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 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.
The appellant was born in 1952. He has a long history of convictions dating back to 1967. Most of them are for dishonesty offences. He was first imprisoned in 1987 for a number of imposition offences.
Counsel who appeared for the appellant before the sentencing Judge placed before the Court a psychological report written by Ms Emma Warne, together with a pre-sentence report. The Judge referred to Ms Warne’s finding that the appellant displayed beliefs that could be classified as delusional and demonstrated delusions of grandeur and grandiosity. Ms Warne expressed the opinion that the appellant might meet the diagnostic criteria for Schizotypal Personality Disorder and Delusional Disorder. She recommended psychiatric assessment and psychological intervention.
The Judge determined to impose a single sentence in relation to all the offences. He took a starting point of six years imprisonment and reduced it to four years and nine months in recognition of the early pleas of guilty and fixed a non-parole period of two and a half years. He backdated that sentence to 20 April 2015 when the appellant first went into custody. The Judge made a reparation order to the Commonwealth in the sum of $125,586.
Arguments on Appeal
The single ground of appeal asserts a failure by defence counsel then acting to tender a psychiatric report by Dr Begg, “two errors” concerning the weight given to certain factors by the sentencing Judge, and a delay by the prosecuting authorities in laying charges. The ground of appeal effectively asserts that these errors led to a sentence which was manifestly excessive, both in the head sentence and the non-parole period. For convenience I set it out.
1.The head sentence and non-parole period were manifestly excessive in all of the circumstances including having regard to the following:-
(a)     The failure of defence counsel to tender to the court the psychiatric assessment of Dr Jules Begg of 07/10/15.
(b)     The sentencing Judge erred in his weighting of the psychological assessment of the appellant by Psychologist Emma Warne (25/05/16).
(c)     The learned sentencing Judge not adequately taking into account or at all the personal circumstances of the appellant in relation to:-
i.Separation from his family in Victoria
ii.His employment in the creation of facial animation software
(d)     The delays in the DPP (Commonwealth) in laying charges.
Upon the appeal hearing, counsel now acting for the appellant, Ms Stokes, did not claim that the head sentence was manifestly excessive. Rather, counsel relied on an argument that, having regard to the asserted errors, and in view of all the circumstances, the non-parole period should have been less than half the head sentence and the sentence should have been suspended under Part 5 of the Criminal Law (Sentencing) Act 1988 (SA).
I shall deal first with the asserted failures and errors.
The appellant argued that Dr Begg’s report was in the hands of counsel who previously acted, and that it should have been tendered to the sentencing Judge. Dr Begg’s report was before this Court for consideration of its relevance. Counsel acknowledged that it might not amount to fresh evidence. The Court received an affidavit of the counsel who appeared for the appellant during the sentencing proceedings which, while not categoric, asserted that he had no recollection of any psychiatric report from Dr Begg being among the papers he received from the appellant’s original solicitor. Ms Stokes argues that, to the extent that the report added anything, it added weight to Ms Warne’s opinion that the appellant would be best served by a sentence which saw him released into the community sooner rather than later. The appellant also argues that Dr Begg’s report tends to “corroborate” the details of his “biographical details”, about which the sentencing Judge seemed to be sceptical. However, Dr Begg’s account of what he was told does not have any corroborative effect. In any event, the detail of the appellant’s background in a case such as this, where the offending is sustained and the appellant is 65 years of age, is of very limited significance.
The second complaint is as to the weighting given by the sentencing Judge to Ms Warne’s report. Ms Stokes referred to Ms Warne’s expressed opinion that the appellant was probably suffering from a Delusional Disorder. As mentioned Ms Warne said that rehabilitation would best proceed if, rather than being imprisoned, the appellant was enabled to return to Victoria where his family reside and to his work on facial mapping software. It was argued that too little weight had been given to this opinion. The next particular made a similar complaint about the Judge’s weighing of the appellant’s personal circumstances. It was put to the sentencing Judge that imprisonment in South Australia would bear particularly heavily on the appellant because his family support is in Victoria, and there he has the opportunity to further his work on facial mapping. The appellant puts that the enforced absence from his business is “crippling in the competitive world of 3D”. It is said that interstate transfers were very difficult to obtain.
The appellant complains of a delay in the charging of these offences. The first investigation into this course of offending was by Centrelink personnel in August 2013. That led to enquiries by members of the Department for Foreign Affairs and Trade into use of the Knipe, Knight and Crafter passports. The Crafter Centrelink benefits were cancelled in September 2013. An application lodged in March 2015 for a passport in the name of Robertson, supported by Robertson’s birth certificate was refused by the Department of Foreign Affairs and Trade. The Department notified Centrelink in April 2015, and the Robertson benefits were cancelled.
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.
I turn to the complaint of delay in charging the offences. Having regard to the complexity of the crimes and their number, together with the way in which the false identities were used for both Centrelink frauds and passport offences, the delay does not appear to be undue. The appellant’s suggestion that the delay suggests a degree of “malice” is entirely unsupported. Quite apart from that, it is not as if the appellant can demonstrate a long period of rehabilitation after the completion of the course of offending. On the contrary, having been charged with a number of offences in 2014 and having been bailed for those offences, the appellant went on to commit further offences of the same nature in 2015. Some of the offences were committed in South Australia and others in New South Wales and Victoria. There can be no complaint about the forum chosen by the prosecuting authorities.
I do not consider there is any valid complaint about delay.
I turn to the complaint that the sentence is manifestly excessive.
Although this complaint is made upon the appeal, it is noteworthy that counsel who have appeared for the appellant before the sentencing Judge was at pains to submit that he would not suggest that anything other than an immediate term of imprisonment was called for. That acknowledgement was made on at least three occasions. Counsel directed his arguments to minimising the head sentence and non-parole period which he acknowledged would be imposed.
I do not suggest that this concession by defence counsel necessarily prevents counsel now acting from attacking the failure to suspend the sentence. However, the earlier submissions tend to underline that this was indeed a case where it would have been quite inappropriate to suspend the sentence. In my view counsel’s acknowledgement that an immediate custodial sentence was called for was realistic and well-advised. When one considers the number of offences committed, the planning and sophistication of them and the fact that they continued over such a long period, to the significant loss of the Commonwealth, it seems to me that the head sentence imposed was moderate. The appellant submits that his offending did not directly harm anyone. That is incorrect. The victims are the taxpayers of Australia and the shareholders of the National Australia Bank. That the loss is spread widely is not a matter of mitigation.

General deterrence, in cases such as these, assumes significance. In Kovacevic v Mills (2000) 76 SASR 404 at [37] this Court made that point in the context of similar offending. The plurality said:
In our opinion King CJ was right to emphasise in Cameron the responsibility of the courts to protect the integrity of the social security system, and the need for a firm approach to offences involving sustained and deliberate fraud. In particular, the Court must do what it can to deter such offending. Offences of the type in question are common. The fact that such offending occurs over a longish period of time demonstrates that the offending is calculated, or at least not committed on the spur of the moment. And it is true that sustained fraud against the social security system tends to undermine it, and because of its widespread and insidious nature, to impose substantial costs upon the community.
In the earlier case of R v Vasin; R v Scherf (1985) 39 SASR 45 this Court considered two sentence appeals arising from social security fraud. King CJ said at [46]:
But the invention of a fictitious personality is a particularly flagrant type of offence and places these offences in a more serious category than much offending against the Social Security laws. It involves a degree of deliberation, cunning and flagrant criminality which exceeds that involved in many cases of simply suppressing some modest additional income which enables the applicant to provide for himself a somewhat better living standard …
In Grahame v Singh [2010] SASC 306 Doyle CJ made observations about the seriousness of crimes undermining the passport system. His Honour said at [22]-[25]:
As has been said in other cases, it is necessary to protect the integrity of the passport system. The strength of the passport system is that it provides a secure and reliable form of identification. This type of offending undermines the reliability and integrity of that system. This has both domestic and international implications.
Other countries rely on the passport system. An Australian passport enables its holder to travel freely to and from most countries without hindrance because of the confidence that other countries have in the integrity of the Australian passport system. If other countries lose confidence in the Australian passport system, then Australians travelling abroad risk losing the travel privileges that they currently enjoy by virtue of holding an Australian passport.
Further, passports allow for the movement of people across international boarders. The relevant authorities in other countries as well as here in Australia have an interest in knowing who is entering and leaving their jurisdiction. There would be a significant security concern if persons entering other countries or Australia are not who they appear to be on their passports.
For these reasons general deterrence must be given a high weighting when sentencing for this kind of offending. People must be warned that if they engage in this sought of conduct they will be punished.
These authorities bear out the respondent’s submission that crimes such as the appellant’s must be treated seriously. While a court will always have regard to a defendant’s prospects of rehabilitation, such considerations form only part of the entire picture which must be assessed. The more serious the course of conduct for which sentence is to be imposed, the less the defendant’s mental state and personal circumstances will influence the final disposition. As I said, in view of the complexity, range and extent of financial loss associated with the appellant’s offences, the head sentence and the non-parole period can only be described as very moderate.
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.