R v Hill

[2004] NSWCCA 257

CITATION:	R v Sam Hill [2004] NSWCCA 257
HEARING DATE(S):	30/07/04
JUDGMENT DATE:	30 July 2004
JUDGMENT OF:	Spigelman CJ at 32; Hidden J at 33; Buddin J at 1
DECISION:	Leave to appeal against sentence granted. Appeal allowed (in part). In respect of count 1, the appeal is dismissed but the head sentence and non-parole period will each now commence on 13 March 2003. The head sentence will expire on 12 November 2005 and the non-parole period will expire on 12 March 2005. In respect of count 2 the appeal against the head sentence is dismissed. The appeal against the non-parole period is allowed. A non-parole period of 2 years is substituted. The head sentence and the non-parole period in respect of count 2 will each now commence on 13 March 2005. The head sentence will expire on 12 July 2008 and the non-parole period will expire on 12 March 2007.
CATCHWORDS:	Sentencing - offences of obtain benefit by deception - "special circumstances" - principle of totality.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Cameron v The Queen (2002) 209 CLR 339 Pearce v The Queen (1998) 194 CLR 610 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. R v Fidow [2004] NSWCCA 172 R v Johnson (2004) 205 ALR 346 R v McKechnie NSWCCA, unreported 1 October 1987 R v Mears NSWCCA, unreported 14 March 1991 R v Simpson (2001) 53 NSWLR 704 R v Weldon and Carberry (2002) 136 A Crim R 55
PARTIES :	Regina (Respondent) Sam Hill (Applicant)
FILE NUMBER(S):	CCA 60135/04
COUNSEL:	P Power SC (Respondent) S Kluss (Applicant)
SOLICITORS:	S Kavanagh (Respondent) R Hill (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1102
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

60135/2004

SPIGELMAN CJ
HIDDEN J
BUDDIN J

FRIDAY 30 JULY 2004

REGINA v SAM HILL

Judgment

1 BUDDIN J: On 17 March 2003 the applicant pleaded guilty to two offences of obtain benefit by deception. The first occurred between 29 November and 2 December 2000, and the second on 7 December 2000. The maximum penalty for each of these offences is imprisonment for 5 years. The applicant also asked the sentencing judge to take into account two Form 1’s, which contained three further offences of obtain benefit by deception and an offence of possess prohibited weapon, being a stun gun.

2 His Honour imposed a sentence in respect of the first count of imprisonment for two years and eight months, to commence on 23 May 2003 and to expire on 22 January 2006, with a non-parole period of 2 years, to expire on 22 May 2005. After taking into account the Form 1 matters, his Honour imposed a further sentence on the second count of imprisonment of 3 years and 4 months, to commence on 23 May 2005 and to expire on 22 September 2008, with a non-parole period to expire on 12 September 2007, on which date the applicant will be eligible for parole. The non-parole period of two years, three months and 21 days was fashioned in such a way as to take into account a period of 70 days that the applicant had already spent in custody prior to sentence. The effective total term was thus one of five years and four months with a non-parole period of four years and six months. The applicant seeks leave to appeal against these sentences.

3 The facts in the matter can be briefly stated. The applicant falsely represented to a number of persons that he had access, through his contacts within the Saudi royal family, to a substantial amount of money which was available for loan. He also had in his possession documents on the letterheads of various financial institutions which falsely claimed that he had funds in excess of $1 billion at his disposal. When he was negotiating the various loan contracts, the applicant insisted that the loan funds had to be secured by insurance obtained through Lloyds of London. He also required that the premiums be paid to him or to companies under his control as the coordinator of the loan. The monies were in fact banked into accounts over which the applicant had control and were subsequently used by him for his own purposes. Subsequent attempts by the victims to gain access to their loan funds were unsuccessful. When they made those attempts, the victims were met with further deceptions on the part of the applicant which it is unnecessary to detail. Lloyds at no stage arranged any such insurance and nor for that matter did it have any dealings with the applicant or anyone associated with him. Nor of course were any loan monies ever made available to any of the victims.

4 A number of the victims were fairly conversant with matters of a financial nature, but as the sentencing judge observed, at least one lacked any sophistication in that area. That particular victim, who was an invalid pensioner, had sold his home for which he had received the sum of $202,000. Subsequently he had given the bulk of the proceeds to the applicant. As a result of the applicant’s fraudulent actions, it was estimated that that victim had suffered an individual loss of about $120,000.

5 The amount of money involved in these offences was significant. The total amount which was dishonestly obtained by the applicant, including the offences on the Form 1, was nearly $740,000.

6 The offences in question, including those on the Form 1, were committed over a period of almost two years, namely from February 1999 to December 2000. The offences on the Form 1, albeit of a similar character to those on the indictment, involved separate offences committed against different victims. It is a matter of aggravation that the applicant embarked upon a course of conduct which involved a number of episodes of deception, rather than an isolated event. In R v Mears NSWCCA, unreported 14 March 1991, Lee CJ at CL observed that:

In the recent case of R v Hawkins (1989) 45 A Crim R 430 this Court considered a different set of circumstances altogether involving a solicitor in defrauding clients but it made observations which are of general application in regard to cases involving the fraudulent obtaining of money. The Court said:
In considering the gravity of the offences objectively as is required…the amounts of money involved are a significant matter for consideration. The amount of money involved in cases of premeditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality for they are an indication of the extent to which a prisoner is prepared to be dishonest and to flout the law and to advance whatever are his own purposes.
There are a number of cases as well as that one, which make it clear that the period of time over which the offences are committed is also a relevant factor in determining the extent of criminality . The motive of the persons involved is also a relevant factor. (emphasis added) (at 7)

7 The sentencing judge found that the offences perpetrated by the applicant involved a high degree of planning. The applicant had, for example, obtained possession of forged bank documents which falsely claimed that he was wealthy. He had also arranged for elaborate contracts, promising money which he knew he could not deliver, to be drawn up. He had then extracted money from the victims for an insurance premium which he knew did not exist.

8 In order to make his proposal sound plausible the applicant had created the false illusion that he was wealthy. To that end he drove expensive cars, rented an impressive office and a well-appointed home and also promised his victims connections to wealthy people. All of these actions, were designed to entice his victims to believe that the applicant was not only wealthy but a person of credibility. His actions were also designed of course to induce his victims to hand over their money to him.

9 It is apparent from what I have already said, and from what can be gleaned from a reading of the statements of the victims and the investigating police, that the offences that the applicant committed were very serious examples of the offence of obtain benefit by deception.

10 The applicant, who is of Iraqi descent, is now aged 53. He is the eldest of five siblings. The family migrated to Australia in 1970. He has been married four times and has five children, two of whom are now adults.

11 The applicant has a criminal record which does not assist him especially as it contains a number of entries for matters of dishonesty. It also includes a previous firearms offence. His history had the consequence that the issue of specific deterrence properly assumed some significance in the sentencing process. In 1974 the applicant was placed on a recognisance for three offences of larceny of a motor vehicle and one offence of break, enter and steal. Over the following five years, he was dealt with by way of fine or recognisance for various offences of dishonesty, including forge and utter, as well as for multiple counts of false pretences. In 1982 he was sentenced to terms of imprisonment for offences of possessing a firearm with intent to commit an indictable offence and assault. In 1987 he was imprisoned for armed robbery and related offences. The total head sentence which was imposed was one of 9½ years. In 1988 he was again imprisoned in respect of five offences of forge with intent to defraud. Although those latter offences were not before the sentencing judge, no objection was raised to their becoming part of the record before this Court. Nevertheless the sentencing judge was prepared to accept the submission that the applicant had had no convictions for a considerable number of years.

12 The applicant was entitled to have weighed in his favour his pleas of guilty. They were entered on the day of trial and only after various of the Crown witnesses had been cross-examined at a committal hearing. The pleas however were entered as a consequence of negotiations between the parties. The sentencing judge determined that a discount of 20% should be allowed on account of the fact that his pleas of guilty had “facilitated the course of justice”. See Cameron v The Queen (2002) 209 CLR 339.

13 There was however no additional claim that the applicant could advance on the basis that he had displayed remorse for his actions.

14 His attitude towards his offending behaviour is apparent in the following passage which is taken from the presentence report:

During discussion about the offence, Mr Hill maintains that his activities facilitating substantial loans between his Arabian friend and borrowers is legitimate. He added his only guilt in these matters was his failure to deposit the “part paid” insurance fees in a trust account.
The offender was adamant that all the subject loans would have been fulfilled were it not for a number of incidents that soured the business dealings. He stated these included collusion between his ex-partners to firstly extract money from him and then conspire to “load” him up with false documents and contraband (the stun gun).
He also considers that the victims, themselves, were in breach of the contracts because they made the insurance payments in Australian and not US dollars as prescribed in their contracts. He believes that the police erred in contacting many of the victims who he stated, then became “greedy” and saw an opportunity to sue him for breach of contract.
Mr Hill advised that he has now engaged a legal firm to arrange and undertake repayment to the victims. When queried as to why he does not simply draw on his foreign wealth to repay the victims, Mr Hill stated he cannot due to his dispute with the Australian Taxation Office.
Mr Hill has reported regularly and as required during the remand period. He describes himself as a basically honest, successful and extremely wealthy businessman with solid and influential international connections. The offender considers that he is the aggrieved person and believes that his success has made him a victim and target for others.

15 The applicant’s brother gave evidence that he had made efforts on the applicant’s behalf to begin the process of selling assets owned by the applicant in the United States in order that he might provide restitution to the victims of the offences. However the totality of the evidence did not suggest any basis for concluding that those efforts, such as they were, would ever lead to any of the victims having their losses recouped.

16 As I said at the outset, the total effective sentence imposed was one of five years four months’ imprisonment with a non-parole period of four years’ six months. The sentencing judge declined to make a finding of “special circumstances”. That being so, the normal statutory proportion would have yielded, against an overall head sentence of 5 years 4 months, a non-parole period of 4 years rather than the 4½ years which his Honour imposed. Although his Honour imposed sentences for the individual offences which were in conformity with the normal statutory proportion, the commencement date of the second offence which his Honour ordered, produced the overall result to which I have referred. In the circumstances I accept the contention of the Crown that there is nothing to suggest that his Honour intended to arrive at such a result and that his Honour simply miscalculated the intended non-parole period. That matter will be reflected in the orders which I shall, in due course, propose.

Ground 1

His Honour erred in not finding “special circumstances” per s 44 Crimes (Sentencing Procedure) Act 1999.

17 The applicant points to a number of matters which are said to warrant a finding of “special circumstances”. They include the fact that by reason of his age he has only a limited working life remaining, the fact that it would take a considerable period of time for him to compensate his victims as he had promised to do, the fact that his offences were of a non-violent nature, and the fact that cumulative sentences had been imposed upon him.

18 The proper approach to this question was authoritatively determined by this Court in R v Simpson (2001) 53 NSWLR 704. In that case, the Chief Justice (with whom other members of the court agreed) observed that:

…the scope of the considerations relevant to the determination of “special circumstances” must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole…
[t]he issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting “special circumstances” of the requisite character, i.e. that it is capable of justifying a variation in the statutory proportion which the legislature has enacted. (at para 57)

19 His Honour went on to say:

[o]ne practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a “special circumstance”. The decision is first one of fact – to identify the circumstances – and, secondly, one of judgment – to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive . (emphasis added) (at para 73).

20 See also R v Fidow [2004] NSWCCA 172.

21 In my view it has not been demonstrated, in the light of the relevant principles, that error has been demonstrated in the present case. This Ground of appeal should be rejected.

Ground 2

His Honour erred in accumulating wholly the second sentence upon the first

22 Although it is put in various ways, the thrust of the submission which is made, is that the sentencing judge failed to give proper effect to the principle of totality. The correct approach to be taken by a sentencing judge when sentencing an offender for more than one offence was determined by the High Court in Pearce v The Queen (1998) 194 CLR 610. See also R v Johnson (2004) 205 ALR 346.

23 In R v Weldon and Carberry (2002) 136 A Crim R 55 (Ipp JA (with whom Hulme and Bell JJ agreed)) observed:

[a] paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case: Hoare v The Queen (1989) 167 CLR 348.
The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria. …
It is … necessary to bear in mind the application of the totality principle. This required the Court, after fixing upon the appropriate sentence for each individual offence, having regard to its own individual circumstances, to consider whether the aggregate of the sentences is just and appropriate ( RH McL v the Queen (2000) 203 CLR 452 at 457) and to consider questions of cumulation or concurrence. In doing so, the Court continues to apply the principle that the sentence should be proportionate to the degree of criminality involved. (at paras 46-7, 56)

24 The sentence imposed in respect of the second offence also had to reflect the need to impose an appropriate penalty by reason of the additional criminality involved in the offences on the Form 1, all of which were very serious in their own right. See Attorney General’s Application Under s 37 of the Crimes (Sentencing Proceedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146.

25 There was considerable debate before the sentencing judge as to how the principles to which I have just referred were to be applied. A submission was made before his Honour that the two sentences should be served concurrently. Given that the applicant stood for sentence in respect of two separate offences, it was well within the sentencing judge’s discretion to decline to take that course.

26 The submission which is now advanced is not that the sentences should have been wholly concurrent, but that error was exposed by reason of the extent of the accumulation of the second sentence. Putting aside the matter to which I referred earlier, I am not otherwise persuaded, given the objective gravity of the applicant’s conduct and his prior criminal record, that the sentencing judge fell into error either in relation to the approach which he adopted concerning the question of totality or in the ultimate result at which his Honour arrived.

27 Nor do I do accept the further submission that there was an aspect of double punishment because there were elements common to each of the offences. The two offences did not contain common elements in the sense in which that expression was used in Pearce.

28 In R v McKechnie NSWCCA, unreported, 1 October 1987 Wood J (as his Honour then was) (Hunt and Allen JJ concurring), in remarks that are apposite to the present case, observed:

I am unable to see any error in the accumulation of sentence. Although it is true the offences were of a similar kind and conducted as part of an ongoing fraud, they did involve separate acts carried out over a lengthy period. In my view, it would have been entirely appropriate for there to have been an accumulation in respect of the counts to which there was a plea of guilty. (at 8)

29 I would reject this Ground of appeal.

30 The orders that I shall propose will also reflect in both the head sentence and the non-parole period, the 70 days which the applicant spent in custody prior to being sentenced.

31 I propose the following orders.

1 Leave to appeal against sentence granted.

2 Appeal allowed (in part).

3 In respect of count 1, the appeal is dismissed but the head sentence and non-parole period will each now commence on 13 March 2003. The head sentence will expire on 12 November 2005 and the non-parole period will expire on 12 March 2005.

4 In respect of count 2 the appeal against the head sentence is dismissed. The appeal against the non-parole period is allowed. A non-parole period of 2 years is substituted. The head sentence and the non-parole period in respect of count 2 will each now commence on 13 March 2005. The head sentence will expire on 12 July 2008 and the non-parole period will expire on 12 March 2007.

32 SPIGELMAN CJ: I agree with Buddin J.

33 HIDDEN J: I agree with Buddin J.

34 SPIGELMAN CJ: The order is as indicated by Buddin J.

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Last Modified: 08/06/2004