R v Hartley - [2008] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARTLEY
[2008] SASC 228
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
22 August 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE
Appeal against sentence - appellant pleaded guilty to multiple dishonesty offences - disputed facts determined against appellant after hearing - whether judge erred in sentencing appellant on the basis of the disputed facts - consideration of principles governing the taking into account of conduct amounting to a separate crime which could have been, but was not, charged - whether sentence manifestly excessive. Held: error in taking into account disputed facts - sentence manifestly excessive considering the circumstances of the offending - appeal allowed - appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA), s 139, s 195; Criminal Law (Sentencing) Act 1988 (SA), s 30(2), referred to.
R v Austin (1985) 121 LSJS 181; R v Colson (1999) 73 SASR 407; R v Jamieson (1988) 50 SASR 130; R v P, NJ (No 4) [2008] SASC 97; R v Teremoana (1990) 54 SASR 30, applied.

R v HARTLEY
[2008] SASC 228
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: I would allow the appeal.
I agree with the orders proposed by Vanstone J and her reasons for decision.
VANSTONE J: Michael Vivian Hartley appeals against a sentence imposed in the District Court for six counts of false pretences, eight counts of deception and one offence of attempted deception. The offences occurred over the period April 2003 to March 2005. The total amount of money obtained by the appellant was $116,610. The single sentence imposed was one of six years, six months and two weeks imprisonment, with a non-parole period of four years. Prior to sentence the appellant had spent periods totalling one year in custody in respect of these offences. Therefore the effective non-parole period was five years.
All the offences showed a similar pattern. The victims were breeders of native or exotic birds, or plant nursery operators or, in one instance, a landscape gardener. In most cases the appellant contacted the victim at the victim’s place of business. In others the appellant either placed an advertisement on the internet, or responded to an advertisement placed by a victim. An agreement was struck in each instance for the appellant to provide either birds of a particular type, or specified plants. The victims would either pay the appellant in advance, or provide a deposit into the appellant’s bank account. Later the appellant would make an excuse for not having delivered the birds or plants. The greatest amount of money involved in any one offence was $19,700 (count 9) and the least amount, apart from the attempted deception, was $780 (count 2).
The only reason for the difference in the offence charged was the repeal of s 195 Criminal Law Consolidation Act 1935 (obtaining by false pretence) on 5 July 2003 and its replacement with the offence of deception: s 139 Criminal Law Consolidation Act.
Two principal arguments were put on the appellant’s behalf upon the appeal. First it was submitted that a disputed facts hearing in relation to one of the counts should not have taken place. That dispute was determined against the appellant and the judge explicitly took into account the disputed circumstances. It was contended that what the prosecution put as a circumstance of aggravation was wrongly so categorised and in fact amounted to a separate offence for which the appellant had not been charged.
Then it was contended that for additional reasons the sentence was manifestly excessive.
I shall deal with the arguments on appeal in that order.
Pleas of guilty were entered in the District Court before a judge other than the sentencing judge on 26 November 2007. The matter was then remanded for submissions. At a later hearing that judge was advised that a dispute in relation to facts had arisen. The judge then remanded the matter to 14 March 2008 so that evidence might be heard. On that date the matter came before the sentencing judge. The pleas of guilty were taken again. The judge was advised that the dispute related to count 6. Count 6 was a charge of false pretences. It alleged that the appellant had “between 1 June 2003 and 11 June 2003 at Reynella or some other place, with intent to defraud, obtained from Michael Hirsch money in the sum of $7,150 by falsely pretending he had for sale exotic parrots”. The dispute arose from an assertion made in a statement of Mr Hirsch. He said that on 14 June 2003 he telephoned the appellant and told him that he had 24 hours to send the birds the appellant was to provide or to return his money. Mr Hirsh told the appellant: “If you don’t, I will be going to the police”. He added: “I have found out that you are Mike Martin”. He alleged that the appellant replied: “Don’t go to the police. I’ve got mates in Canberra and that’s not far from Boorowa and you’ll wish you were dead”. The prosecution called Mr Hirsch to prove that threat. The appellant gave evidence in which he denied having made the statements alleged. A few days later the judge delivered written reasons for finding that the appellant had made the threat as described by Mr Hirsch. In sentencing the appellant on 26 March 2008, the judge referred to the factual dispute and to his finding as to the threat and told the appellant: “You are to be sentenced on that basis”.
When sentencing an offender it is proper for the sentencing judge to take into account such of the surrounding circumstances of the crime as are properly to be regarded as circumstances of aggravation or mitigation: R v Austin (1985) 121 LSJS 181 at 183 per King CJ, Zelling and Bollen JJ agreeing. The then Chief Justice went on to describe the difficulty sometimes arising in delineating the extent to which those surrounding circumstances should be brought to account. He described the difficulty arising where the circumstances were themselves crimes. He said that crimes of a similar character could be more readily viewed as circumstances of aggravation, particularly where the criminality involved was both subsidiary to and related to the conduct constituting the offence. He said:
Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes, or may constitute crimes of a different character or crimes against different victims.
The same issue arose in R v Teremoana (1990) 54 SASR 30. There the prisoner was charged with arson. The sentencing judge reserved for the determination of the Full Court the question whether in sentencing it should be taken into account that the prisoner must have realised that the occupier was likely to be asleep in the house. Cox J, with whom Jacobs J agreed, said that it was “certainly not a universal rule” that relevant actions of the prisoner constituting separate offences could never be regarded as circumstances of aggravation of the charged offence. Particularly if they were offences of lesser gravity than that charged, it would be a matter of “degree and fairness” whether they could be taken into account. His Honour instanced minor indecencies directly associated with an act of rape being properly taken into account even though they could, technically, have been separately charged.
Applying these principles to the present matter, I consider it is clear that the disputed threat should not have been the subject of a factual dispute and should not have been taken into account when sentencing for count 6. The threat was uttered on an occasion outside the dates when count 6 was said to have occurred. It was an offence different in character from the charge. Arguably, if proved, it amounted to an attempt to pervert the course of justice, or an offence of threatening harm, both serious offences in their own right. I think it likely that because of the way the matter came to the sentencing judge, insufficient consideration was given to the question of whether a disputed facts hearing should have been held in relation to the allegation.
Accordingly, an error in the sentencing process has occurred and the appellant’s sentence must be reconsidered. In these circumstances it is unnecessary to consider the further arguments of counsel for the appellant as to the reasoning process employed by the sentencing judge in ruling as he did on the dispute.
I turn then to the other ground of appeal.
The appellant argued that the sentence as a whole was manifestly excessive. Counsel submitted that the starting point of ten years imprisonment nominated by the sentencing judge was too high, especially having regard to the fact that the total amount of money involved, which was as I mentioned, about $116,000, was not of the order seen in some other cases of repeated dishonesty offences. Nor was it, counsel submitted, a case where there was any breach of trust involved. The only relationship between the appellant and the victims was of short duration and in the nature of buyer and seller. He pointed to the fact that in the relatively short remarks on sentence, the judge twice referred to the fact that there was no restitution made, suggesting that the judge gave it undue prominence. Then counsel submitted that there was an absence of reference to circumstances personal to the appellant which might have led to some leniency; for example, the needs of his elderly mother and children and his gambling addiction.
Counsel submitted that too much emphasis was placed on the appellant’s history of offending. The appellant was 50 years of age when sentenced. On any view that history is extensive, commencing in 1974 with dishonesty offences and continuing, fairly consistently through the `70s, `80s and `90s with numerous dishonesty offences of various types, very often attracting sentences of imprisonment. Counsel pointed to the period since 2000 as demonstrating an ability in the appellant to bring his life into “some semblance of order”. However, it might be noted that in December 2000 the appellant was sentenced to two years and six months imprisonment for multiple false pretences offences. Then, as I said, the current offences occurred over the period April 2003 to March 2005. More recently, in August last year, the appellant was dealt with in the Dandenong Magistrates Court, apparently for unlawful possession of some compact discs found in his possession at the time of his arrest in 2007. All in all, I consider that the sentencing judge was entitled to make the observation he did, being that “for about three decades you have been a career confidence trickster”. The fact that there were periods when the appellant did not offend does not detract from that observation. I do not consider that there is any reason to apprehend that the appellant’s antecedents played too great a role in the sentencing process.
Counsel placed particular emphasis on the fact that in three separate periods prior to his sentence, the appellant had spent a total of 336 days in custody in relation to the current offences. Those periods were from 23 October 2003 to 22 December 2003; 23 March 2005 to 16 June 2005 and 11 September 2007 to the date of sentence. As well, there was a period of 30 days on home detention bail. This unusual history is due to the appellant being apprehended at different times for the offences concerning birds and those concerned with plants. It is also due to his having failed to answer bail in 2006, several months before his trial was due to start, and having to be extradited from Victoria. The judge determined to give credit of eleven and a half months for those periods. However, counsel submitted that because the judge deducted that period from the head sentence, as opposed to “backdating” the commencement date of the sentence, the appellant was disadvantaged.
Counsel suggested that consistent with s 30(2) Criminal Law (Sentencing) Act 1988, the judge could have directed that the sentence be taken to have commenced eleven and a half months prior to the time of sentence. In that regard he referred to R v Colson (1999) 73 SASR 407 and R v Jamieson (1988) 50 SASR 130. To those references may be added R v P, NJ (No 4) [2008] SASC 97. To the extent that counsel suggested the sentence could be backdated to 11 September 2007 when the appellant was last arrested, the suggestion is uncontroversial. The authorities cited above deal with the question of whether it is open to a judge to “backdate” a sentence to cover periods in which the offender has been both in custody and in the community. In both Jamieson and Colson this court held that in very rare circumstances it might be appropriate for that to be done. In R v P, NJ this court was asked to reconsider the decision in Colson and declined to do so.
However, in my mind, it would be undesirable for that power to be utilised in the situation facing this appellant, which is not at all unusual. In this case there was no difficulty in ordering that the sentence be taken to have commenced on 11 September 2007 and indeed there were some advantages in doing so. For instance, the appellant would have known that the period between that date and sentence was accredited both to his head sentence and non-parole period and additionally, the time when he might qualify for home detention prison might have been reached earlier. However, the earlier periods, totalling about five months, should, in my view, have been left to be deducted from the final sentence.
Having regard to all the material before the sentencing judge and particularly those matters raised by counsel and disregarding, as I think was appropriate, the alleged threat against Mr Hirsch, I have come to the conclusion that the sentence imposed in this case was manifestly excessive. In my view the starting point of ten years imprisonment was too high. In saying so I have not disregarded the seriousness of the offences, the impact of them upon the many victims, or the regrettable history of offending by the appellant. Notwithstanding those matters it must be borne in mind that the monetary losses in these offences, though substantial, were not of the order seen where this court has reviewed similar sentences. And, as counsel pointed out, no breach of trust was involved.
I would take a starting point of a single sentence of eight years. From that I would deduct two years on account of the pleas of guilty. This is the same rate of discount as used by the judge, which, against the background of the appellant absconding, was generous. I consider that the non-parole period should be two-thirds of the head sentence. However, I would deduct from both the head sentence and non-parole period the period of five months to reflect the two earlier periods in custody, leaving an actual head sentence of five years seven months and a non-parole period of three years seven months. I would direct that this sentence be taken to have commenced on 11 September 2007, when the appellant last went into custody.
Accordingly, the orders I propose are:
1. allow the appeal;
2. set aside the sentence imposed in the District Court;
3.in its place, sentence the appellant to imprisonment for five years and seven months with a non-parole period of three years seven months;
4.direct that the sentence be taken to have commenced on 11 September 2007.
DAVID J. I would allow the appeal for the reasons given by Vanstone J. I agree with the orders she proposes.