R v Knight

[2004] NSWCCA 145

CITATION:	R v Knight [2004] NSWCCA 145
HEARING DATE(S):	29/04/2004
JUDGMENT DATE:	14 May 2004
JUDGMENT OF:	Grove J at 1; Simpson J at 2; Howie J at 3
DECISION:	Leave to appeal is granted but the appeal is dismissed. The matter is to be remitted to the District Court only for the purpose of that Court sentencing the applicant in respect of count 25 on the committal document.
CATCHWORDS:	Criminal Law and Procedure - Sentencing for fraud offences - whether cumulative sentences warranted - whether sentencing discretion affected by the number of offences - Appeal - no sentence imposed for one offence - whether court should remit the matter.
LEGISLATION CITED:	Justices Act 1902 - s 52A (now repealed) Crimes Act 1914 (Cth) - ss 19AB, 29D (now repealed) Criminal Code (Cth) - s 134.2, 135.1 Passports Act 1938
CASES CITED:	R v Knight [2001]NSWCCA 114 R v Knight [2001] NSWCCA 344 Pearce v The Queen (1998) 194 CLR 610 R v El-Hayek [2004] NSWCCA 25 Wilkins (1988) 38 A Crim R 445 Gorman [2002] NSWCCA 516 Johnson v The Queen [2004] HCA 15 Veen v The Queen (No.2) 164 CLR 465
PARTIES :	Regina v John Adrian Knight
FILE NUMBER(S):	CCA 60447/03
COUNSEL:	M. Cinque - Crown J. Hickleton - Applicant
SOLICITORS:	Commonwealth DPP - Crown Catherine Hunter, Solicitor - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0817
LOWER COURT JUDICIAL OFFICER :	Backhouse DCJ

60447/03

GROVE J
SIMPSON J
HOWIE J

FRIDAY 14 MAY 2004

REGINA v JOHN ADRIAN KNIGHT

Judgment

1 GROVE J: I agree with Howie J.

2 SIMPSON J: I agree with Howie J.

3 HOWIE J: This is an application for leave to appeal against sentences imposed upon the applicant by her Honour Judge Backhouse on 21 March 2003 for a number of offences in breach of the criminal law of the Commonwealth.

4 On 25 July 2002 the applicant pleaded guilty in the Local Court under the now repealed s 52A of the Justices Act to thirty-two offences as follows:

(a) 12 offences contrary to s 29D of the Crimes Act 1914 (Cth) , being counts 1 to 9, 25 and 26 on the committal document;

(b) 18 offences contrary to s 134.2(1) of the Criminal Code (Cth) , being counts 10 to 24 and 30 to 32

(c) 3 offences contrary to s 135.1 of the Criminal Code (Cth) being counts 27 to 29.

5 The offences falling within the first category above were offences of defrauding the Commonwealth under a now repealed provision of the Crimes Act. The maximum penalty prescribed for an offence against that section was imprisonment for 10 years and a pecuniary penalty of $66,000. The offences in the second category were offences of dishonestly obtaining a financial advantage from a Commonwealth entity and carry a maximum penalty of imprisonment for 10 years and a pecuniary penalty of $66,000. The offences in the third category were offences of lodging a false document with intent to obtain dishonestly a gain from a Commonwealth entity, an offence that carries a maximum penalty of imprisonment for 5 years and a pecuniary penalty of $33,000.

6 The offences fall into these three categories by reason of the fact that, during the course of criminal conduct engaged in by the applicant, the relevant offence-creating provision of the Crimes Act was repealed and replaced with provisions of the Criminal Code. Thus some of the particular frauds perpetrated by the applicant resulted in a charge laid under the Crimes Act provision and others under the provisions of the Code. In some instances a particular fraud resulted in two charges being laid because the criminal conduct bridged the repeal of one statute and the commencement of the other. It was conceded by the Crown that there were nine extra offences arising only as a result of the change in the legislative basis for the charges laid against the applicant.

7 The applicant was ultimately sentenced by her Honour, and not without some confusion as to the appropriate counts included in each sentencing order, as follows:

(i) Counts 1 to 8: imprisonment for five years to commence on 15 May 2002 and to expire on 14/2/07.

(ii) Counts 9 to 11, 14 to 19, 26 and 30: imprisonment for five years to commence on 15 May 2002 and expire on 14 May 2007.

(iii) Counts 12 to 13, 20 to 24, 31 to 32: imprisonment for two years cumulative to the sentences imposed in respect of the sentences for the offences referred to in (i) and (ii).

(v) Counts 27 to 29: imprisonment for one year cumulative to the sentences imposed in respect of the offences referred to in (iii).

8 It appears, however, that her Honour intended to structure the sentences to achieve the following result:

(i) Sentence of imprisonment for five years for each of the nine s 29D offences;

(ii) Concurrent sentence of imprisonment for five years for each of the equivalent nine s 134.2 offences;

(iii) Cumulative sentence on (ii) of imprisonment for two years for each of the 134.2 offences committed while on parole;

(iii) Cumulative sentence on (iii) of imprisonment for one year for each of the 135.1 offences committed while on parole.

Her Honour unfortunately did not achieve that result and failed to sentence the applicant for count 25 on the committal document, a matter to which I shall return later.

9 As a result of these sentences her Honour imposed an effective head sentence of eight years to date from 15 May 2002 with a single non-parole period of five years to commence from that date and to expire on 14 May 2007. The specification of a single over-all non-parole period is in accordance with s 19 AB of the Crimes Act.

10 The offences arose from a course of fraudulent activity engaged in by the applicant during a period from November 1997 until he was arrested for the subject offences on 15 May 2002. Over that period the applicant obtained financial benefits from the Commonwealth by the use of 23 false identities and at the time of his arrest was in receipt of 18 benefits in false names. As a result of this fraudulent conduct the applicant obtained from the Commonwealth Services Delivery Agency the sum of $362,997.24 to which he was not entitled. In respect of three of the offences charged the applicant was unsuccessful in his attempts to obtain a benefit by the use of false names and these were the offences contained in counts 27 to 29 on the committal document.

11 It is unnecessary to detail the facts and circumstances surrounding each of the offences committed by the applicant. It is sufficient to note that they involved a scheme of some complexity in which false identities were created for the sole purpose of obtaining benefits from the Commonwealth and designed to make investigation and detection of the frauds extremely difficult. The applicant used identities gleaned from obituary notices of Australian citizens deceased overseas and manufactured documents supporting the claims and the continued payments of the benefits obtained as a result. On occasions he recruited other persons to assist him in perpetrating the frauds by producing on his behalf the false documents previously manufactured by him.

12 The offences came to light only when comparison was made across the data-base held by the agency and it became apparent that there were similarities in the details of some claimants. Closer inspection of these claims revealed a similarity in the handwriting on the claim forms. The claims were supported by fraudulent statutory declarations and other documentation, such as forged bail continuation forms. The search of the applicant’s premises revealed a considerable amount of documentation used in support of the false claims. However, when he was arrested and interviewed, the applicant denied some of the offences and refused to answer questions in relation to others. There is little doubt that, had the offences not been brought to light through investigations by the relevant agency, the frauds would have continued unabated.

13 The applicant was receiving more than $7,000 per fortnight in fraudulently obtained benefits at the time of his arrest. No assets of any significance were realised with the funds received and there is no prospect of the payments being recovered. The applicant was arrested living in rented premises in Woollahra with a female whom had been supporting to the extent of $1,000 a week. There were at least two females whom the applicant had been “rehabilitating” by the use of the funds he obtained from these frauds. He provided them with comfortable accommodation in two of Sydney’s more prestigious suburbs, paid their expenses and bestowed on them gifts of cash and expensive presents. This is the only explanation forthcoming from the applicant as to what happened to the funds obtained by him.

14 Subject to the issue of the applicant’s mental state at the time of the offending, this was a plain case of the applicant setting out to defraud the Commonwealth Government of a large amount of money for his own use over a lengthy period of time through a well-planned and carefully executed course of fraudulent criminal activity. There was a significant degree of organisational and management skills exhibited by the applicant in conducting these frauds under so many identities and with a number of different bank accounts and postal addresses. The applicant is a highly intelligent person who put to good use in perpetrating these frauds his academic qualifications; a degree of Bachelor of Economics and a Diploma in Business Studies from the University of New England.

15 The applicant’s criminal record is significant. In 1993 he was convicted of an offence involving a breach of the Passports Act by making a false document and was sentenced to 150 hours community service. In August 1994 he was sentenced for offences concerned with aiding in the obtaining of a false passport, the opening and operation of false bank accounts and breaching the community service order. He was sentenced to imprisonment for three months.

16 On 21 April 1997 the applicant was before the District Court on appeal from a magistrate on four counts of making false statements. He was convicted but sentence was deferred on the applicant entering into a bond to be of good behaviour for two years. That bond was current when the applicant committed the first of the offences now before the Court.

17 On 13 March 2000 the applicant was sentenced in the District Court for an offence of malicious wounding and the detention of a police officer, who had attempted to arrest him for a series of fraud matters. He appealed against the sentence imposed in respect of those offences but in the meantime was sentenced on 14 June 2000 for a series of fraud and forgery offences against both State and Commonwealth law to a period of imprisonment. This Court dismissed an appeal against those convictions on 30 March 2001. See R v Knight [2001] NSWCCA 114.

18 On 5 September 2001 this Court determined an appeal against the sentences imposed in March 2000 and redetermined one of the sentences. See R v Knight [2001] NSWCCA 344. As a consequence of these offences the applicant was required to serve a term of imprisonment of four years from 21 September 1999 with a non-parole period of 18 months that expired on 20 March 2001, the date upon which the applicant was released to parole.

19 During his period in custody, payments were made as a result of his earlier fraudulent claims, although he did not personally receive them. Other benefits lapsed because the applicant was unable to comply with the conditions for their continued payment. However, on release from custody the applicant immediately applied himself with vigour to take up his fraudulent activity from where he had been forced, by incarceration, to leave off. He re-applied for the lapsed payments and invented twelve new identities in order to obtain previously unclaimed benefits.

20 In submissions before Judge Backhouse the Crown divided the offences into three classes as follows:

Class 1: Offences which began before the prisoner’s gaol term commenced, continuing whilst he was there and ceased only when he was arrested by the Australian Federal Police on 15 May 2002. These are the matters of Barg, Daw, Hughes and Warburton each of which was a false name.

Class 2. In each of these the claim was made before the prisoner was gaoled, lapsed during that period and resumed after his release; Montgomerie, Selmes, Shanks, Richard Smith and Roger Smith

Class 3. These offences began after the prisoner’s release in 2001; Collette, Ewald, Ewins, Glayde, Harding, Harris, Kirk, Milton, Oates, Quinn, Sampson, Helen Smith.

It should be obvious that the offences in the second and third categories were either instituted or re-commenced while the applicant was on parole for earlier fraud offences.

21 The prosecutor submitted to her Honour that the matters before the court were in the very worst category of offences of their nature. That was in my view an appropriate categorization of the criminal conduct disclosed by the offences. Her Honour did not find it to be in the worst category because of the applicant’s mental condition, to which I shall refer later, but in my opinion the applicant was fortunate in that assessment. True it is that the amount obtained, although considerable, may not have been a record for offences of this kind and not all of it was received by him personally. But the commencement of this course of criminal activity while he was subject to a good behaviour bond and then persisting in it, despite the fact that he had been sentenced to imprisonment for fraud and released to parole, are seriously aggravating features that in combination with the nature and the extent of the applicant’s fraudulent conduct made it a most serious example of conduct falling within the relevant provisions. The applicant’s personal circumstances do little in my view to mitigate the offences.

22 It should be borne in mind that the maximum penalty with which her Honour was concerned and by which her discretion was limited was not the maximum for any one offence. Had her Honour come to the view, which in my view would have been open to her, that the criminal conduct engaged in by the applicant warranted a sentence of more than ten years imprisonment, there was no legal principle that would have prevented her from imposing a total sentence that, by way of cumulation, would have exceeded the maximum for any one offence. Nor would her Honour have had to come to a finding that the conduct fell within the worst category for offences of its kind before it was open for her to impose a sentence equivalent to the maximum for any one offence.

23 The first three grounds of appeal concern her Honour’s decision to accumulate the sentences for some of the offences. It is argued that, because the applicant was involved in a single course of criminal conduct, her Honour had no reason, or gave no reasons, for not making all the sentences concurrent. It was submitted that her Honour may have been unduly influenced by the number of offences and overlooked that they were inflated by two facts, that there was a change in the relevant legislation and that the Crown abandoned its normal practice of charging a number of acts of fraud in a single count when they formed part of a single course of criminal conduct. It is further argued that the application of Pearce v The Queen (1998) 194 CLR 610 worked unfairly against the applicant because of the number of offences that he faced.

24 As I have already noted there were nine additional offences charged as a result of the change in the legislation, so that, in respect of each of nine of the twenty-three identities used by the applicant, two charges arose rather than one. In my view this fact is of lesser significance than it might have been given the number of identities adopted by the applicant and the extent of his fraudulent conduct in providing support for those identities when making the claims and in obtaining the benefits. However, her Honour was well aware of this anomaly, it having been brought to her attention by the prosecutor at the commencement of the hearing. She referred to it in her sentencing remarks and intended to make the offences arising from that circumstance concurrent with the counterpart offences under s 29D. Although her Honour did not achieve that result, this error did not have the effect of unduly inflating the overall sentence.

25 The Crown appearing before this Court has disputed that any practice existed whereby the prosecution relied upon a single charge to encompass separate acts of fraud performed as part of a single enterprise in obtaining benefits from the Commonwealth. It is unnecessary to determine whether such a practice did exist for at least three reasons: firstly, it is a matter for the prosecution to determine what charges are laid against an accused person as a result of his or her criminal activity; secondly, if such a general, indiscriminate practice did exist it is not one that, in my view, this Court should endorse; and thirdly, the relevant issue at the end of the day, so far as sentencing is concerned, is not the number of offences before the court but the criminality revealed by them.

26 The Crown has an almost unfettered discretion in determining what charges are to be brought against an offender provided that the nature or number of the charges does not result in oppression or unfairness to the accused; R v El-Hayek [2004] NSWCCA 25 at [42]. The time for any genuine complaint to be made as to the conduct of the prosecutor in this regard is at the time of, or shortly after, the charging of the offences rather than at the time of sentence or on appeal. The court is able to curb any excesses on the part of the prosecution, in the rare case where it is necessary to do so, by staying the prosecution of a charge or charges as being oppressive. In the more usual case, the sentencing court will be astute to make a proper assessment of the criminality actually arising from the offender’s conduct and to ensure that the sentence imposed does not exceed what is appropriate to reflect the criminality of that conduct, regardless of the number of charges for which sentence is to be imposed.

27 However, I doubt that it would be appropriate for a prosecutor, in a case where there are a significant number of distinct and serious fraudulent acts over a lengthy period of time but against a single victim, to reflect that course of criminality in a single rolled up charge. Such a procedure has the tendency to mask the real extent of the criminal conduct perpetrated by the offender and can result in a sentence that fails to adequately reflect that criminality. It can also lead to issues about duplicity and fairness to the accused where he or she might have a defence available to some of the allegations but not to others. In the present case the prosecutor indicated to Judge Backhouse, in explanation for the number of charges, that the Crown had taken the course it did in fairness to the accused in case he had a defence to some particular charge or charges.

28 The prosecutor also stressed to her Honour that the Crown was relying upon the totality of the criminality involved rather than the number of charges and cautioned the sentencing judge against being “dazzled” by their number. There is in my view no reason to suspect that the sentencing discretion exercised by Judge Backhouse may have miscarried merely by reason of the number of the charges faced by the applicant and to which he had pleaded guilty.

29 Counsel for the applicant argued forcefully both in written submissions and orally that her Honour had erred in imposing cumulative sentences because this was a single course of criminal conduct aimed at defrauding the Commonwealth. I would reject the submission as in my view it would be inappropriate to class the present case as being one of a single course of conduct warranting concurrent sentences simply because the applicant had resolved on a particular course of criminal activity through which to obtain whatever money he required for whatever purpose. Not only did the applicant use a number of different identities, he also claimed different types of benefits, he used persons to assist him in claiming some of those benefits, and he made a number of false claims at different times during the course of his criminal enterprise. Perhaps more significantly the applicant instituted or resurrected fraudulent claims after he had been released to parole from serving a sentence for fraud offences. To regard those matters as being merely a continuation of the same course of criminal conduct engaged in before he was sent to prison, is in my view, incompatible both with a proper appreciation of the facts and established sentencing principles.

30 In any event, the fact that the offences arose from a single course of criminal conduct would not have required her Honour to impose concurrent sentences for those offences. See Wilkins (1988) 38 A Crim R 445. It is erroneous for a court to impose concurrent sentences on the basis that the offences arose from a single course of criminal conduct where the overall sentence imposed does not reflect the total criminality involved in that course of conduct: Gorman [2002] NSWCCA 516.

31 The contention that in some way the applicant was disadvantaged because of the application of Pearce is in my opinion completely misconceived. The fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences: the totality principle. Johnson v The Queen [2004] HCA 15 makes it clear that this principle was neither established nor affected by the decision in Pearce. The significance of Pearce, in this regard, was to indicate the preferred manner in which sentences are to be structured in order to achieve compliance with the totality principle. In particular this Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence is being passed. Johnson merely confirms that compliance with the totality principle can also be achieved by decreasing a sentence that is to be made wholly cumulative with a sentence for another offence.

32 In the present case her Honour sought to apply the principle in Pearce, but, with respect, not altogether successfully. However, her Honour did recognise that the totality of the criminality reflected by the offences before her required that there be some accumulation of the sentences to be imposed because the appropriate sentence for any one of the offences would not have been sufficient to reflect the totality of the criminality involved in all the offences. Further, her Honour sought to overcome the double punishment aspect arising from the change in legislation by making the sentences for the s 29D offences and the counterpart s 134.2 offences concurrent.

33 The applicant was aged 59 years at the date of sentencing and has some health problems. These matters can have little significance in determining the appropriate sentence having regard to the objective facts and, in particular, that the applicant committed further offences by inventing eleven identities after his release to parole in 2001. It is trite that advanced age and ill health cannot, generally speaking, provide an excuse for the commission of criminal activity. Nor do they themselves necessarily warrant leniency. In a case such as this where the applicant has a record for serious fraudulent conduct over a lengthy period of time and these present offences continued unabated until his arrest, these subjective considerations can be given little, if any, weight.

34 This is a case where the applicant’s criminal antecedents give rise to considerations that were enunciated by the High Court in Veen v The Queen (No2) 164 CLR 465 at 477, and the applicant has “manifested in his commission of the instant offence[s] a continuing attitude of disobedience to the law”. The sentences to be imposed had not only to act as general deterrence but also had to reflect an element of specific deterrence.

35 The next ground of appeal contends that her Honour failed to have sufficient regard to the applicant’s mental state at the time of the commission of the offences. There were two reports before her Honour relevant to his mental state; the first a report by Dr Clark of February 2000, the second a report of Dr Carne dated 20 January 2003. Dr Clark opined that the applicant was suffering from a Bipolar Disorder and his feelings of “over-valued ideas of his own worth and capabilities are grandiose”.

36 Dr Carne, however, did not believe that the applicant was suffering from a mental illness but that he had a Personality Disorder “by virtue of his tendency to self-isolation, his feelings of being an outcast from childhood and his predisposition to help others without regards to the consequence for himself”. He thought that there may be some form of treatment available to assist the applicant but stated “it would be difficult to offer a prognosis without first assessing the response to an initial period of treatment”. Dr Carne found that the applicant’s criminal conduct was related to his personality disorder particularly manifesting in “his fraudulent use of disability allowances, not primarily for himself, but to support his friends”.

37 Judge Backhouse took into account the applicant’s mental state as a mitigating factor in assessing his criminal responsibility. She also was conscious of that line of authority that holds that general deterrence may be given less weight in a case where the offender suffers from a significant mental disability. In my view the sentence imposed does not indicate that her Honour mistook or otherwise failed to appreciate the significant of the applicant’s mental state, such as it was. The repetitious nature of his offending over a very lengthy period indicates that he is an entrenched fraudster and he is not an inappropriate subject for a sentence involving the full measure of general deterrence that such criminal conduct warrants.

38 The final matter of complaint was that her Honour failed sufficiently to take into account that the applicant will serve his sentence on protection. There was in evidence before Judge Backhouse a letter from the NSW Police Service which explained that the applicant had, during the course of his imprisonment before his release in March 2001 given information to police investigating a gaol murder. That information was not considered to be crucial to the Crown case and the applicant was not called at the trial of the alleged offender.

39 The current position is that the applicant is housed at the Junee Correction Centre in the Special Management Area Placement (SMAP), which offers protection without segregation from other prisoners with similar concerns. There are presently 450 inmates being held in the SMAP. The applicant has full access to employment, TAFE programmes, and recreational opportunities. There is no evidence that his imprisonment will, physically at least, prove more onerous to him by reason of his protected status. Although it was submitted that he would find prison more mentally stressful because of his protected status, there is no evidence to that effect and I would not be prepared to infer it in the applicant’s case at least. The applicant must have known that further criminal activity after his release to parole would inevitably return him to custody, and to protection. In all of these circumstances there would have been no requirement, and no justification, for her Honour to have given any mitigation by reason of his protected status.

40 Although the sentence imposed was a substantial one, especially having regard to other cases to which we were referred, and at the top of the existing range, it was in my view a sentence well justified by the objective facts.

41 Insofar as the unsentenced count 25 is concerned the Crown has submitted that this Court should remit the matter to the District Court. I agree as I do not believe this Court has any jurisdiction to pass a sentence where the sentencing court has failed to do so. This is unsatisfactory because the Crown concedes that any sentence imposed for that count would not affect the term of the sentence to be served by the applicant. However, it seems to me to be inappropriate that the applicant should have been convicted of an offence but remain unsentenced for it.

42 I propose that leave to appeal be granted but the appeal be dismissed. The matter is to be remitted to the District Count only for the purpose of that Court sentencing the applicant in respect of count 25 on the committal document.

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Last Modified: 05/17/2004