R v PACIFICO - [2009] SASC 379

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PACIFICO
[2009] SASC 379
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Bleby)
17 December 2009
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FORGERY AND UTTERING
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT
Application for permission to appeal against sentence following refusal of permission by single Judge – applicant pleaded guilty in District Court to 18 counts of obtaining property on forged instrument, one count of false pretences and one count of obtaining benefit by deception – loans totalling $25m obtained by use of forged documents – $8m remains outstanding – sentence of imprisonment for 12 years imposed for 18 counts of obtaining property on a forged instrument and one count of false pretences – sentence of imprisonment for four years imposed for one count of obtaining benefit by deception to be served cumulatively upon sentence of imprisonment for 12 years – whether sentence manifestly excessive – whether sentence imposed for offence of obtaining benefit by deception manifestly excessive in circumstances – whether Judge erred in application of principle of totality – whether Judge had adequate regard to time spent on home detention – whether Judge failed to have adequate regard to restitution on part of applicant.
Appeal dismissed – sentences appropriate given gravity of offences – Judge did not err in application of totality principle – no obligation on sentencing court to reduce sentence on account of time spent on home detention bail – Judge did not err in approach to restitution made by applicant.
Criminal Law Consolidation Act 1935 (SA) s 5AA, referred to.
R v Telford (2005) 242 LSJS 33; R v Carr (2008) 101 SASR 13; R v Malesevic (1999) 204 LSJS 32, considered.

R v PACIFICO
[2009] SASC 379
Court of Criminal Appeal: Duggan, Nyland and Bleby JJ

DUGGAN J: This is an application for permission to appeal against sentence following the refusal of permission by a single Judge.
The applicant pleaded guilty to 18 counts of obtaining property on a forged instrument and one count of false pretences. He also asked the Court to take into consideration when sentencing 17 further offences of obtaining property on a forged instrument.
The forgery offences, including those taken into consideration, were committed from 1999 to 2002. The documents were forged in order to obtain a series of loans from finance companies. The total amount obtained was over $25.5 million. More than $8 million remains outstanding.
In addition to these offences, the applicant pleaded guilty to obtaining a benefit by deception between 11 July 2007 and 15 August 2007. The benefit consisted of two mini loaders of the value of $71,300. This offence was committed while the applicant was on bail in relation to the previous offences. This resulted in the applicant being charged with breach of bail, an offence to which he also pleaded guilty.
The applicant was sentenced in the District Court to one sentence of imprisonment for 12 years on the 18 counts of obtaining property on a forged instrument and the count of false pretences. A sentence of imprisonment for four years was imposed for the offence of obtaining a benefit by deception. It was ordered that the sentence be served cumulatively upon the sentence of imprisonment for 12 years. A conviction without further penalty was recorded in relation to the breach of bail.
The total head sentence was imprisonment for 16 years. The Court imposed a non‑parole period of 10 years.
The grounds of appeal complain that:
(1)the sentence of 16 years was manifestly excessive;
(2)the head sentence should have been reduced by reason of the principle of totality;
(3)the sentencing Judge failed to have any or adequate regard to the period of over three years when the applicant was on home detention bail;
(4)the sentencing Judge failed to have adequate regard to the amount of restitution.
The applicant was 44 years of age at the time of sentencing. He has no relevant previous convictions. He is married and has a son who was 6 years of age at the time of sentencing.
After leaving school the applicant worked for eight years in the finance section of the Royal Adelaide Hospital. In 1990 he went into business on his own account as a subcontractor to a building firm. He was engaged in the pumping of concrete. In 1995 he secured a contract with a mining company at Roxby Downs. His business prospered and, by 1999, he had purchased 12 pumping machines valued at $14 million.
The applicant then began borrowing large amounts of money, ostensibly for the purchase of new equipment. Much of this funding was not used for the purpose for which it was borrowed. The loans were obtained by forged documents. A summary of the offences is set out in the Judge’s sentencing remarks. There is no need to repeat the summary for present purposes.
After the applicant’s arrest he was released on home detention bail. He pleaded guilty to the 18 counts of forgery and the count of false pretences on 18 July 2007. The agreement was continued while the matter was adjourned for sentencing submissions. It was during this period that the further offence of obtaining a benefit by deception was committed.
When laying the foundation for the head sentence, the sentencing Judge commented that, if the offences were to be looked at individually, a sentence of between three and four years would be appropriate for each of the 18 counts of forgery and one to two years would be appropriate for the false pretences charge.
His Honour then remarked that, if the applicant were to be sentenced on this basis, it would be oppressive. Accordingly, he said that a starting point of imprisonment for 15 years for these 19 offences was appropriate and he reduced this to 12 years by reason of the pleas of guilty.
According to the applicant’s argument this component of the sentence was manifestly excessive.
The nature and extent of the offending in this case places it at the high end of the spectrum for an ongoing series of fraud offences. The only case brought to the attention of the Court which is comparable is R v Telford[1] where the amount which was misappropriated was in excess of $22 million.
[1] (2005) 242 LSJS 33.
In the present case the offending extended over a lengthy period of time. Although the offending did not involve a breach of trust, it was planned and deliberate. Large sums of money were involved. As previously mentioned, approximately $8 million remains outstanding. The maximum penalty for each of the 18 forgery charges is imprisonment for 14 years. The maximum penalty for false pretences is imprisonment for four years.
In view of the seriousness of the offences and the weight which must be given to general and personal deterrence in this case, it is my view that the starting point of imprisonment for 15 years was within the discretion of the sentencing Judge. It is not arguable that this component of the head sentence was manifestly excessive.
Mr Mancini, for the applicant, argued that the sentencing Judge fell into error when he remarked that, if the matters were looked at individually, a sentence of between three and four years would be appropriate for the forgery offences. According to the argument, the offences differed in gravity and it was inappropriate to suggest that the same sentence would be imposed for all.
There is no merit in this argument. The sentencing Judge was doing no more than commenting in a general way on the sentence which might be imposed for an individual offence of this nature. The object in doing so was to explain that this was a case in which the principle of totality had to be applied, an exercise which was to operate in the applicant’s favour to a significant extent. In any event a sentence of three to four years would not have been inappropriate for any of these particular offences. A sentence significantly greater may well have been justified for a number of the offences if dealt with in isolation.
Next it was argued that the sentence imposed for the offence of obtaining a benefit by deception (“the 2007 offence”) was too high in all of the circumstances of the case.
When sentencing the applicant for this offence, His Honour said:
As to the 2007 offence, the fact that you embarked upon a similar course of deceptive conduct while you were on home detention bail for these other offences is especially outrageous. That circumstance also makes the offence an aggravated one, as I have already mentioned, and that takes the maximum penalty from 10 to 15 years.
Again, the amount involved is substantial, the deal you constructed was complex and a number of different people and companies were drawn into it. It was premeditated and deliberate and repetitive of your earlier conduct. The fact that it was motivated by some desire to provide for your son and your aged parents, whom you had already put into difficult positions as a result of your earlier criminal behaviour, does not in any way excuse the commission of the offence.
No criticism has been made of this assessment.
The sentencing Judge said that the starting point for his consideration of the sentence for this offence was imprisonment for five years. He reduced that to four years because of the plea of guilty. As the sentencing Judge pointed out, this was an “aggravated offence” under s 5AA of the Criminal Law Consolidation Act 1935 (SA) and the maximum penalty was imprisonment for 15 years.
The circumstances of the offence were similar in a number of respects to the offences in respect of which the applicant had already pleaded guilty. The victim was deceived by the making of false statements. Documents were also employed to deceive the victim. Although the value of the equipment purchased by the applicant with funds provided by the victim was $71,000, the amount approved for lending was $220,000.
In my view, it is not arguable that the sentence for this offence was manifestly excessive. I would reject the further argument that the total head sentence should have been reduced pursuant to the totality principle.
There is a further complaint that the sentencing Judge failed to have any or adequate regard to the fact that the applicant had been on home detention bail.
When fixing the penalty for the 2007 offence, the sentencing Judge said:
I start with a sentence of five years imprisonment. I reduce it to four years imprisonment on account of your plea of guilty, the period of six days or so you spent in custody, and the period you spent on home detention bail. I order that the sentence be cumulative on the sentence I imposed for the earlier offences.
The reduction on account of the matters referred to by the sentencing Judge was 20 per cent.
The sentencing Judge said he made some allowance for the time spent on home detention bail but he did not say how much he allowed on this account. If this detail is not included in the sentencing remarks, the appeal court’s task is made more difficult.[2]
[2] R v Carr (2008) 101 SASR 13 at [34].
There is no obligation on a sentencing Judge to reduce a sentence by reason of time spent on home detention bail. There is a discretion to do so if the sentencing Judge considers it appropriate.[3] If a court decides to allow a reduction it is relevant to take into account the period on home detention bail, the conditions of bail, behaviour whilst on bail and, if the period on home detention bail was lengthy, the reasons for any delay in bringing the matter to a conclusion.
[3] R v Malesevic (1999) 204 LSJS 32.
In the present case the period on home detention bail was approximately three years. As this is a lengthy period, it is necessary to look at the causes for the delay.
The applicant was released on home detention bail on 30 June 2004. He was committed for trial for the offences with which he was then charged on 1 May 2006 and arraigned in the District Court on 3 July 2006 when he pleaded not guilty to the charges. It was not until 18 July 2007 that he pleaded guilty to this series of charges. Before the sentencing hearing he committed the 2007 offence. He was remanded in custody on this offence on 3 September 2007 and was committed for sentence on 18 January 2008.
The period between arrest and committal for trial was approximately two years. It would appear from the Magistrates Court record that a major reason for the delay were adjournments granted on the application of the applicant. Throughout the period that the applicant was on home detention bail it suited him to continue with his self-employment. He was able to work long hours. The main restriction on him was a curfew in the evening.
The negotiations for the pleas of guilty on the main series of offences did not commence until a few weeks before the pleas were taken. The applicant’s present solicitor was the eighth solicitor to represent him from the time he was charged. It seems obvious that the applicant could have achieved a much earlier resolution of these matters.
There is also the consideration that he committed a serious fraud offence while he was on home detention bail. There was overwhelming evidence against the applicant on this charge. In the circumstances the 20 per cent reduction which was allowed in respect of both the main series of charges and the 2007 offence was generous. In my view it is not arguable that this Court should intervene so as to make a further deduction in the sentence by reason of the time spent on home detention bail.
Finally, it was argued that the sentencing Judge failed to have adequate regard to the amount of restitution. In view of the circumstances of the offending, the issue is not so much what restitution was made but rather the extent to which the loans were repaid under the loan agreements and how much remains outstanding. The sentencing Judge undertook a careful analysis of the transactions in this respect. The important consideration is the amount of the shortfall, an amount exceeding $8 million. There was no error in the Judge’s approach to this issue.
I would refuse permission to appeal against sentence.
NYLAND J: I would refuse permission to appeal for the reasons expressed by Duggan J.
BLEBY J: I would refuse permission to appeal. I agree with the reasons of Duggan J.