R v Street
[2007] VSCA 185
•7 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 313 of 2004
| THE QUEEN |
| v |
| ROBERT ANDREW STREET |
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JUDGES: | VINCENT JA and SMITH and KING AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 December 2006 | |
DATE OF JUDGMENT: | 7 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 185 | |
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Criminal law – Sentencing - Obtaining by deception – Pleas of guilty – Mental health at time of offences – Mental health at time of plea of guilty – Period of offending – Cumulation and concurrency – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S Kirne | Solicitor to Commonwealth Director of Public Prosecutions |
| For the Applicant | Case and argument presented in writing |
VINCENT JA:
I agree that, for the reasons advanced by King AJA, the application for leave to appeal against sentence should be dismissed.
SMITH AJA
I agree that this application for leave to appeal against sentence should be dismissed.
KING AJA:
The applicant, Robert Andrew Street, by application dated 18 November 2004 applies for leave to appeal against his sentence of 4 November 2004, wherein the applicant pleaded guilty and was convicted of five counts of obtaining financial advantage by deception. The applicant was sentenced to 36 months’ imprisonment on counts 1, 2 and 4, and 39 months’ imprisonment on counts 3 and 5. The learned sentencing judge directed cumulation of the sentences with count 5 as the base sentence. His Honour directed an additional six months in respect of counts 1 to 4 (inclusive) be served upon the base sentence and upon each other making a total of 63 months’ imprisonment (5 years and 3 months) and imposed a minimum term of four years before the applicant would become eligible for parole. The maximum penalty for each offence is 10 years’ imprisonment.
Grounds of Appeal
The grounds of appeal as set out in the Full Statement of Grounds dated 17 May 2005 are:
Ground 1: The learned sentencing judge erred in finding that there was a “tension” between the evidence of Dr Sanghvi and that of other psychiatrists, and thereby gave insufficient weight to the evidence concerning the
applicant’s mental condition.
Ground 2: The learned sentencing judge erred in failing to place sufficient weight upon the applicant’s:
(i) Plea of guilty;
(ii) Remorse;
(iii) Co-operation;
(iv) Good character;
(v) Personal circumstances; and
(vi) Mental condition.
Ground 3: The learned sentencing judge erred in placing too much weight upon:
(i) General deterrence; and
(ii) Specific deterrence.
Ground 4: The total effective sentence, the individual sentences and the non-parole period are manifestly excessive.
Ground 5: The learned sentencing judge erred in failing to provide for sufficient disparity between the head sentence and the non-parole period.
The applicant in this case, elected to have the application for leave to appeal against sentence dealt with on the papers that he submitted and did not appear in person, or by way of representation, on the hearing of the appeal. The respondent was represented during the hearing.
The applicant has placed before the Court an outline of submissions dated 17 June 2005, a document headed further submissions on behalf of the applicant dated 2 June 2006, and finally a document headed further submissions on behalf of the applicant dated 11 October 2006.
The respondent has delivered an outline of submissions dated 19 July 2005, and an outline of further submissions on behalf of the respondent dated 9 November 2006. The applicant and respondent have both delivered a list of authorities.
Factual Background
The facts of the case are that the applicant, a financial advisor, obtained a total of $1,039,910 from five clients on the basis of misrepresentation as to the use that would be made of that money. A large proportion of the money was ultimately transferred to overseas persons or entities connected with what was referred to as a type of ‘Nigerian Advance Fee Fraud’
The type of fraud referred to as the Nigerian Advance Fee Fraud has been widespread since approximately 1990, and has been the subject of many warnings from police and regulatory authorities.
The basis of the Nigerian Advance Fee Fraud, is that an individual will usually receive some type of unsolicited contact concerning Nigeria or other African country, in which the author purports to have access to vast sums of money as a result of inheritance of former presidents, governmental error, recent political ferment in the country, or some other similar pretence. The author of the document usually claims to have the ability to access these vast sums of money, but is precluded from accessing that money, due to the requirements of providing much smaller sums of money to enable the larger sums to be released.
An offer is made to the individual that has been contacted, that in exchange for that person providing the smaller sums of money required to access the large sum, the person would receive a percentage of the vast sums of money that will be released. The percentage offered is usually sufficient to provide an extremely large profit to the person who puts forward the money.
After the initial money is paid there are usually complications that occur, which require still more payments of small sums, by comparison to the vast sums available, to release the money. These complications continue on until the person finally refuses to make any payments.
The applicant had been involved in this Nigerian Advance Fee Fraud for a lengthy period of time, almost a decade. Towards the end of his involvement there appeared to be some scepticism shown by the applicant, but that was quickly overcome by those operating the scheme, as is evidenced by the contents of facsimiles tendered in evidence.
On 13 March 2002 a facsimile was sent to the applicant from the “Presidential Payment Debt Reconciliation Committee” of the Federal Republic of Nigeria and signed by Rev Sam Kukah, which indicated that the contract fund of the applicant had outstanding payments, which required clarification as to some irregularities.
On 14 March the applicant responded to that facsimile and stated “I have had so many dealings with many so called CBN officials and spent close to $1m in fees for still no results” and refused to disclose any contract or personal details. In an exchange of facsimiles from the applicant to Kukah and from Kukah to the applicant during 15–16 March 2002, the applicant’s concerns were allayed, and the applicant provided Kukah with the information that was requested, which included the name of the applicant, name of his bank, his family company Tira Pty Ltd being the beneficiary, the contract and the contract amount being $65,000,000.00.
Over the next few months money was sent to the Nigerians to enable the $65,000,000.00 to be transferred to the applicant’s account. That money was obtained from clients and forms the basis of some of the charges to which the applicant pleaded guilty. The other charges relate to similar behaviour of the applicant at an earlier time, but not associated with the Nigerian Fraud. The offences range in time from September 2000 to July 2002.
Count 1
Between 1 September 2000 and 12 November 2001, the applicant obtained from Helen Wansborough two amounts that totalled $75,000.00, informing her that the amounts were to be invested in two investments $50,000.00 in “Finda Tracker” and $25,000.00 in “Mortgage Eraser”. The applicant claimed that “Finda Tracker” was a system for electronically monitoring stolen vehicles in London. “Mortgage Eraser” was a project that the applicant claimed was being developed through Tira Pty Ltd, a family company of which the applicant was a director, and a major bank to provide borrowers with cheaper housing loans. None of the money was placed in either of those investments. The amount of $50,000.00 was provided by cheque to Topco Investments, and no trace of that money has been found. The cheque for $25,000.00 was deposited into the family company of the applicant, Tira Pty Ltd (Tira account), and $20,000.00 was withdrawn the next day in a cash cheque. The applicant had been the financial advisor of Ms Wansborough since 1988. No money has been repaid.
Count 2
Between 8 August and 19 October 2001, similar advice was given to Helen Northey and she agreed to invest $30,000.00 in “Finda tracker” and $20,000.00 in “Mortgage Eraser”, a total of $50,000.00. The applicant had been Ms Northey’s financial advisor since 1995, in relation to her superannuation fund, and the money was from a redundancy package that she had recently received. Both amounts were deposited into the Tira account and subsequently withdrawn by a series of cash cheques. No money has been repaid.
Count 3
Between 26 April 2001 and 9 August 2002 Freda and Christopher Ados provided $50,000.00 to be invested in “Finda Tracker”, $40,000.00 to be invested in “Mortgage Eraser”, $124,910.00 to be invested in Watershed Wines and $40,000.00 in “Overseas Syndicate”, or as it was alternatively called the “Singapore Syndicate”, which the applicant claimed was a group of Singapore based investors who wished to invest $60,000,000.00 in Australia, through him. None of the money paid was invested in the projects specified. The applicant had been the financial advisor of the Ados family for a number of years. The $50,000.00 was deposited into the Topco Investments Pty Ltd Account, an account run by the applicant, and on the next day $30,000.00 was withdrawn from that account. The sum of $40,000.00 was deposited into the Tira Account, and on the same day the money was withdrawn in a series of cash cheques. No money has been repaid in respect of these amounts.
All of the above offences occurred prior to 13 March 2002, which was the date from which the Nigerian Fee Fraud matters were traced, being the faxes referred to earlier in this summary of the offences. The offences in count 3 spanned the time of offending both before and after the Nigerian Fee Fraud.
Subsequent to that date, as a result of Fraudulent statements as to the investments in which the money was to be placed, the applicant obtained further sums of $21,000.00, $80,000.00, and $23,910 from the Ados family to be invested in Watershed Winery. The money was used to pay various fees requested by Dr Kukah on behalf of the Nigerian government. The applicant also used some of those funds to purchase 11 mobile phones which he sent to Nigeria as a token of his gratitude at a cost of $16,353.90.
In August 2002 a sum of $40,000.00 was deposited into the Tira Account and on the same day a cash cheque for $26,000.00 was withdrawn. None of that money is traceable as having been sent to the Nigerian Fee Fraud. No money has been repaid.
Count 4
Between 7 February 2002 and 1 July 2002, David Warry invested three sums with the applicant that totalled $40,000.00 to be placed in the “Singapore Syndicate”. The first sum, an amount of $6,000.00 was borrowed to pay legal fees for a short term loan of 3-4 weeks in February 2002, that amount was transferred to the Tira account, and withdrawn by cash cheque. There is no material to indicate that this money was used in the Nigerian Fee Fraud. The next sum of $5,000.00 was borrowed for the same reason, and the amount of $5,000.00 was paid, it was accepted that this was part of the money paid to the Nigerian Fee Fraud. The applicant sought a loan of $50,000.00 from David Warry in June 2002, but Mr Warry was unable to provide any funds, and accordingly on 1 July 2002 took out a personal loan for $29,000.00, which he provided to the applicant. No money was repaid. The applicant had been the financial advisor or David Warry for many years and had previously provided reliable financial advice.
Count 5
Between 3 May 2002 and 13 May 2002 Brian and Tjitske Long provided $20,000.00 to the applicant to invest in “Finda Tracker” and $600,000.00 to invest in the “Singapore Syndicate.” The applicant had been the financial advisor to the Longs since 1992, when Long retired from Esso and the applicant set up a self managed superannuation Fund for them.
The first payment he received was for $20,000.00 to be invested in “Finda Tracker” in late April 2002. The money was deposited into the Tira account, and a cash cheque for $15,000.00 withdrawn that same day. On 11 May 2002 the applicant proposed that the Longs invest $600,000.00 in the Singapore Syndicate for a profit of $200,000.00 for four weeks investment of that money. On 13 May 2002 the Longs transferred the sum of $600,000.00 to the Tira account of the applicant. The sum of $506,845.12 was transferred to the Nigerian Fee Fraud scheme by the applicant the next day. The bank statement of the applicant also reveals other payments at that time from his account that relate to personal expenses, such as credit cards, housing and personal loans. No money has been repaid.
In relation to each of these counts the misrepresentations had a marked similarity, being that each person was told of a specific investment in which their money would be placed, the applicant guaranteed the return of the money in specific time periods, with interest, often of a substantial amount, varying from ten to 500 per cent. The applicant, on occasions created false documents to support his request for money and to explain delays in the return of money to the investors.
Ground 1
That the learned sentencing judge erred in finding that there was a “tension” between the evidence of Dr Sanghvi and that of the other psychiatrists, and thereby gave insufficient weight to the evidence concerning the applicant’s mental condition.
The learned sentencing judge examined the aspect of the “tension” between Dr Sanghvi and the reports of the various psychiatrists in the task of assessing the moral culpability of the applicant for the offences to which he had pleaded guilty. The “tension” to which his Honour refers, relates to the six reports tendered and the oral evidence given by Dr Sanghvi who was the applicant’s treating psychiatrist since November 1992 when he had been involved in an attempt at self harm. In those reports, and in his evidence, Dr Sanghvi found no evidence of any psychosis in 2002 or at any other time. Further he stated that neurological tests had given no indication of brain damage.
The applicant relies upon the material in the report dated 2 July 2004, in which Dr Sanghvi stated that he thought it likely that at the time of offending the judgement of the applicant was impaired because of his mental state, and that it may have a bearing on the offences. Later in that report Dr Sanghvi considered that the applicants mental illness was likely to have had a significant impact on his judgement and reasoning and that it compromised his ability to make sound judgements.
His Honour stated that:
… there is a tension between the finding by all psychiatrists whose reports have been discussed that you have not suffered from psychosis, and Dr Sanghvi’s opinion that your mental state is likely to have detracted from your capacity for sound reasoning and judgment. Considered objectively, your deceptive conduct appears deliberate and carefully considered by you. An example of this is your effort to disguise the sending of funds to Nigeria. By pleading guilty, you have admitted each element of the crimes you committed, including the necessary mental state, an ingredient of each offence.
It is clear that in respect of Dr Sanghvi’s report that he was not the treating psychiatrist at the time of the commission of these offences, and that he was referring to clinical notes which stated:
I understand that the commission of the offences with which he is charged commenced in September 2000. In November 2000, Mr. Street was admitted to Delmont under the care of Mr. Bill Pring. I have perused the hospital record relating to that admission which occurred in the context of an attempt at self harm, by monoxide poisoning (car exhaust) on a background of several weeks of heavy alcohol consumption and depression. It is likely that his judgement was impaired as a function of his mental state and may well have had a bearing on the offences. In reading the record of admission, there is no suggestion from Dr. Pring’s notes or the nursing entries that he was delusional at the time. In other words, the records do not indicate that in November 2000, he was out of touch with reality or labouring under false or irrational beliefs.
Further in his report of 15 July 2004 Dr Sanghvi stated:
The other important development is that, having reviewed all of the previous medical reports that have been made available to me of late, it has only recently occurred to me that there is a distinct possibility that Mr. Street has suffered a degree of brain damage, secondary to chronic and sustained alcohol abuse. This sort of damage, known in the medical literature as “Frontal lobe syndrome” may, if present, have a bearing on Mr. Street’s functioning with regard to the conduct of his investment business, and the decisions/omissions that led to the charges before the court.
There was a report from Dr John Buchanan, treating psychiatrist, who had been treating the applicant between 13 March 2001 and 20 March 2002, which indicated that the applicant was during that period, stable, maintaining his lithium, and not abusing alcohol.
It was clearly open to the learned sentencing judge to determine whether the moral culpability for the offending was reduced by the applicant’s mental illness,[1] and for those purposes he was entitled to examine all of the material available to him on the plea, including the psychiatrists reports and the depositions. His Honour did not indicate that he was reducing the applicant’s sentence on the basis of reduced moral culpability, and accordingly I accept that he rejected the evidence of Dr Sanghvi on this point. I find no valid basis for criticism of his Honour’s findings of fact on this point as the evidence upon which he relied clearly supported that finding.
[1]R v Tsiaras [1996] 1 VR 398
Ground 2
It is submitted that the learned sentencing judge erred in failing to place sufficient weight upon the applicant’s:
i. Plea of guilty;
ii. Remorse;
iii. Co-operation;
iv. Good character;
v. Personal circumstances; and
vi. Mental condition.
The applicant has suffered from bi-polar disorder for a long period of time. On 8 November 2002 the applicant was taken to Maroondah hospital after attempting self harm. Dr Sanghvi became his treating psychiatrist and took a history of mood disorders since the late 1980s. In the 1980s the applicant was privately wealthy having built up his financial advisory business, before the stock market crash of 1987 caused the applicant to lose that wealth, and ultimately in 1990 enter into a part 10 scheme of arrangement with his creditors for payment of his debts. In 1992 the applicant’s marriage ended, and he began to abuse alcohol, further it was indicated that was the year that he first became involved in the Nigerian Fee Fraud Scheme.
At the time of Dr Sanghvi attending the applicant, he was diagnosed with major depression and referred to Dr Frei for treatment of alcohol abuse. The applicant had been treated between December 1990 and October 1994 by a Dr John Gill, psychiatrist, who diagnosed, high anxiety, depression and bi-polar disorder. The applicant had been receiving on going treatment with lithium and other antidepressants, which were constantly monitored by his treating doctor, Dr Cordell Vardy. There were other treating psychiatrists over the time from 1990 to 2002. This information was contained in reports submitted to the sentencing judge, and placed before this Court.
In respect of the complaint that his Honour had not placed sufficient weight upon the mental health factors, the learned sentencing judge referred to his mental health and its consequences on a number of occasions in his sentencing remarks. His Honour referred to the reports that had been presented to the Court, the diagnoses that were made, considered and referred to the applicant’s history of mental illness, the time at which it commenced, his current mental health status as well as his physical health.
His Honour listed the arguments of counsel for the applicant on the plea which included, his plea of guilty, his depressive and bi-polar mental health condition, that he had lost his career and livelihood, had provided an undertaking not to practice as a financial advisor in the future and his remorse, all of which, counsel for the applicant submitted, meant that a crushing sentence should not be imposed. His Honour considered the submission of counsel for the applicant that any form of actual imprisonment upon him would be crushing.
In assessing that matter the learned sentencing judge stated that he had to consider the other aspects that need to be counterbalanced against those factors which included, the breach of trust, the fact that the victims were long time friends and clients, the duration of the offending, the number of separate transactions involved in the deception, the total of money involved, the sophisticated and calculated nature of the false representations made to the clients, the steps taken to ensure that no one would be able to discover that this money was being transferred to Nigeria, the fact that over $100,000.00 of that money had been for personal use, and that the applicant had been overly generous with the money that was obtained from the clients. Finally he also took into account, in the balance, that the medical evidence did not support the argument that the applicant’s mental condition was causally involved in the offending.
It is entirely appropriate for a judge to balance the various competing factors of mitigation, the offending and circumstances of aggravation in determining the appropriate sentence, and I see no error in the matters that were taken into account in this balancing exercise nor in the circumstances of his Honour’s consideration, or weighing up, of those matters.
His Honour then turned to deal with various matters relating to what the Court of Appeal stated in DPP v Bulfin,[2] wherein Charles JA stated that the issue of general deterrence in crimes of this nature was of importance, but that specific deterrence was not as significant. His Honour agreed with and adopted the comments made in that case. His Honour then went through the submissions of counsel on the issue of both general and specific deterrence, referring to R v Marshall,[3] R v Yaldiz,[4] R v Tsiaras and R v Ulla.[5] His Honour set out the five points of considerations for sentencing in respect of serious psychiatric illnesses, and said that he accepted that the applicant had suffered from a bi-polar affective disorder for longer than ten years and certainly at the time of the offences.
[2] [1998] 4 VR 114.
[3] [2000] VSCA 167.
[4] [1998] 2 VR 376.
[5] (2004) 148 A Crim R 356.
His Honour stated, quite correctly, that this psychiatric illness provided the basis for some moderation, but not elimination of, the weight given to general and specific deterrence. He also referred to the comments of Charles JA, in Bulfin, to indicate that the importance of specific deterrence in cases of this nature was also reduced.
His Honour referred to the applicant’s plea of guilty and the cooperation that he had afforded to investigators from ASIC as being matters that would mitigate the sentence that he would otherwise receive. He determined that the prospects of rehabilitation for the applicant were reasonably good.
In relation to this matter the applicant in further submissions, drawn by himself, argued that the learned sentencing judge had erred in having regard to the principles stated in Bulfin. It appears that this is submitted on the basis that the plea in Bulfin was a late plea and that his had been a plea at the earliest opportunity. This is a misunderstanding of the principle upon which his Honour relied in respect of that case. The principle related to the issue of general deterrence in respect of white collar crimes, and the lesser relevance of specific deterrence. It is, as stated by Charles JA in Bulfin, expected that those involved in crimes of this nature have no prior convictions, and occupy positions of trust which give them the ability to easily abuse their position. Further that this type of crime will often involve a careful, calculated, course of conduct over a long period, repeated acts of dishonesty, substantial amounts of money and frequently tragic losses to a number of relatively small investors. It is clear that his Honour dealt with the issue of specific and general deterrence in accord with the established authorities and I see no error in his findings.
The applicant in his further written submissions argues that the proportion of the maximum penalty that the judge imposed was one that was disproportionate to the maximum sentence available, and indicated that he had placed insufficient weight upon the issues referred to in ground 2, being the factors of mitigation.
Once again, the applicant has misunderstood the matters upon which he has based this further submission. The maximum penalty is ten years for each offence to which he pleaded guilty. The learned sentencing judge has in fact sentenced the applicant to either 36 or 39 months out of a maximum sentence of 120 months that was available on each charge, not 63 months as stated in the applicant’s submissions. That is well within the range of appropriate sentences, in respect of the circumstances of the offences, to which the applicant has pleaded guilty.
The applicant has further submitted that an early plea such as his should attract a discount of at least 25 per cent and relied upon the decision of Fisher v Police[6] wherein his Honour stated -
Secondly, the sentence of 12 months imprisonment must be the figure reached after credit for the appellant’s guilty plea. A discount of 25 per cent would have been reasonable in these circumstances. That suggests that the magistrates starting point must have been at least 16 months imprisonment. Such a starting point is, in my respectful view, plainly unreasonable.
Thirdly a sentence of 12 months imprisonment seems inappropriate when one has regard to the appellant’s antecedents, good character and personal circumstances to which I refer below. Those circumstances indicate that the appellant’s conduct may be regarded as an aberration by a person of otherwise good character.
[6] (2004) 154 A Crim R 511, 520.
The circumstances of that case were that the appellant had no prior convictions, the maximum penalty for the offence was two years’ imprisonment, and it was a one off incident in which the assault involved was placing a person in fear. The court found that the appellant had no intention to place the person in fear, but was reckless as to his words, and affected by alcohol.
Under those circumstances the court was indicating that the sentence that would have been imposed for the single offence in those circumstances without the plea of guilty was two thirds of the maximum penalty available, and on a plea the court imposed a sentence of fifty per cent of the maximum.
This case does not offer the applicant any real assistance, as there is no set percentage by which a sentence is to be reduced. The reduction in sentence or sentence discount is part of the process which the learned sentencing judge is obliged to conduct and is a factor that must be considered like all other factors. Whilst early pleas are to be encouraged there is no requirement that a judge specify the percentage of discount that he or she is giving an applicant for an entry, or early entry of that plea of guilty.
In this case his Honour indicated that he was giving a discount for the various matters brought to his attention with which he agreed, being the applicant’s plea of guilty, his co-operation with ASIC, and his remorse, together with an appropriate reduction in respect of general and specific deterrence.
In relation to ground 2, I am of the view that his Honour has placed the appropriate weight on the matters set out in that ground and that the learned sentencing judge’s determination of the appropriate sentence did not miscarry.
Ground 3
It was argued that the learned sentencing judge erred in placing too much weight upon both general and specific deterrence, the further submissions by the applicant rely upon the percentage of the maximum penalty to which he had been sentenced, a matter that I have dealt with previously and a criticism of the instinctive synthesis approach to sentencing. The criticism is that it leads to inconsistency in sentencing and offends the principle of equality before the law. This is not a sustainable argument, in my view, as the process of sentencing in this State is not one of mandatory sentences for offences and the process must rely upon the intuitive synthesis approach of the judiciary.
As I have already indicated the sentences imposed on each of the counts was in my view well within the range of sentences appropriate for the circumstances of the offences and the personal, medical, physical and social circumstances of the applicant. Accordingly I am unpersuaded that his Honour failed to ameliorate the sentences he imposed upon the applicant in the manner that he stated.
This ground must fail
Ground 4
The ground is that the sentences were manifestly excessive in all the circumstances and did not reflect the principles of proportionality and moderation in the imposition of the sentences. The applicant relies upon the decision of the Court in R v Pope[7] where Callaway JA stated:
… General deterrence had an impact upon sentence, but he acknowledged that that impact was diminished by aspects of the applicants personality. At the time of the offences the applicant was taking medication for depression and it was clear that he had significant, ongoing psychological problems, in particular an incapacity fully to distinguish between fantasy and reality. There were, however, no indications of any major psychiatric illness such as bi-polar affective disorder.
[7] (2000) 112 A Crim R 588, 596.
The applicant relies upon the fact that the learned sentencing judge accepted the undisputed evidence that he suffered from, and continues to suffer from, bi-polar effective disorder, for a period in excess of ten years, and compares the case of Pope, which resulted in a reduction of sentence, as justifying that a bi-polar affective disorder should attract a greater discount than one where there is no major psychiatric illness.
In Pope the application related to the imposition of the minimum term which the court found was in error, in that the judge had expressed that the high head sentence of 11 years was imposed to protect the community from the applicant, and there was no reason to explain why the judge imposed a minimum term of nine years. As a result the sentencing judge was considered to have made an error and the whole of the sentence fell to be resentenced.
The situation is that in Pope the applicant was in fact as the court said, unable to fully differentiate between fantasy and reality, which would affect his moral culpability for the crimes committed, a fact that the sentencing judge, rightly, in this case did not accept. In my view there is nothing in the point of moderation and the real complaint of the applicant is more a matter of the proportionality of the individual sentences imposed and the totality of those sentences.
The principles of totality dictate that appropriate individual sentences should be imposed, the judge should then examine those sentences having regard to the principles of totality. Such sentences are then made concurrent, part cumulated or wholly cumulated, depending on the various factors relevant to the crimes charged, together with, ensuring that the overall sentences imposed are not in breach of any relevant sentencing principles including the principle of totality.
In light of the factors to which his Honour referred, including the length of time over which the offences occurred, the number of persons involved and their relationship with the applicant, the relatively sophisticated means used to deceive those persons (including the production of various false documents) and the fact that some of that money had been for personal use, when tempered with the ameliorating aspects of his personal history, plea of guilty, remorse, co-operation, mental and physical health, produces, in my view, no error in the individual sentences imposed nor in the cumulation that his Honour directed in respect of the various counts.
Ground 5
The applicant claimed that there is a disparity between the non–parole period and the head sentence such that it demonstrates error. He relies upon a passage of Pope in which Callaway JA stated:
There is nothing about the facts of the present case to explain why the Judge was led to think that justice required the applicant to serve at least nine years of an 11 year sentence before becoming eligible for parole. As I have endeavoured to explain, the reasons he gave for imposing the head sentence militated against the conclusion. I am therefore persuaded that error is shown.[8]
[8]Ibid 597.
What should be noted is that in the passages prior to this statement relied upon by the applicant Callaway JA stated:[9]
In R v VZ … the court as presently constituted reviewed some of the principles applicable to non–parole periods. I do not repeat what we said on that occasion. I simply mention two salient points. First we referred to what Winneke P called in Mulvale … the need for:
‘discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn rehabilitated under conditional supervision’
Secondly, we said that no mechanistic or formulaic approach could be taken to the fixing of a non parole period. Because it is the minimum time that the judge determines justice requires that the prisoner serve having regard to all the circumstances …, it cannot be fixed automatically by taking two years, or one third or one quarter, off the head sentence. … All the relevant factors have to be taken into account and they may be many and varied.
[9]Ibid 597.
The disparity between the head sentence and the minimum sentence whilst not lengthy does not demonstrate error on the part of the learned sentencing judge and nothing in the material persuades me that his Honour has erred in the fixing of the minimum and maximum terms. The applicant states that the learned sentencing judge erred in adding a proviso to the back of the presentment which included comments informing the Commissioner of Corrections of the applicants particular medical circumstances. He argues that they are factors that should have been taken into account in providing a larger disparity between the head and minimum terms. It should be noted that the learned sentencing judge has merely complied with a practice that has been established in the courts to ensure that persons who have any medical condition, and who are incarcerated for the first time, have any immediate medical needs met upon their reception into the corrections system. It is unfortunate that many of the persons being imprisoned for the first time have either a significant physical or mental health issue, which has been made known to the judge, but may be unknown to the correction authorities. To ensure that the prisoner receives whatever treatment and medication he may require upon admission such comments, and often the reports themselves, are sent to corrections on the same day as the prisoner is sentenced.
The prisoner has relied upon correspondence between the office of David Grace QC, solicitor, on his behalf and the Office of Corrections to demonstrate, I presume, that he is not receiving adequate treatment from the Department of Corrections. The exchange of correspondence submitted indicates that his medical needs are currently being met by the department.
Accordingly in my view this ground has not been made out.
I would dismiss the application for leave to appeal against sentence.
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