R v Robert Wayne Collins No. SCCRM 96/159 Judgment No. 6096 Number of Pages 10 Criminal Law Appeal and New Trial

[1997] SASC 6096

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, MILLHOUSE AND LANDER JJ

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appellant charged on one information which contained both a major indictable offence and a minor indictable offence - both charges had to be dealt with in accordance with the procedures applicable to a major indictable offence - appeallant comitted in respect of both counts to the District Court - sentencing Judge reviewed the unexpired non-parole period from previous offences and extended it by 34 months - no risk that the appellant would be liable to twice serve a period of imprisonment - once committed to the District Court a person becomes subject to the jurisdiction of that Court and liable to any punishment that that Court is entitled to impose - learned sentencing Judge was not obliged to take into account the time served which had already been taken into account - the totality principle did not require a reduction either in the head sentence or the extension of the non-parole period - appeal dismissed. Criminal Law Consolication Act 1935 s195, 270a(3)(c); Summary Procedure Act 1921s5(5), 102(3), 107(3); District Court Act 1991s9; Criminal Law (Sentencing) Act 1988 s18A, 19(3), (4) & (5), 30(2), 32; Correctional Services Act 1982s73, 74A, 75, referred to. R v Adams (1995) 66 SASR 284, considered.

ADELAIDE, 4 March 1997 (hearing), 4 April 1997 (decision)

#DATE 4:4:1997

#ADD 28:4:1997

Appellant Robert Wayne Collins:

Counsel: Mr G Mancini

Solicitors: George Mancini

Respondent R:

Counsel: Mr D Whittle

Solicitors: DPP (SA)

Order: appeal dismissed.

COX J

1. This appeal should be dismissed. I am in general agreement with the reasons of Lander J.

MILLHOUSE J

2. I agree that the appeal should be dismissed.

LANDER J

3. The appellant was charged on the one information with one count of attempted false pretences and a further count of false pretences. In relation to the attempted false pretences he was charged that between 8 February 1994 and 16 March 1994 he attempted to obtain from Citibank Limited money to the amount of about $301,000 by falsely pretending that two documents, namely an Australian Taxation Office refund notice dated 20 October 1992 and an Australian Taxation Office Notice of Assessment dated 2 September 1993 were genuine.

4. In respect of the count of false pretences the particulars were that on or about 13 April 1994 he caused Adelaide Bank Limited to deliver money to the amount of about $15,000 to or on account of himself by falsely pretending that the two documents to which I have referred were genuine.

5. The first count the appellant and respondent agree is a major indictable offence and the second a minor indictable offence. I am not so sure that the first count is a major indictable offence but as the parties agreed that it was and as the appeal proceeded upon that basis I shall assume that to be so and proceed accordingly.

6. The maximum penalty for the second count i.e. the completed offence of false pretences is four years imprisonment. The maximum penalty for the first count, the attempt, is by virtue of s270a(3)(c) of the Criminal LawConsolidation Act two thirds of the maximum penalty prescribed for false pretences, two years and eight months.

7. Because the information contained both a charge of a major indictable offence and a charge of a minor indictable offence both charges had to be dealt with in accordance with the procedures applicable to a major indictable offence. That is because of s102(3) of the Summary Procedure Act which reads:- "(3) Subject to subsection (3a) if an information contains a charge of a major indictable offence, all charges of minor indictable or summary offences included in the same information will be dealt with according to the procedures applicable to major indictable offences and if the information includes a charge of a minor indictable offence, but no charge of a major indictable offence, all charges of summary offences included in the same information will be dealt with according to the procedures applicable to minor indictable offences (but the penalty that may be awarded for an offence is unaffected by the fact that the offence is dealt with according to procedures applicable to offences of a more serious class)."

8. The appellant was therefore committed in respect of both counts to the District Court. The jurisdiction of the District Court to deal with the matter arises from s9 of the District Court Act. That Court has jurisdiction to try any indictable offence and convict and sentence any person found guilty of any indictable offence, except those mentioned in s9(1). It incidentally has jurisdiction to try, convict and sentence any person charged with a summary offence, but only if that summary offence is charged in the same information as an indictable offence (s9(3) District Court Act.)

9. But for the committal to the District Court, which was required by the Summary Procedure Act, the minor indictable offence could have been tried and, upon his conviction, the appellant could have been sentenced in the Magistrates Court.

10. If the appellant had been sentenced for the minor indictable offence in the Magistrates Court, he could not have been sentenced to imprisonment for any period greater than two years. Section 19(3),(4) and (5) of the CriminalLaw (Sentencing) Act provide:- "(3) The Magistrates Court does not have the power to impose-- (a) a sentence of imprisonment that exceeds 2 years; or (b) a fine that exceeds $150,000.

(4) Subsection (3) applies whether the offence to which the sentence relates is a summary offence or a minor indictable offence.

(5) If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (3), the Court may remand the defendant to appear for sentence before the District Court."

11. As s19(5) shows the Magistrate could have remanded the appellant to appear before the District Court for sentence, if the sentencing Magistrate was of the opinion that a sentence in excess of two years ought to be imposed.

12. The appellant pleaded guilty in the District Court to both counts and pursuant to s18A of the Sentencing Act one penalty was imposed namely a sentence of imprisonment for two years and three months. The learned sentencing Judge said that but for his plea of guilty the sentence would have been two years and six months. The learned sentencing Judge made the sentences cumulative upon other sentences which the appellant was then serving.

13. In 1983 the appellant had been sentenced to imprisonment for two years which was suspended. In 1986 he was sentenced to be imprisoned for eight years in respect of sixty-two counts of false pretences.

14. In respect of that period of imprisonment the appellant was released on parole on two occasions. He was first released on 12 April 1990, having served just short of half the period for which he was imprisoned. Whilst he was on parole he committed thirteen offences of fraudulent conversion. The offences occurred between the period 24 July 1990 and 4 August 1991, involving some $197,000. He was not charged with these offences during this first period of parole, so the offences did not have the effect of triggering the cancellation of his parole under s75 of the Correctional Services Act.

15. His parole was cancelled for other reasons. The Parole Board determined that he had breached a designated condition of his parole. The date of the breach was 30 November 1991 and after the issue of a warrant for that breach his parole was cancelled and he was ordered to serve the unexpired portion of his sentence (s73 Correctional Services Act). The date upon which he commenced to serve that imprisonment was 23 March 1992. He applied to the Court to have a new non-parole period fixed and the Court of Criminal Appeal, after a successful appeal by the Crown against a non-parole period fixed by a judge of this Court, fixed a new non-parole period of two years nine months to date from 20 May 1992.

16. During this further time in prison the appellant was entitled to remissions for good behaviour.

17. He was released for the second time on 12 January 1994 about one month before he committed these offences. At the time he was released his parole was due to expire on 11 August 1995. He was arrested, charged with these offences and taken into custody on 22 April 1994.

18. On 14 October 1994 he was convicted of the thirteen counts of fraudulent conversion, which he had committed during the period of his first parole and on 18 January 1995 the appellant was sentenced in the District Court by Judge Taylor to seven years imprisonment with a non-parole period fixed at five years, to commence from 22 April 1994. On 11 September 1995 he was sentenced to ten months imprisonment for offences under the Corporations Law. That sentence for imprisonment was made concurrent with the other sentences.

19. Ordinarily the convictions, for which Judge Taylor sentenced on 18 January 1995, in respect of the fraudulent conversion offences would have triggered the balance of the sentence remaining unserved in respect of the 1986 offences (s75 Correctional Services Act).

20. However it was apparently perceived that, in the circumstances where the appellant had been returned to prison for a breach of s73, it would be unfair to the appellant to treat the offences as activating a period of imprisonment, which in fact he had already served. In these circumstances counsel for the appellant advised Judge Taylor in respect of those offences that the appellant should be treated as having "a completely clean slate"... "as far as previous sentences and non-parole periods are concerned."

21. Counsel for the Crown told Judge Taylor "the agreement we have reached, that at least as at 22 April 1994 we consider that Mr Collins' earlier 1986 sentence had expired." She also told the sentencing Judge that he "may think it convenient to backdate the sentence for these offences to 22 April last year."

22. It is probable that the authorities believed that, as the offences occurred before being released on the second period of parole, the parole ought to be suspended as provided for in s74A of the Correctional ServicesAct. Whatever the reason for the attitude taken by the authorities the agreement conveyed to the sentencing Judge was in the interests of the appellant and may be construed as an act of mercy on the part of the authorities. It may have been better, having regard to the fact that the offences which this Court is now considering were then pending, to have informed the Judge that they were advising him to act on a fiction and that in fact the non-parole had, in truth, not expired.

23. As I have already mentioned Judge Taylor ordered that the sentence of imprisonment date from 22 April 1994, the date the appellant was first taken into custody in respect of these offences. The time therefore spent in custody was credited to the appellant.

24. In respect of these offences the sentencing Judge was called upon to review the unexpired non-parole period which had been treated as expired by Judge Taylor.

25. That was so because having fixed the period of imprisonment in relation to these convictions the learned sentencing Judge was obliged, under s32(1)(b) of the Criminal Law (Sentencing) Act, because the appellant was subject to an existing non-parole period to review that non-parole period and extend it by such period as the learned Trial Judge thought fit. The unexpired portion of the 1986 sentence was at that time one year, four months and sixteen days. The learned Trial Judge extended the non-parole period by thirty-four months.

26. It was not unfair to have regard to the unexpired portion of the sentences in this case, because these offences were committed during the second period of parole, and without the complication of s73 of the Correctional Services Act operating . There was therefore no risk that the appellant would be liable to twice serve a period of imprisonment.

27. The appellant appealed to this Court upon the grounds: "1.. The sentencing package imposed by the learned Sentencing Judge was manifestly excessive in the circumstances.

2. The non-parole period set by the learned Sentencing Judge was manifestly excessive in the circumstances."

28. When the matter came before the Court the appellant sought leave to substitute other grounds. Leave was given and the grounds upon which the appeal proceeded were: "1. The learned sentencing Judge erred in determining that the maximum penalty for the second count was four years.

2. The learned sentencing Judge erred in refusing to take into account the period spent in custody by the appellant and by virtue thereof failed to exercise his discretion pursuant to section 30(2) of the Criminal Law Sentencing Act.

3. The learned sentencing Judge erred in fixing a non-parole period in excess of the sentence of imprisonment for the offences contrary to section 32(1)(b) of the Criminal Law Sentencing Act.

4. The sentence of the appellant for the period of 1 year 4 months and 16 days (for the asserted unexpired person of a previous parole period) was wrong in law and in fact by virtue of the following:

4.1 On 9 January 1995 the Director of Public Prosecutions had agreed in sentencing submissions in respect of the appellant before Judge Taylor in the District Criminal Court in matter Number 1362 of 1993 that the appellant's 1986 sentence had expired as at 22 April 1994.

4.2 On 18 January 1995 Judge Taylor sentenced the appellant on the basis of that agreement.

4.3 The Director of Public Prosecutions was estopped from representing to the learned sentencing Judge herein that the appellant was required to serve any unexpired period of parole in respect of the 1986 sentence.

4.4 The fact that the appellant's parole had been suspended by the Parole Board on 22 April 1994 pursuant to s74a of the Correctional Services Act.

5. The learned sentencing Judge erred in allowing a discount of 3 months for the appellant's plea of guilty.

6. The learned sentencing Judge erred in determining that the totality principle did not apply to the appellant.

29. The first ground of appeal refers to the fact that if the appellant had been sentenced by a magistrate in respect of the minor indictable offence he could not have been sentenced to more than two years imprisonment. It was said therefore that the learned sentencing Judge was wrong to approach this matter upon the basis that the maximum penalty was four years. In particular Mr Mancini argued that, because of the words in parentheses in s102(3) of the Summary Procedure Act, the learned sentencing Judge could not impose a greater penalty than could have been imposed by the learned Magistrate. Those words ensure, notwithstanding that a less serious class of offence is considered with a more serious class of offence, that the penalty is unaffected.

30. Those words do not have any relevance to the matters with which the appellant was charged. These is only one penalty for each offence. The penalty prescribed by statute does not vary depending on what class of offence the particular offence comes within. There is only one penalty and therefore it could not be affected by the class in which the offence was charged.

31. The Summary Procedure Act assumes that some statutes will prescribe differential maximum penalties depending upon the class of the offence which is charged.

32. Section 5(5) of the Summary Procedure Act provides:- "(5) If a law prescribes differential maximum penalties, then for the purposes of classifying the offence in accordance with the above rules, it will be taken to create separate offences which are (where necessary) to be separately classified in accordance with the above rules."

33. However ss195 and 270a of the Criminal Law Consolidation Act are not sections which provide differential maximum penalties and therefore neither s5(5) or the words in parentheses in s102(3) apply.

34. That would be enough to dispose of the argument but as it was put that the result could produce unfairness I shall deal with the other matters put.

35. Section 19 of the Criminal Law (Sentencing) Act is intended to restrict the ambit of the exercise of the sentencing discretion for magistrates, because ordinarily they will be sentencing for the less serious offences and they occupy the junior position in the judicial hierarchy. The section however contemplates that there will be occasions when the crime is deserving of a more serious penalty than can be given for the class which the offence has been ascribed. In those circumstances the magistrate will remand the matter to the District Court. That does not necessarily mean the prisoner will then be sentenced to more than two years imprisonment. That will be a matter for the exercise of the sentencing of the District Court judge.

36. A person is committed to the District Court if the information contains a major indictable offence either alone or together with a minor indictable offence or if charged with a minor indictable offence that person elects to be tried in the District Court (s107(3) Summary Procedure Act) or if a Magistrate believes that a sentence should be imposed greater than that which a Magistrate is authorised to impose (s19 Criminal Law (Sentencing) Act).

37. Once a person is committed to the District Court that person becomes subject to the jurisdiction of that Court and liable to any punishment that that Court is entitled to impose. The person has no right to be warned that the result of that committal leaves that person exposed to a risk of a higher sentence.

38. No one, because the offence is classified as a minor indictable offence for which that person has not elected to be tried in the District Court, has a right to be sentenced to less than two years imprisonment. The only right that person has in that regard is a right not to be sentenced by a magistrate to more than two years imprisonment in respect of that offence.

39. Parliament has recognised that in some cases a penalty of less than two years imprisonment would be insufficient recognition of the gravity of the offence. That is obvious by the provisions of s19 itself but it is even more obvious because the particular provision which makes the conduct the offence, namely s195 of the Criminal Law Consolidation Act which makes false pretences an offence, itself recognises the maximum penalty ought to be four years.

40. Moreover Parliament has recognised in every case in which a person is charged on the one information with both a major indictable offence and a minor indictable offence that the matter ought to be dealt with according to the procedures of the District Court. Where there are both major indictable offences and minor indictable offences a magistrate simply does not have jurisdiction to try and sentence. There is nothing unfair about that. Parliament has determined for good reasons, which need not be repeated, that one court ought to deal with all of the matters with which the offender is charged. Moreover for obvious reasons it has determined that the court which ought to have that jurisdiction is the court which has the jurisdiction to hear all charges. R v Adams (1995) 66 SASR 284.

41. In so far as the argument complains of unfairness it also must fail.

42. The second ground of appeal is entirely devoid of merit and can be disposed of quickly. The appellant claims that he was remanded in custody from 22 April 1994 until he was sentenced by Judge Taylor on 18 January 1995 not in respect of the matters for which Judge Taylor was dealing, but in respect of these matters. Therefore Judge Taylor was wrong to order the sentence he imposed to commence as at 22 April 1994. Of course the appellant stood mute at the time he was sentenced by Judge Taylor and did not seek to argue, contrary to the Crown's submission, that the sentence should not commence on 22 April 1994.

43. That is not surprising because he thereby became entitled to about nine months credit. However he now seeks to have that credit again. He argues that the learned sentencing Judge ought to have taken into account the period spent in custody between 22 April 1994 and 18 January 1995. In other words he wants the credit twice. It is to be observed that this startling proposition was not put to the learned sentencing Judge. At that time the appellant was content to obtain only that to which he was entitled. It was not put presumably because the learned sentencing Judge would have rejected out of hand any suggestion that Mr Collins receive a credit of nearly nine months served to which he was not entitled.

44. Section 30(2) of the Criminal Law (Sentencing) Act provides: "(2) Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may - (a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or (b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.

45. The subsection does not make it mandatory upon the sentencing Judge to do either of the matters contained in the subsection. The subsection enables the sentencing Judge to exercise his or her discretion to have regard to the period for which the defendant has been in custody or to date the commencement of the term of imprisonment from that date.

46. The learned sentencing Judge was not obliged to take into account the time served which had already been taken into account in fixing a sentence of imprisonment which was to be served cumulatively on this sentence.

47. Indeed it would not have been a proper exercise of the sentencing Judge's discretion to give the appellant credit for time served which had already been credited to him in the circumstances mentioned.

48. The point on appeal is entirely without merit and ought to be rejected.

49. Ground 3 of the amended grounds arises out of a misunderstanding of the legislation. Section 32 of the Criminal Law (Sentencing) Act relevantly provides:- "(1) Subject to this section, where a court, on convicting a person to an offence, sentences the person to imprisonment, the court must-- (a) if the person is not subject to an existing non-parole period - fix a non-parole period; (b) if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or (c) if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period - fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.

(2) Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole from a previous sentence of imprisonment, the court, in fixing a non-parole period under subsection (1)(a) must have regard to the total period of imprisonment that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve."

50. The appellant's argument was that the court could not extend the non-parole period by any period greater than the sentence which was imposed at the time of the review of the non-parole period. If that argument was right then a prisoner would never become liable to serve the term of imprisonment which remained unserved upon the previous sentence, because to ask the prisoner to do so would automatically mean that a non-parole period longer than the sentence of imprisonment just imposed would have been fixed. That would mean there would never be any point in reviewing the non-parole period.

51. In any event the argument overlooks s32(2). That subsection specifically requires the court to "have regard to the total period of imprisonment that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve."

52. I reject the third amended ground of appeal.

53. The fourth ground of appeal is particularly opportunistic. As I have already shown, the Crown, in the proceedings before Judge Taylor, was moved to act in a merciful way by allowing the Judge to understand that the previous sentence had expired. I have already explained the reasons for that.

54. The fact that the Crown had extended an act of mercy to the appellant did not disentitle the Crown from asserting on this occasion the true facts especially where these offences were committed during the second parole period. Indeed the appellant did not argue contrary before the learned sentencing Judge. The only issue before the learned sentencing Judge was the length of the unexpired sentence. No further point was taken on that matter before this Court. I would dismiss the fourth amended ground of appeal.

55. The fifth and sixth amended grounds of appeal can be collectively dealt with the previous grounds of appeal, because they all go to the appropriateness of the sentence itself.

56. As I have already recounted the appellant has had a significant number of previous convictions for offences of this kind. He has been sentenced to imprisonment on a number of occasions. In fact his record shows that he was first convicted of an offence of this kind in 1973. He has a number of other convictions. Moreover the appellant committed these offences within a month of having been released from jail in relation to convictions for offences of the same kind.

57. The offences were committed in circumstances where the appellant was seeking to purchase a house at Walkerville in Adelaide for $495,000. The appellant approached Citibank seeking to borrow $300,000 towards the purchase price which sum would be secured against the property. He produced the two documents the subject of the particulars, which emanated from the Australian Taxation Office but which he had substantially changed, to make it appear that he had a taxable income for the year 1992 of $225,023 and for the 1993 year of $356,052. Both representations were false.

58. Citibank accepted those documents and acted on the false representations contained in the documents and granted conditional approval for the loan. However for reasons that do not matter the purchase did not proceed and Citibank did not advance the sum of $300,000.

59. In relation to the completed offence in March 1994 the appellant contracted to buy a property at Springfield for $429,000 for a settlement on 11 May 1994. A deposit of $10,000 was payable by 6 April 1994. The contract provided that on payment of the deposit the appellant was entitled to occupation of the premises. The appellant approached the Adelaide Bank seeking to borrow $15,000 for which he offered his car as security. In support of his application he produced the two forged documents.

60. Relying upon those false representations the Adelaide Bank advanced $15,000 to him on the security of the car. The $15,000 was used to pay the deposit on the Springfield house therefore enabling the appellant to take up possession. In due course the Adelaide Bank realised on its security but it recovered $1,800 less than it had advanced.

61. The offences were committed brazenly and deliberately. They were committed in circumstances of greed. It was said that the offences were stupid but I am not so sure that that is right. There was no certainty that the dishonesty would be discovered, and as the facts show the dishonesty was not discovered prior to the advance of the $15,000 by the Adelaide Bank with a resultant loss suffered. It was also said that these offences were committed at a time when the appellant was depressed and when he was suffering relationship problems with his wife, and because of litigation in which he was involved he was anxious and edgy. That might be so but all of those reasons, perhaps apart from the matter of depression were reasons not to commit the offence rather than reasons for or explanations of the commission of the offences.

62. The appellant is now fifty-four or fifty-five years of age. He is in a second marriage and he has three children from his first marriage and a stepdaughter from his second. He has now been in custody in relation to these and the other offences to which I have referred since April 1994. He has apparently had a warm and supportive relationship with his family and he remains concerned about how his wife is to cope with his absence and effect upon his stepdaughter.

63. He is said to be an intelligent man who has worked in trades and in managerial capacities. In the second he has worked in entrepreneurial ventures in the construction and finance industries with some successes as well as some serious reversals.

64. Having regard to the timing of these offences and the circumstances in which they were committed and the appellant's previous record it is impossible to say that an immediate term of imprisonment should not have been imposed. As well, all of those three matters required the appellant to be sentenced to a relatively lengthy term of imprisonment. The term of imprisonment of two years and three months having regard to the matters to which I have referred was not manifestly excessive.

65. The plea of guilty was entered only six days prior to trial about three months after the matter was listed. The appellant was at all material times represented by a legal practitioner. Whilst he was entitled to some credit for his plea he was not, in my opinion, entitled to any more than was given.

66. The offences activated by law the previous unexpired sentence. Having regard to the unexpired portion of that sentence period it cannot be said that extending the non parole period by a period of thirty-four months, taking into account this sentence and the previous sentence, was manifestly excessive. The totality principle did not require a reduction either in the head sentence or the extension of the non-parole period.

67. In my opinion none of the grounds are made out and the appeal ought to be dismissed.