R v Knipe - [2017] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNIPE
[2017] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
27 April 2017
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
Appeal against sentence on the ground that the sentence was manifestly excessive. Where the appellant charged with some 17 offences of dishonesty, most of them against the Commonwealth and all of them involving various misrepresentations or identity frauds, committed over a period of about nine years. Where the charges included providing false or misleading documents, obtaining a financial advantage by deception, eight counts of improper use of an Australian travel document, obtaining a financial advantage by deception, and obtaining a financial advantage. Where the loss to the Commonwealth amounted to about $125,000. Where the Judge imposed a single sentence in relation to all offences of four years and nine months imprisonment and fixed non-parole period of two and a half years.
Whether the sentence was manifestly excessive having regard to the psychological report about the appellant, the appellant’s personal circumstances including that his family support was in Victoria and that he had gainful activity available to him there and to the delay by the prosecuting authorities in laying charges. Whether the non-parole period should have been shorter. Whether the sentence should have been suspended under Part 5 of the Criminal Law (Sentencing) Act 1988 (SA).
Held Vanstone J (Parker and Doyle JJ agreeing): No error demonstrated. The sentence was very moderate. The appeal is dismissed.
Australian Passports Act 2005 (Cth) s 29, s 32; Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 137; Criminal Code 1995 (Cth) s 134, s 135; Criminal Law (Sentencing) Act 1988 (SA) pt 5, referred to.
R v Lutze (2014) 12 SASR 144, applied.
House v King (1936) 55 CLR 499; Kovacevic v Mills (2000) 76 SASR 404; R v Vasin; R v Sherf (1985) 39 SASR 45; Grahame v Singh [2010] SASC 306, considered.

R v KNIPE
[2017] SASCFC 34
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ
VANSTONE J.

David Alan Knipe pleaded guilty before a Magistrate to some 17 offences of dishonesty, most of them against the Commonwealth and all of them involving various identity frauds or other misrepresentations, committed over a period of about nine years. He was committed for sentence to the District Court. There, a Judge sentenced him to one sentence for all the offences, being imprisonment for four years and nine months, with a non-parole period of two years and six months. The sentence was backdated by about 16 months to the date when the appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Knipe

Details

AGLC: R v Knipe [2017] SASCFC 34
Case: [2017] SASCFC 34
Decision Date: 27 April 2017

CaseChat Overview and Summary

The appellant, David Alan Knipe, appealed to the Full Court of the Supreme Court of South Australia against a sentence imposed by a District Court Judge. Knipe had pleaded guilty to 17 dishonesty offences, primarily against the Commonwealth, involving identity fraud and misrepresentations over approximately nine years. The District Court Judge sentenced him to four years and nine months imprisonment, with a non-parole period of two years and six months, backdated to his initial custody. Knipe argued that this sentence was manifestly excessive.

The legal issues before the Full Court were whether the sentence imposed was manifestly excessive, and whether certain evidence, specifically a report from a Dr. Begg, constituted fresh evidence that should be considered on appeal. The court was also required to consider whether the sentencing judge had made a specific or process error in assessing the evidence and the appellant's personal circumstances, or if the sentence was merely an outcome error that was outside the permissible range.

The Court, in dismissing the appeal, reasoned that the sentencing judge was entitled to characterise Knipe's conduct as involving a high level of planning, premeditation, deception, and fraudulent conduct for significant financial gain, including an intricate scheme to defraud Centrelink and a loss to the National Australia Bank. The court found that Dr. Begg's report did not constitute fresh evidence and, in fact, contained information that was adverse to Knipe's case, suggesting deliberation and insight into his offending. The court also held that a submission that a sentencing judge did not give adequate weight to a factor does not, of itself, amount to an appealable error, unless it forms part of a submission of manifest error, meaning the sentence was unreasonable or plainly unjust. The court found no specific or process error in the sentencing judge's consideration of the evidence or the appellant's personal circumstances, and therefore concluded that the sentence was neither attended by error nor manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

David Alan Knipe pleaded guilty before a Magistrate to some 17 offences of dishonesty, most of them against the Commonwealth and all of them involving various identity frauds or other misrepresentations, committed over a period of about nine years. He was committed for sentence to the District Court. There, a Judge sentenced him to one sentence for all the offences, being imprisonment for four years and nine months, with a non-parole period of two years and six months. The sentence was backdated by about 16 months to the date when the appellant first went into custody. He now appeals against the sentence, arguing that it is manifestly excessive.Background The course of offending consisted of:Making a false statement in relation to an Australian travel document, contrary to s 29(1) of the Australian Passports Act 2005 (Cth), maximum penalty of 10 years imprisonment or 1,000 penalty units, or both.Two counts of producing false or misleading documents, contrary to s 137(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), maximum penalty of 10 years imprisonment or 10,000 penalty units, or both.Two counts of obtaining a financial advantage by deception, contrary to s 134.2 of the Criminal Code 1995 (Cth), maximum penalty of 10 years imprisonment.Making a false statement in relation to an Australian document, contrary to s 29(1) of the Australian Passports Act, maximum penalty of 10 years imprisonment or 1,000 penalty units, or both.Eight counts of improper use of an Australian travel document, contrary to s 32(2) of the Australian Passports Act, maximum penalty of 10 years imprisonment or 1,000 penalty points, or both.Obtaining a financial advantage by deception, contrary to s 134.2 of the Criminal Code, maximum penalty of 10 years imprisonment.Dishonestly obtaining a gain from another person, contrary to s 135.1(1) of the Criminal Code, maximum penalty of 5 years imprisonment.Obtaining a financial advantage, contrary to s 135.2(1) of the Criminal Code, maximum penalty of 12 months imprisonment. The Judge characterised the course of offending as involving a “high level of planning, premeditation, deception and fraudulent conduct over an extended period, committed primarily for significant financial gain”. His Honour described the offending as having at its centre “an intricate scheme to defraud Centrelink by submitting false declarations and statements in order to obtain social security payments”. The total loss to the Commonwealth arising from all the offences of which it was the victim was $125,000. The appellant complains of the Judge’s characterisation of his crimes, asserting that they were merely “a series of blunders committed as a result of immediate exigency”. However, the Judge was entitled to the view of the offending reflected by his words. The offending may be briefly summarized as follows. The appellant obtained the birth certificates of the deceased infants Crafter and Robertson. He obtained a driver’s license in the name of Crafter by use of the birth certificate. Then, using those documents he obtained an Australian passport in the Crafter name. The passport was then used by the appellant to leave and re-enter Australia on a number of occasions. Newstart payments and Centrelink benefits were obtained in the Crafter name. The National Australia Bank was also a victim of one of the offences. The appellant obtained a credit card using the Crafter name and that was used by the appellant, resulting in a loss to the bank of $5,648. Centrelink payments were also obtained by use of two variations of the appellant’s own name. There were also offences involving obtaining Newstart payments and a disability support pension by use of the appellant’s own name; as well as the name Knight, which he used less frequently. By using the Robertson birth certificate and other documents obtained in the Robertson name the appellant applied for a passport in that name. It was in processing this application that irregularities were discovered and an investigation commenced.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J

Since the hearing of the appeal the appellant was given permission to file further brief submissions in support of his ground of appeal. While I have read and considered those submissions, my view is that there is no force in the appellant’s arguments.Conclusion In my opinion the sentence imposed on the appellant was neither attended by error nor manifestly excessive. I would dismiss the appeal. PARKER J: I agree with the reasons of Vanstone J and the orders she proposes. DOYLE J: I agree with the reasons of Vanstone J, and would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

Charges in relation to the passport offending, money laundering and Centrelink offending relating to the use of the name Crafter were laid in July 2014. Charges relating to the use of the false Crafter passport were laid in December 2015 as were the dual benefits offending charges against Centrelink. In May 2016 the Robertson passport offending charge and the Robertson Centrelink charges were laid in the Magistrates Court. Ms Stokes argues that a delay of some two years before all the charges were laid was excessive. She did not suggest that this was a case where a long delay was accompanied by demonstrated progress towards rehabilitation. However, it was put that it was doubly unfortunate that the charges took so long to be finalised, and were laid in South Australia, rather than the appellant’s home state of Victoria.Consideration The Court has not found it necessary to decide whether or not counsel previously acting was in possession of Dr Begg’s report. We have received a copy of the report and have considered its contents. As Mr A Allan, for the respondent, points out, the report does little to assist the appellant’s cause. Although Dr Begg offers a diagnosis of Delusional Disorder which the psychologist, Ms Warne, only tentatively suggests, a more firm diagnosis of that disorder is not a material matter. Contrary to the appellant’s assertion there is no general principle that “persons of a disordered mind” should not be imprisoned. Here the appellant plainly committed these offences with deliberation and insight. Furthermore, some of the contents of Dr Begg’s report are rather more adverse to the appellant than was Ms Warne’s report. For instance, Dr Begg relates that the appellant explained his conduct by reference to feeling “directed to go to Peru to uncovered truths”. As he had prior convictions he needed to acquire a passport in another name. He needed money to finance his travels. He considered that the need for a false passport “would take priority over the worldly constraints of the law”. However, the appellant did not apparently reveal to Dr Begg the full extent of his travels or that, despite his claimed “spiritual world revelations”, he continued to offend. It appears that the history given to Ms Warne differed in important respects to that taken by Dr Begg. In these circumstances, if defence counsel then acting made a considered decision not to tender Dr Begg’s report and to rely only on Ms Warne’s, then that would appear to have been the correct forensic decision. In any event, there is no material from the appellant to prove that he instructed defence counsel to tender Dr Begg’s report. In the absence of any firm instruction, defence counsel was entitled to rely on his professional judgment, which as I have said, was in my view correct. In my opinion the report of Dr Begg is not fresh evidence and should not be received. While particulars (a) and (b) of the ground assert error by the Judge, it is well settled that giving less than adequate weight to a matter does not, of itself, amount to error in the sense of House v King (1936) 55 CLR 499. This was confirmed fairly recently in this Court in R v Lutze (2014) 121 SASR 144. In that case Parker J and I spoke of the difference, in terms of enlivening the Court’s jurisdiction to interfere in a sentence, between a specific or process error, as against an outcome error. We said at [46] and [47]:The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor. It is an identifiable error of fact or law, which in all but the rare case will be express. Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen (2005) 228 CLR 357. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court's authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above.It is not apparent from the sentencing remarks exactly what weight was given to Ms Warne’s report. Certainly the Judge referred to it and had regard to it. There was no obligation on the Judge to ascribe any particular weight to it. The same can be said in answer to the next complaint, that the Judge did not “adequately take into account” the personal circumstances of the appellant in being separated from his family in Victoria and the opportunity to work said to be available there. Again, his circumstances were made plain to the sentencing Judge by defence counsel. The Judge referred to these matters. There was nothing exceptional about them. There was no obligation upon him to do more. In these circumstances there is no valid complaint.