crim R 181
Dillon (1983) 5 Cr App R (S) 439
Dinsdale v The Queen (2000) 202 CLR 321
Everett & Phillips v The Queen (1994) 181 CLR 295
Grubb v The Queen [2002] WASCA 158
Johnson v The Queen [2002] WASCA 102
R v Barbis & Rouse [2003] WASCA 107
(Page 3)
R v Black [2002] WASCA 26
R v Osenkowski (1982) 30 SASR 212
Shaw v R (1989) 39 A Crim R 343
The Queen v Carey (1975) 11 SASR 575
(Page 4)
1 MALCOLM CJ: In my opinion, while I would grant the applicant leave to appeal, I would dismiss the appeal for the reasons to be published by McLure J.
2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of McLure J.
3 I agree with those reasons and I have nothing to add.
McLURE J:
Introduction
4 On 24 October 2003, in the District Court at Perth, the respondent pleaded guilty to two counts of stealing as a servant contrary to s 378(7) and s 586(1) of the Criminal Code.
5 Count 1 was in terms that between 1 April 1998 and 7 August 2003 the respondent, being a servant of the Commonwealth Bank of Australia Ltd ("bank") stole the sum of $18,152,153.85 in money, the property of the bank, and being the amount of a general deficiency. Count 2 was in the same terms as count 1 (including the period of offending) save that the amount stolen was $843,059.10.
6 The maximum penalty for stealing as a servant is 10 years. Section 586 of the Code permits a person to be charged with a single count for the amount of a general deficiency notwithstanding the general deficiency is made up of a number of specific sums of money, the taking of which extended over time.
7 On 29 October 2003, the respondent was sentenced to a term of 5 years' imprisonment in respect of count 1 and 3 years' imprisonment in respect of count 2, the two terms to be served concurrently. The total sentence imposed on the respondent was 5 years' imprisonment backdated to 24 October 2003. Pursuant to the new sentencing regime, the respondent will be required to serve three years of his sentence before becoming eligible for parole.
8 The Crown contends that the learned sentencing Judge erred in making the sentences on count 1 and 2 concurrent.
(Page 5)
Background
9 The respondent was the Manager of the Karratha branch of the bank at the time of the offences. He explained his modus operandi in a videotaped interview with police. He said that he established an online account with his bookmaker some six months or so after being moved to the Karratha branch of the bank. The bookmaker had an account with the bank which enabled the respondent to transfer money from accounts with the bank to his betting account with the bookmaker. In order to place bets, the respondent's account with his bookmaker had to be in funds. After opening his betting account, the respondent misappropriated funds from bank accounts and transferred them to his betting account, commencing with sums in the order of $1,000. His original method was to transfer funds from bank clients' matured investments in commercial bills to his betting account. In order to hide missing amounts in the bank's commercial bills suspense account (which was subject to audit by him and the bank's area office) the respondent would transfer sums from the bank's foreign currency suspense account into its commercial bills suspense account.
10 The respondent had a second betting account in New South Wales which he funded by way of his credit account which he replenished by stealing bank funds. He estimated that he transferred a few hundred thousand dollars into his Mastercard account. In addition, the respondent took what he described as small amounts of cash, estimated at $4,000 or $5,000.
11 The respondent was gambling weekly and in the latter stages of his offending behaviour was replenishing his betting account from bank funds on a weekly or fortnightly basis. By the end of 2002 the transfers from the bank to replenish his betting account were in large sums varying between $200,000 to $380,000.
12 The Crown could have charged the respondent with a great number of individual thefts each representing a separate decision on the respondent's part to replenish his betting account or his Mastercard account or to take cash. However, to do so would have delayed the sentencing process because at the relevant time the bank was not in a position to trace the individual thefts. By charging the respondent with two counts, the Court's sentencing discretion is limited to a maximum of 20 years.
(Page 6)
13 The respondent had no prior convictions. He used all the money stolen from the bank to fund his gambling activities which took on a particularly frantic aspect after November 2002. In a psychiatric report provided to the Court the respondent is described as a pathological gambler and as having a major depressive disorder with fluctuating symptoms during his period of offending. In August 2003 he voluntarily informed the bank of his offending. Since that time the respondent has assisted the bank with its investigation into the individual transactions and in attempting to recover the stolen money.
Sentencing remarks
14 The sentencing Judge's approach was in accord with recent legislative reforms that require him to impose a term that is two thirds of the fixed term that he would have imposed under the law as it stood prior to the operation of the Sentencing Legislation Amendment and Repeal Act 2003.
15 On count 1, the sentencing Judge adopted a starting point of 10 years' imprisonment, being the maximum penalty, from which he deducted an allowance for the respondent's co-operation and early plea which had the effect of reducing the term to 7½ years. That is the term he would have imposed but for the Sentencing Act reforms. As a result of the reforms the Judge was required to reduce that term by one third, to a period of 5 years' imprisonment.
16 The sentencing Judge referred to count 2 as involving a much lesser sum of money and "one that is more usually dealt with in these type of frauds and which I have dealt with on many occasions". He identified a starting point of 6 years' imprisonment which he reduced to 4½ years to allow for the respondent's co-operation and early plea of guilty. In accordance with the reforms he reduced that by one third which further reduced the term to 3 years' imprisonment.
17 After hearing argument on the applicability of what is called the "one transaction rule" he stated:
"I have come to the conclusion, in short, that the law obliges me to make the terms concurrent."
Role of appellate court
18 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665.
(Page 7)
- Subject to one qualification, it is entitled to intervene if a material error of fact or law is discerned in a sentencing Judge's reasoning. The qualification is that on an appeal against sentence, an appellate court can only intervene if it thinks a different sentence should have been passed (s 689(3) of the Criminal Code).
19 Further, if the court decides to re-sentence an offender on a Crown appeal, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance (R v Clarke (1996) 2 VR 520 at 522 per Charles JA with whom Winneke P and Hayne JA agreed).
20 The Crown case is, in substance, that the sentencing Judge erred in law in regarding himself as bound to make the terms of imprisonment concurrent and that he was wrong to do so because an effective head sentence of 5 years did not adequately reflect the criminality of the respondent's conduct having regard to the amount stolen, the period of the offending behaviour (some 5½ years), the gross breach of trust involved and the enormous financial detriment to the bank and its shareholders.
Approach to sentencing
21 Before addressing the one transaction rule it is appropriate to see it in the broader context of the proper approach to sentencing as identified by the High Court in Pearce v The Queen (1998) 194 CLR 610. In their joint judgment, McHugh, Hayne and Callinan JJ said (at 624) that a Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and only then consider questions of cumulation or concurrence as well as questions of totality. Further, if a single act is an element of each offence charged, the offender should not be doubly punished for that act in the penalty for each offence.
22 In Pearce an offender was convicted of two charges with an overlapping element in respect of a single incident or episode. The offender pleaded guilty to (among other things) maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him. Two sentences of imprisonment imposed for each offence were ordered to be served concurrently. Although the elements of the offences overlapped they were not identical. The malicious infliction of grievous bodily harm required proof of specific intent to do grievous bodily harm whereas the breaking and entering offence did not.
(Page 8)
23 Of interest in the context of the one transaction rule is that the majority, after stating that the individual sentences imposed were flawed because they doubly punished the offender for a single act, namely, the infliction of grievous bodily harm, continued:
"Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count."
24 The majority in Pearce also referred to the totality principle. That principle of sentencing requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307 – 308 per McHugh J. The totality principle applies where accumulation or aggregation is prima facie appropriate. However, where concurrent sentences are prima facie appropriate, it is also necessary for the sentencing Judge to consider whether concurrent sentences provide a just and appropriate measure of the total criminality involved.
The one transaction rule
25 The state of the law in this area is not entirely satisfactory. The title of the rule belies its scope about which there is uncertainty in any event. Further, it has proven difficult to formulate a statement of the rule that can be consistently and transparently applied.
26 The rule is variously described as the "one transaction" or "continuing episode" rule. It is said to apply when a number of offences "arise out of substantially the same act, circumstances or series of occurrences" (Brown v Lynch (1982) 5 A Crim R 404, 407) or when there is "one multi-faceted course of criminal conduct" (Attorney General v Tichy (1982) 30 SASR 84, 93) or if they are considered to be "manifestations of the one criminal enterprise, transaction or episode" (Pearce v The Queen (supra) per Kirby J at 650).
27 D A Thomas, "Principles of Sentencing" 2nd ed (at 53) identifies the rationale for the rule to be that all the offences taken together constitute a "single invasion of the same legally protected interest". I am not quite sure what that means or that it explains the range of conduct found to have fallen within the one transaction rule. As observed by Fox and Freiberg, "Sentencing State and Federal Law in Victoria" 2nd ed (at 715), for every
(Page 9)
- case that can be cited to illustrate the one transaction rule, another can be found that provides an exception, or effectively negates it.
28 However, on one matter there is no uncertainty. It is not a principle of law or sentencing that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode: R v White [2002] WASCA 112; Ruane v R (1979) 1 A Crim R 284. It is a general rule, or what has been described as a "good working rule" (Ruane) that when a number of offences arise out of the one transaction or continuing episode any terms of imprisonment are to be made concurrent. However, a sentencing Judge must in each case consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: White (supra). If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially concurrent rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63. In my assessment, this approach to the one transaction rule is consistent with the statements of principle in Pearce v The Queen (supra). Although the offences in that case were quite clearly part of one transaction or a continuing episode for the purposes of the one transaction rule, wholly concurrent terms did (or may) not reflect the total criminality of the conduct.
Application of principles
29 Three questions arise in this appeal. Firstly, whether the sentencing Judge erred in concluding that he was required to impose concurrent terms of imprisonment; secondly, whether the one transaction rule applies and concurrent sentences were appropriate and thirdly, whether a different sentence should have been passed.
30 I am satisfied that the sentencing Judge acted on a wrong principle of law in concluding that his characterisation of the offences as part of one transaction mandated concurrent sentences.
31 The next question is whether the one transaction rule applies. If appropriate to focus primarily on the form of the charges, the answer would in my view be in the affirmative. The two counts entirely overlap in time, in type of conduct, involve the same victim and the same modus operandi utilising an established system. However, it would be an error to focus primarily on form rather than the substance of the conduct the subject of the charges. Each charge involved numerous individual thefts which increases the moral culpability of the conduct. I would characterise that as different invasions of the same legally protected
(Page 10)
- interest rather than a single invasion. Even so, systematic fraud over a long period (two and a half years) on the same victims has been characterised as a single criminal enterprise falling within the one transaction rule: Grabovac (1997) 92 A Crim R 258. Ormiston JA in that case explained why (at 279):
" ... in cases of this kind there is a tendency to treat similar offences committed on the same victims as part of a single criminal enterprise exemplified by the particular counts charged. Where there are a number of armed robberies committed in the course of an afternoon it is not uncommon to describe those as part of such a single enterprise and, where an offender has devised a scheme to defraud a bank or the government, there is likewise a tendency to treat those offences as part of an enterprise, doubtless on the basis that each offence requires but the mechanical effectuating of a preconceived plan."
33 I am not persuaded that the respondent's conduct was part of a single enterprise or that each act of theft involved the mechanical implementation of a preconceived plan. However, even if it is open to characterise the conduct as a single enterprise within the one transaction rule it does not follow that the sentences should have been made concurrent.
34 Applying the Pearce principles and using the "intuitive synthesis" rather than the two-step approach (in accordance with Wong v The Queen (2001) 207 CLR 584) I would have imposed a lesser head sentence on each count than the sentencing Judge having regard to the mitigating factors of the respondent's fast track plea of guilty (which itself attracts a discount of up to 35% in appropriate cases), his initiative in confessing to and assisting with the identification of the nature and extent of his conduct and his co-operation with authorities. The voluntary disclosure of previously unknown offences which may remain undetected but for the offender's co-operation is a mitigating factor: Ryan v The Queen (2001) 206 CLR 267 at 312. I have no reservations as to the genuineness of the respondent's feelings of guilt and remorse for his conduct. His prospects
(Page 11)
- of rehabilitation are good. The offending conduct was serious and that is reflected in his sentence of immediate imprisonment.
35 It is apparent from the sentencing Judge's two-step analysis that he accorded less weight to mitigating factors than would ordinarily be expected or is appropriate. I infer he did so in order to reflect the seriousness of the total conduct the subject of the two charges having regard to his conclusion that he was required to make the sentences concurrent. The proper course would be to give due weight to the mitigating factors, reduce the sentence on each count and make them partially cumulative to reflect the total criminality of the conduct. However, I am not persuaded that a different total sentence should have been imposed or, at any rate, not sufficiently different to satisfy the authorities on upholding Crown appeals against sentence. For these reasons I would dismiss the appeal.
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