R v Hanslow
[2004] NSWCCA 163
•21 May 2004
CITATION: R v Hanslow [2004] NSWCCA 163 HEARING DATE(S): 11/05/2004 JUDGMENT DATE:
21 May 2004JUDGMENT OF: Dunford J at 1; Adams J at 2; Howie J at 3 DECISION: Leave to appeal is granted but appeal is dismissed. CATCHWORDS: Criminal Law and Procedure - Sentencing - Discount for plea of guilty - relevance of matters on Form 1 to total criminality of offences for which sentence was passed. LEGISLATION CITED: Justices Act 1902 - s 51A (now repealed)
Crimes Act 1900 - ss 178BA, 178BB, 188, 300(1), 302
Criminal Procedure Act 1986CASES CITED: R v Doan (2000 50 NSWLR 115
R v Scott [2003] NSWCCA 286
R v Newman [2004] NSWCCA 113
R v Ellis (1986) 6 NSWLR 603
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Fraser [2000] NSWCCA 97
R v Montesinos [2002] NSWCCA 470PARTIES :
Regina v Renee Catherine Hanslow FILE NUMBER(S): CCA 60504/03 COUNSEL: B. Knox SC - Crown
R. Burgess - ApplicantSOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0145 LOWER COURT
JUDICIAL OFFICER :Freeman DCJ
60504/03
FRIDAY 21 MAY 2004DUNFORD J
ADAMS J
HOWIE J
1 DUNFORD J: I agree with Howie J.
2 ADAMS J: I agree with the judgment of Howie J.
3 HOWIE J: This is an application for leave to appeal against the sentence imposed by Judge Freeman in the District Court in respect of a large number of offences of dishonesty. The applicant had pleaded guilty before a magistrate under, the now repealed, s 51A of the Justices Act to 45 offences under three different provisions of the Crimes Act. She was committed to the District Court for sentence on those matters. She adhered to her pleas before Judge Freeman and asked him to take into account, when sentencing her in respect of one group of offences, 60 matters on a form 1 under the provisions of the Criminal Procedure Act.
4 The offences for which the applicant was sentenced were as follows:
(i) six charges of dishonestly obtaining money by deception contrary to s 178BA of the Crimes Act. This is an offence that carries a maximum penalty of imprisonment for 10 years.
(ii) ten offences of making a false statement to obtain a financial advantage contrary to s 178BB of the Crimes Act. This is an offence that carries a maximum penalty of imprisonment for 5 years.
(iii) three charges of disposing stolen property contrary to s 188 of the Crimes Act . This is an offence that carries a maximum penalty of imprisonment for 10 years.
(v) One further count of making a false instrument contrary to s 300(1) of the Crimes Act.(iv) 25 offences of making a false instrument contrary to s 300(1) of the Crimes Act . This is an offence that carries a maximum penalty of imprisonment for 10 years.
5 The form 1 contained the following matters:
(a) three charges of make false statement with intent to obtain money contrary to s 178BA of the Crimes Act .
(b) 34 charges of using a false instrument contrary to s 300(2) of the Crimes Act .
(c) three charges of goods in custody.
(d) eight charges of making a false instrument contrary to s 300(1) of the Crimes Act .
(f) 1 charge of having a false instrument contrary to s 302 of the Crimes Act .(e) eleven charges of obtaining money by deception contrary to s 178BA of the Crimes Act.
6 Judge Freeman sentenced the applicant as follows:
(i) Imprisonment for a fixed term of 18 months to date from 10 February 2003 and to expire on 9 August 2004.
(ii) Imprisonment for a fixed term of 18 months to date from 17 June 2003 and to expire on 16 December 2004.
(iii) Imprisonment for a fixed term of 6 months to date from 10 February 2003 and to expire on 9 August 2003.
(v) Imprisonment for 3½ years to commence on 17 June 2003 with a non-parole period of 2 years to expire on 16 June 2005.(iv) Imprisonment for 3 years to commence on 10 August 2003 with a non-parole period of 18 months to expire on 9 February 2005.
This is an effective sentence of 3 years 10 months and 6 days from 10 February 2003, with an overall non-parole period of 2 years 4 months and 6 days. The applicant will be eligible for release to parole on 16 June 2005.
7 The offences were committed between 25 July and 30 December 2002. They arose from, what Judge Freeman described as a “prolonged, repeated and sophisticated, well planned series of frauds”. It is unnecessary for the purpose of the present application to detail the facts giving rise to the 105 charges laid against the applicant but they involved the fraudulent obtaining of money from a variety of victims including the Hospital Contribution Fund, banks, mobile phone companies, retailers and Medicare. The applicant by the use of a number of fraudulent identities obtained financial benefits of different types.
8 One series of offences involved the applicant obtaining a line of credit from a financial company by supporting her application for that credit with false pay sheets and false details of her address. By using that line of credit, the applicant obtained goods including a video camera and a stereo system.
9 Another series of offences related to frauds upon Medicare by the applicant presenting in the name of her mother false doctor’s invoices or by duplicating doctor’s receipt forms using a computer at one of two local government libraries. The applicant was able to perpetuate these frauds because she was able to harness her experience as a registered nurse to obtain the wherewithal to manipulate the Medicare system.
10 Another series of offences related to the disposal of mobile telephones that she had fraudulently obtained by the use of forged documents and which she either pawned or sold.
11 There were offences relating to her obtaining under false identification details a shopping card from a retail chain giving her a line of credit that she used to obtain Christmas presents.
12 There were a number of offences relating to fraudulent claims for payments allegedly made for medical and dental treatment. These receipts have been manufactured at one of the library computers and with the aid of a business stamp kit that she had purchased for the purpose. These claims were made in her own name, that of her daughter or her mother, whose membership of the Hospital Contributions Fund the applicant used. The cheques that she so obtained were cashed through her infant daughter’s bank account.
13 Another series of offences related to her obtaining a bank loan of $5,500 under a false identity supported by fraudulent documents. There was also a charge relating to the use of her key card linked to that loan.
14 There were a series of charges relating to another bank account that she had obtained fraudulently using a false identity and forged documents. She also obtained a key card in relation to this loan and fraudulently used it to obtain cash.
15 The charges on the form 1 relate to fraudulent activity of the same nature as that contained in the charges for which she was to be sentenced.
16 As a result of this fraudulent conduct over a period of almost 6 months the applicant received approximately $16,000. None of it is recoverable. The applicant gave evidence that she was at the time of the commission of the offences using amphetamine at a cost of $500 a day. She used the proceeds of her frauds to support her addiction, in gambling on poker machines and for living expenses including gifts for the children of her de-facto partner. The applicant told a probation officer that “she felt some thrill in achieving success in her criminal activity and this spurred her on to commit further crimes”.
17 The applicant was born on 8 June 1978. She has no relevant criminal record. She has a three-year-old child from an earlier relationship and the applicant’s mother is presently caring for the child. The applicant was receiving benefits as a sole parent before her arrest. She was at the time of the offences in a de-facto relationship with a man who was also addicted to amphetamine and to whom she intends to return when released. The applicant breached a condition of her bail that she not reside with this person and, as a result, bail was refused from 10 February 2003.
18 Dr Westmore prepared a report on the applicant for the purposes of the sentencing proceedings. The applicant told him that she had been using amphetamines for the last seven years on a recreational basis but her habit had increased to become a problem by the time she committed the offences. She told the psychiatrist that she did not believe she any longer had a drug problem after attending for treatment while in custody. However, she had sought to be enrolled in a community-based rehabilitation centre. Her de-facto partner was also now drug free. She believed that as a result of the offences she would be de-registered by the Nurses Registration Board for some period and hoped to attend university after her release.
19 The applicant claims to have been assaulted by another prison inmate and, as a result, was placed into protection. She said in evidence before the sentencing judge that she was subject to “lock down” for 18 hours a day, had no outside exercise and only limited resources in the way of counselling or welfare assistance. She had been accepted for the mother and child programme in the gaol but was ineligible while she was on protection.
20 The first ground of appeal was that his Honour failed to take into account that the offences could have been determined in the Local Court. Although the fact that the offences could have been dealt with by a magistrate is a matter that may be relevant, it is not always the case that a lost chance to be dealt with summarily will be a matter of mitigation: R v Doan (2000) 50 NSWLR 115 per Grove J at [42].
21 The applicant’s criminality was, in my opinion, too serious to be dealt with in the Local Court even though the magistrate may technically have had jurisdiction to deal with the offences; R v Royal [2003] NSWCCA 275 per Greg James J at [38]. It is not just the amount of money obtained by the criminal activity that determines whether the matters should be dealt with in the Local Court or what the appropriate sentence should be. The nature and extent of the offences perpetrated may indicate that summary jurisdiction, where the magistrate has a limited power to sentence effectively, is inappropriate. This was a case properly before the District Court and no mitigation of the sentence was warranted for that reason.
22 Ms Burgess, who appeared for the applicant, sought to rely upon the fact that the applicant’s partner was dealt with in the Local Court for offences of a similar nature to those for which the applicant was sentenced. But I do not see the relevance of that fact having regard to the very limited and less serious extent of his criminality when compared with that of the applicant.
23 The second ground of appeal contends that his Honour failed to give an adequate discount for the applicant’s plea and assistance to investigating police. His Honour found that the applicant had no contrition for her criminal activity and that she had a tendency to minimise her wrongdoing. His Honour said of the plea of guilty:
Her plea indicating a desire to facilitate the process of justice is, having regard to the sheer logistics of running a trial with so many charges, of significant utilitarian value. I have allowed a discount of 20 per cent. Her co-operation in the ERISP and in permitting a voluntary search of her premises, together with the way in which she volunteered information, such as the location of the computers used, has contributed to this level of discount.
24 It was submitted that the plea of guilty, coming at the earliest opportunity and before the magistrate, should have alone resulted in a discount of 25 per cent. This is an argument that converts a guideline into a rule. It has been said repeatedly by this Court that the discount for the plea is a discretionary matter and that a particular offender has no entitlement to any particular discount: R v Scott [2003] NSWCCA 286; R v Newman [2004] NSWCCA 113. True it is that his Honour might have given a greater discount having regard to the assistance given by the applicant to police, but this is not a case where the applicant revealed to police unknown criminality such as would bring into play the principle in R v Ellis (1986) 6 NSWLR 603.
25 Ms Burgess pointed out that 23 fresh charges were laid after the applicant had originally been charged with the majority of offences that were before the court. She submitted that this Court should infer that the additional charges were as a result of information given by the applicant to police that enabled them to prepare a case against her in respect of those matters. There was no direct evidence before the sentencing judge, notwithstanding that the applicant gave evidence, as to what material the police had as to these extra charges and whether they could or could not have presented a case without the applicant’s assistance. Certainly the applicant did help their investigation as to those matters in a significant way and his Honour acknowledged this was so in his remarks.
26 It was open for his Honour to come to the conclusion that, despite the assistance given and admissions made to investigating police in the ERISP, the applicant was not truly contrite for her criminal conduct, at least not to the degree where she should receive a significant discount in that regard. He heard her in the witness box and was entitled to form the view that he did.
27 Before leaving this ground I should remark that, notwithstanding what I have written above, I do not understand why his Honour was not prepared to give the applicant the benefit of a discount of 25 per cent for the utilitarian value of her pleas, particularly taking into account her admissions and ready assistance to police in what otherwise might have been a complex case. Even though Thomson and Houlton (2000) 49 NSWLR 383 makes it clear that the assessment of the discount to be awarded for the utilitarian value of the plea is a matter of discretion, it is discretion that has to be exercised judicially. In the absence of any reasons for not giving a discount at the top of the range in the circumstances of the present case, I can only assume, with respect, that his Honour has either determined that no case should merit the full discount approved in the guideline judgment or has some misunderstanding of the considerations which are to be taken into account in determining the appropriate discount. However, in the present case I do not believe that the failure to discount the sentence by more than 20 per cent is alone an error vitiating his sentencing discretion.
28 The third ground is that the sentence is manifestly excessive. This ground relies upon the subjective features of the applicant, in particular the fact that she was on protection arising from an assault upon her by a fellow inmate armed with a syringe. However, evidence was placed before this Court on the basis that it may be necessary for the applicant to be resentenced which reveals that she is no longer on protection but is participating in a mother and child program. Although she still fears reprisals by the prisoner who attacked her or her associates, this is not a matter that warrants a reduction in the sentence imposed. Nor does the fact that she is stressed about pending custody proceedings in respect of her child. In my opinion there is nothing in the material itself which indicates that the sentencing discretion miscarried or can justify interference by this Court absent error being shown.
29 The applicant needs little by way of rehabilitation except so far as her drug usage is concerned. On the other hand there was a real need for the sentence to denounce the applicant’s conduct and reflect general deterrence, both because of the nature of the offences and because a government instrumentality, Medicare, was involved.
30 The criminality of the applicant was very high, notwithstanding the relatively modest amount of money obtained. I do not believe that the amount of the fraud is as decisive in an assessment of the criminality of the offender or the appropriate sentence as was urged upon us by Ms Burgess. The fact that other matters dealt with in the District Court and finding their way to this Court have involved considerably more loss to the victims does not indicate that the sentence is outside of the available range. The number of charges and the benefit obtained is merely one factor to be considered in all the circumstances of the case before the court.
31 Some of the cases referred to in the applicant’s written submissions are positively misleading if only the bare facts and the sentences imposed are considered. For example, in respect to the case of R v Fraser [2000] NSWCCA 97, the summary in the submissions does not disclose that the offender in that case received a third discount of the sentence because of assistance in respect of the prosecution of another offender. In respect of R v Montesinos [2002] NSWCCA 470 the summary does not reveal that the applicant received a suspended sentence because of her mental illness.
32 The applicant also relied upon statistics in both the Local and District Courts. The statistics in relation to the Local Court matters are in my view irrelevant. Those in relation to the District Court showed that the sentence imposed upon the applicant came within the top 38 per cent of sentences for offences of this nature. I do not find that result supportive of the argument that the sentence was outside the appropriate range when nothing is known about the amount of money involved, the nature of the frauds or the extent of the criminality in those cases. It does show, however, that the sentence was a heavy one and at the very top of his Honour’s discretion, but I am not satisfied that it exceeded it. I find no assistance from a comparison of non-parole period’s so as to suggest that there is a range in relation to that part of a sentence against which a particular sentence should be judged.
33 There was a particular attack upon the sentence imposed for count 34. This was the offence upon which the Form 1 matters were ultimately taken into account. That count related to a false claim on the HCF for $148. It was submitted that a sentence of imprisonment for 3½ years was manifestly excessive having regard to the nature of the offence. But the sentence for that offence took into account the sixty matters on the Form 1 and the sentence imposed did not have to be proportionate to the criminality involved in the offence alone, disregarding the Form 1 matters. A submission to that effect was, as I understand it, ultimately withdrawn.
34 It was also argued that the sentence for that count was too high because the offences on the Form 1 were offences related to counts for which the applicant was otherwise sentenced and that there was, in effect, a double punishment involved in taking into account offences committed as part of some other offence for which sentence was being passed. However, counsel was unable to indicate that any offence on the Form 1 was actually an element of some other offence for which the applicant was before the court. I do not accept that there is any unfairness or undue harshness in offences being taken into account where those offences were separate and distinct acts of criminality committed on the way to committing some other offence for which she was being sentenced. For my part, I believe that there is a significant difference in criminality between, on the one hand, forging a document and then using it to perpetrate a fraud, and, on the other hand, perpetrating a fraud by using a document which is itself not fraudulent.
35 I would grant leave to appeal but dismiss the appeal.
Last Modified: 05/27/2004
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