R v Halls

[2002] NSWCCA 55

Reported Decision: (2002) 127 A Crim R 209

New South Wales

Court of Criminal Appeal

CITATION:	R v Colleen Halls and Francis Halls [2002] NSWCCA 55
FILE NUMBER(S):	CCA 6077/01
HEARING DATE(S):	6 March 2002
JUDGMENT DATE:	6 March 2002
PARTIES :	Regina (Respondent) Colleen Halls and Francis Halls (Applicants)
JUDGMENT OF:	Stein JA at 30; O'Keefe J at 29; Buddin J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0745; 01/11/0754
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	MG Allnutt (Commonwealth Crown) H Dhanji (Applicants)
SOLICITORS:	Commonwealth Director of Public Prosecutions Richard A Licardy & Co (Applicants)
CATCHWORDS:	Appeal - severity - obtain credit whilst undischarged bankrupt - obtain credit by fraud - need to quantify adjustment required by s 16G of the Commonwealth Crimes Act - delay - Sentences manifestly excessive - parity
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) Commonwealth Crimes Act
CASES CITED:	DPP v El Karhani (1990) 21 NSWLR 370 Lowe v The Queen (1984) 154 CLR 606 R v PPB [1999] NSWCCA 360 R v Smith & Jones [2001] NSWCCA 279 R v Todd (1982) 2 NSWLR 517
DECISION:	Leave to appeal is granted. In the case of Colleen Halls the appeal is dismissed. In the case of Francis Halls the appeal is allowed. The sentence is quashed and in lieu thereof sentenced to 12 months imprisonment to date from 26 October 2001. A recognisance release order commencing on that date and expiring on 25 June 2002 is made.

60777/01

STEIN JA
O’KEEFE J
BUDDIN J

Wednesday 6 March 2002

REGINA v COLLEEN HALLS and FRANCIS HALLS

Judgment

1 BUDDIN J: The applicants, Colleen Halls and her husband Francis Terence Halls, adhered to pleas of guilty originally entered in the Local Court, when they appeared for sentence in the District Court.

2 Colleen Halls pleaded guilty in all to nine separate offences under the Bankruptcy Act 1966 (Cth). Three of the charges were brought pursuant to s 269(1)(ab), and each alleged that she had entered into a hire-purchase agreement with a person for goods worth in excess of $3000 without informing that person that she was an undischarged bankrupt. There were two charges pursuant to s 269(1)(a) of the Act, of obtaining credit to the extent of $3,000 or more from a person without informing that person that she was an undischarged bankrupt. There were also four charges, pursuant to s 265(5) of the Act, that she had obtained credit by fraud. Francis Hall pleaded guilty to one offence pursuant to s 269(1)(ab) of the Act of entering a hire-purchase agreement with a person without informing that person that he was an undischarged bankrupt. Mr Hall committed this offence together with his wife. It was, as I have said, one of three such offences committed by his wife.

3 The maximum penalty applicable to each of the offences is a term of imprisonment not exceeding 3 years and a fine not exceeding $19,800 or both.

4 On each of the charges (totalling five in all) brought pursuant to s 269(1)(a) and s 269(1)(ab) respectively Judge Shadbolt sentenced Colleen Halls to 15 months imprisonment to date from the date of sentence which was 26 October 2001. His Honour made a recognisance release order commencing on that date and expiring on 25 August 2002. In respect of the other four charges his Honour imposed fixed terms of nine months’ imprisonment which were concurrent not only with each other but with the earlier five matters to which I have referred. His Honour regarded these latter four offences as being the fraudulent means by which the earlier five offences were effected. For the one offence to which he pleaded guilty Francis Halls was similarly sentenced to 15 months imprisonment to date from 26 October 2001 with a recognisance release order commencing on the same date and expiring on 25 August 2002.

5 In seeking leave to appeal, each applicant relies upon the first three grounds of appeal to which I will shortly refer. Mr Halls also relies upon two additional grounds which are not part of the application for leave made on behalf of his wife.

6 The background facts are set out in the remarks on sentence of Judge Shadbolt. In the circumstances it is convenient to rely upon his Honour’s summary of the evidence:

The circumstances giving rise to these offences were that on 18 July 1995, Mr Justice Hill of the Federal Court made sequestration orders over the estates of Colleen May Halls and Terence Halls. This court is not aware what time on that day the sequestration orders were made. It does appear that the prisoners were not present, but on that same day, the prisoner Colleen Halls made application at the William Street premises of BMW Australia Finance to purchase a 1991 BMW sedan for $38,000. An offer was made and in August, accepted. The total amount to be repaid was $52,242.40. Neither she nor her husband informed the finance company that they were bankrupt, and had been since their acts of bankruptcy some six months before. Eventually she defaulted on repayments and the car was repossessed and sold leaving a shortfall of $13,072. These events gave rise to a charge under s 269(1)(ab) which makes it unlawful to enter into a hire purchase agreement for more than $3000 without informing the lender of the current bankruptcy.
On 17 February 1997, some six months before she defaulted on the first BMW, she entered into an agreement in her maiden name with Esanda Finance for a second BMW valued at $45,000. This time the total amount to be repaid was $55,492.20. It goes without saying that she did not inform Esanda that she is an undischarged bankrupt. Three months later, in May 1997, she was in default on the repayments and the car was repossessed. She attempted to pay $6645.87 by the use of valueless cheques not the subject of any charge. The car was sold for $16,100 and $34,903.46 is still owing. This activity gave rise to another charge under s 269(1)(ab).
On about 16 April 1997 she again contacted Esanda, this time to buy a 1993 Toyota four wheel drive vehicle. This was, her husband stated before me in evidence, to be a present for her son who unfortunately is addicted to heroin. The stated aim of this gift was to make him feel better about himself. On this occasion she gave her name as Colleen May Street. She signed a hire purchase agreement on 18 April. In July 1997 she defaulted, and again she attempted to buy her way out with a valueless cheque. The sum of $23,564 remains outstanding on this vehicle. This gave rise to another charge under s 269(1)(ab).
In 1996 she obtained a Visacard from Citibank with $6000 worth of credit. Again she failed to inform the bank that she was an undischarged bankrupt. The card was cancelled but not before she had obtained credit in the sum of $8819.73 and an attempt to make payment by way of valueless cheques had been made. This represents the fourth count under s 269(1a), obtaining credit for more than $3000 without informing the lender that he or she is an undischarged bankrupt.
Now without a credit card she sought a personal loan from St George Bank on 17 December 1996, and on Christmas Eve of that year $10,000 was approved. She had not of course informed the bank that she was an undischarged bankrupt. To facilitate her drawing the loan, the bank paid it in to a St George Freedom Account in her maiden name from which the bank was to draw the monthly repayments, but when on 24 January 1997 the first payment fell due, the account had been cleaned out. Again valueless cheques were proffered and $9668.46 remains unpaid. This represents the fifth count under s 269(1a). The 265, subs (5) subs (b) offences arise from the statements of her financial affairs which she made to the various financial institutions, which statements were fraudulent. All of them overstated her income and assets and in false statements giving rise to the 7th, 8th and 9th counts, she fraudulently described herself as single.
Francis Terence Halls, husband of Colleen Halls, was a co-applicant on 18 July 1995 for finance for the BMW. In all, credit in the sum of $182,000 was obtained by both prisoners, of which $90,000 remains unpaid.

The sentencing judge erred in failing to properly adjust the sentences in accordance with s 16G of the Crimes Act 1914 .

7 Section 16G is in the following terms:

If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.

8 It is acknowledged by the applicant that the sentencing judge made specific reference to s 16G. Indeed his Honour said that he had “considered 16(G)(sic) in setting the sentences”.

9 Rather what is submitted is that “there was no acknowledgement that an adjustment under s 16G is mandatory in a State where there are no remissions. No reference was made as to whether an adjustment was in fact made, or to the nature and extent of any adjustment”.

10 The applicant further submits, by analogy with what this Court has said in the context of cases involving a discount for assistance to the authorities, that the sentencing judge should have quantified the adjustment to be made for the s 16G factor.

11 It is now more than a decade since this Court handed down its decision in DPP v El Karhani (1990) 21 NSWLR 370. This Court there said that what the section required was the exercise of a “general discretion to make an adjustment” (at 384). The court went on to say however that “[t]his is not to say that a pattern may not emerge from many cases over time….[I]t is not inappropriate to take into account that throughout Australia the reduction of custodial sentences for remissions and the like is about one-third of the sentence. Again, this is not a fixed ratio. But given the individualised ‘adjustment’ called for by S 16G, it is an appropriate starting point” (at 385).

12 Ever since El Karhani, sentencing judges have appreciated that the s 16G factor would require an “adjustment” in the order of about one-third of the otherwise appropriate sentence to accommodate the fact that remissions are not available in this State. Judge Shadbolt is a very experienced judge and is, as this Court is well aware, very conversant with the operation of the Commonwealth Crimes Act. In the circumstances no more elaboration upon the subject by his Honour was required. It can readily be inferred in any event that his Honour’s reference to s16G was to indicate that not only had he considered the operation of s 16G but that he had given effect to it.

13 It is beyond contention that there are strong policy considerations which underpin the need to quantify discounts for assistance to authorities. See R v PPB [1999] NSWCCA 360; R v Smith and Jones [2001] NSWCCA 279. It is also important that there be transparency in the sentencing process. In addition there are pragmatic considerations which require that a sentencing court should quantify any such discount. These include the need to identify with precision the extent of any discount for assistance which is promised in the future so that the Crown can seek to review the sentence in the event that such a promise is not fulfilled. Indeed s 21E of the Crimes Act (Cth) requires that a court, in such circumstances, must “state the sentence that would have been imposed but for that reduction”. No similar requirement appears in s 16G. This reinforces the view at which I have arrived.

14 Moreover the extent of any discount extended on account of assistance to the authorities will turn upon the nature, extent and effectiveness of the assistance offered and/or provided. The appropriate discount will of course vary from case to case and the extent of the variation may well be very substantial. Although there remains a discretionary element to the adjustment required by s 16G, there is in my view no similar basis for there to be any marked disparity from one case to the next on account of this issue.

15 The applicant also submitted that his Honour erred in referring to the s 16G factor before considering the range appropriate for offences of this kind rather than at the end of the sentencing process. It is not clear in my view that that is a fair reading of how his Honour approached this issue. In any event it may be observed that no authority is advanced in support of the proposition that there is an appropriate point in the sentencing process at which the s 16G adjustment must be made. Neither principle nor logic, as it appears to me, require any particular approach to be taken. In my view this ground of appeal should be rejected.

The learned sentencing judge erred in failing to take into account delay

16 The evidence discloses that some six years had elapsed between the date on which the applicant, Francis Terence Halls, committed his offence and the date upon which he was sentenced. The period which had elapsed was somewhat shorter in the case of his wife it being in the order of 4½ years. It is submitted that delay of that order should have attracted a considerable measure of leniency from the sentencing judge.

17 The relevant principles are not in doubt. In R v Todd (1982) 2 NSWLR 517, Street CJ said:

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

The principles enunciated in Todd have been applied in a variety of situations.

18 There was evidence before the sentencing judge in the form of a chronology which set out the relevant steps that had been taken by the relevant investigative agency and prosecuting authorities respectively. Indeed his Honour had specifically requested that it be prepared in order that he could better understand the progress of the matter. The sentencing judge explicitly recognised that in appropriate circumstances delay could be taken into consideration as a factor enabling leniency to be extended to an offender. His Honour referred to a number of circumstances which may justify such a course being taken. In particular he referred to a situation in which delay was occasioned “by inefficient investigation or dilatory prosecution”. However his Honour, having considered the material before him, concluded that there was no delay in the investigation or the prosecution of the matter of a kind that warranted any particular consideration in the present case. That finding of fact was well open to his Honour and in my view, on an application of the well-established principles of appellate review, it ought not to be disturbed in this Court.

19 The applicants placed emphasis upon the fact that the sentencing judge said at one stage “that such delay there might have been was occasioned by the prisoners themselves”. Read in its proper context, in my view his Honour was saying no more than that it was necessary for investigators, given that the applicants were not going to facilitate their task, to take all steps necessary to properly complete their inquiries. That context included evidence of an apparently acrimonious relationship between the bankruptcy authorities and the applicants (and their extended family) during the relevant period. It was necessary in those circumstances for the investigation to be meticulous. The possibility, at any stage of the process, of collateral litigation could not be discounted. It would also appear that other conduct of a similar nature on the part of the applicants during the relevant period needed to be considered by the authorities.

20 Moreover, as the sentencing judge pointed out, the applicants had been warned by letter in 1998 that investigations were continuing in respect of their activities. The following year they had become aware of search warrants being executed in respect of premises with which they were connected. More importantly it could not be said in the light of evidence about other criminal conduct on the part of the applicants that they had used the time between the commission of the offences and the time of sentence to effectively rehabilitate themselves. In all those circumstances I am not persuaded that it has been demonstrated that his Honour fell into error in considering this aspect of the matter. Even if contrary to the views which I have expressed, error had been demonstrated I am not of the opinion that it would warrant the intervention of this Court.

The sentencing judge erred in failing to take into account the fact that the applicants had no prior convictions at the time of the commission of the offences

21 It is submitted on behalf of the applicants that the sentencing judge’s failure to advert to this matter is indicative of error.

22 The difficulty which confronts the applicants in respect of this aspect of the case is that the sentencing judge said that he had taken into consideration a number of matters which, pursuant to s 16A(2) of the Commonwealth Crimes Act, the court must take into account insofar as they are relevant and known to the court. Included within the list of matters to which his Honour specifically referred was subparagraph (m) which refers to “the character, antecedents, cultural background, age, means and physical or mental condition of the person” (emphasis added). Upon an overall reading of the remarks on sentence I am not persuaded that his Honour fell into error of the type which is asserted.

23 In any event it is common ground that in the period between the commission of the offences which are the subject of these applications and the imposition of sentence in respect of them, the applicants were dealt with in respect of a number of other offences of a similar nature. Indeed some of those offences were committed before the offences the subject of this application. Moreover in extending leniency to the applicants in relation to one of those sets of offences, Judge Rummery specifically took into account in their favour the absence of any prior convictions. It is axiomatic that an offender cannot continue to call in aid this ground for leniency on an ongoing basis. This ground of Appeal should be rejected.

The sentence imposed on the applicant, Francis Halls, is manifestly excessive

24 This is the first of the two grounds upon which Francis Halls alone relies. The sentencing judge was presented by the Crown with a number of comparable cases which disclosed something of a range for offences of this kind. It would appear that the sentence which was imposed upon this applicant fell comfortably within that range. The sentencing judge characterised the offence as being serious, as it undoubtedly was. His Honour placed emphasis upon the fact that offences created by the Bankruptcy Act are designed to protect credit providers. His Honour said that the commission of the various offences “represent a total and utter disregard of the Bankruptcy Act and the requirements it places on bankruptcy”. A little later his Honour said that it is necessary to “deter by sentences of imprisonment those who fraudulently obtain credit whilst bankrupt. Without clear statements from these courts the Bankruptcy Act would be set at nought, to the detriment of a great number of debtors and creditors alike”. I endorse the sentiments expressed by the sentencing judge. Given all the circumstances of the present case, I am far from persuaded that the sentence imposed upon the applicant was manifestly excessive.

The applicant, Francis Halls, has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon him and that imposed upon his co-offender

25 The submission which is made on behalf of the applicant, Francis Halls is that rather than receive the same sentence as his wife did, he should have received a lesser sentence given that he was convicted of only one offence whereas his wife was a co-offender in respect of that offence as well as having committed eight other offences. In other words it is submitted that he entertains, in the result, a justifiable sense of grievance in relation to the sentence imposed upon him. See Lowe v The Queen (1984) 154 CLR 606.

26 Judge Shadbolt observed that although Mr Halls only committed one offence “he probably in all cases benefited” from the commission of the offences by his wife. That may well be an available inference from the material. Nevertheless I am satisfied that the objective criminality on the part of Mrs Hall was on any view of the matter rather more significant than that displayed by her husband. Given that there was no other basis for distinguishing their respective cases in relation to either their conduct or antecedents, it is my view that this is a case in which the principles enunciated in Lowe v The Queen have application. As Brennan J observed in that case “the imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust” (at 617). Not surprisingly counsel for the respondent all but conceded that this ground of Appeal should succeed. Accordingly in my view it is appropriate for a modest adjustment to be made to the sentence imposed upon Francis Hall.

27 The orders I would propose are as follows:

1 In the case of each applicant leave to appeal is granted.

2 In the case of Colleen Halls the appeal is dismissed.

3 In the case of Francis Halls the appeal is allowed. The sentence is quashed and in lieu thereof he is sentenced to 12 months imprisonment to date from 26 October 2001. A recognisance release order commencing on that date and expiring on 25 June 2002 is made.

28 STEIN JA: I agree with Buddin J’s judgment and the orders which he proposes.

29 O’KEEFE J: I agree.

30 STEIN JA: Accordingly, the orders of the Court will be as Buddin J just announced.

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