R v Watson
[2020] ACTSC 30
•28 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Watson |
Citation: | [2020] ACTSC 30 |
Hearing Date: | 12 December 2019 |
DecisionDate: | 28 January 2020 |
Before: | Burns J |
Decision: | See [59]–[69] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a false document – obtaining property by deception – pleas of guilty – general deterrence – significant anxiety and stress to the victims – serious example of this type of offending – reasonable prospects for rehabilitation |
Legislation Cited: | Building Act 2004 (ACT) Criminal Code 2002 (ACT), ss 326, 347 Crimes (Sentencing) Act 2005 (ACT), s 7 |
Parties: | The Queen (Crown) Andrew Gregory Watson (Offender) |
Representation: | Counsel Khazma (Crown) J Masters (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Marjason & Marjason (Offender) | |
File Number: | SCC 161 of 2018 |
BURNS J:
Andrew Watson, on 26 September 2019 you entered pleas of guilty to four counts of using a false document contrary to s 347 of the Criminal Code 2002 (ACT)
(the Criminal Code) and four counts of obtaining property by deception contrary to
s 326 of the Criminal Code.
Each offence carries a maximum penalty of 10 years' imprisonment, a fine not exceeding $140,000, or both. Your pleas were entered on the second day of your trial. This was, in effect, the second occasion that you were brought to trial for these offences.
You first appeared with regard to this matter in the ACT Magistrates Court on
14 February 2018. You entered pleas of not guilty and you were committed for trial to this Court on 25 June 2018. On 20 August 2018, the Crown filed an indictment containing eight counts. Pre-trial applications were then heard.
On 1 April 2019 the first trial commenced. A jury was empanelled and preliminary issues were addressed in the absence of the jury. On 2 April 2019, the second day of the trial, I raised the issue of latent duplicity in the Indictment. Subsequently, the jury was discharged and the trial was adjourned to allow time for the Crown to consider its position on that issue. On 17 April 2019, a new indictment was filed containing
76 counts. A subsequent application by you to stay the proceeding was dismissed.
On 25 September 2019, the second trial commenced and a jury was empanelled. In the course of your Counsel's opening address to the jury, he revealed that the central plank of your case was that the Crown had to prove that you were not acting on behalf of your company, ANDC Pty Ltd, at the time that you did those things which the Crown alleged constituted the offences.
After I indicated that I would direct the jury to focus on what they were satisfied that you had done and what your state of mind was at the time that you did it, the trial was adjourned until the following day. On 26 September 2019, the Crown presented a new indictment containing eight counts. You were arraigned and entered pleas of guilty on those counts.
The eight charges to which you entered pleas of guilty are rolled up charges. Each charge encompasses multiple transactions which, had the matter proceeded to trial, would have been subject to a separate charge. For this reason, the criminality involved in each charge is greater than would be the case if each transaction were the subject of a separate charge.
You are advantaged by the Crown proceeding on rolled up charges because the theoretical maximum penalty available to the Court is reduced, and any sentence imposed represents a complete concurrence of separate sentences that might otherwise have been imposed.
By any measure these were late pleas of guilty. I accept, nevertheless, that your pleas still had some slight utilitarian value. I will reduce by approximately five per cent the otherwise appropriate sentences because of your pleas of guilty. Had you entered early please of guilty, you could have expected a discount of about 25 per cent.
The facts
I will now turn to the facts. At the relevant times you were a builder. Through the company, ANDC Pty Ltd, you engaged in residential building construction work in
the ACT.
Both you and ANDC Pty Ltd held builders' licenses. Under the provisions of the
Building Act 2004(ACT), builders in the ACT are not legally permitted to engage in certain residential construction works in the ACT unless they are covered by
Home Owner's Warranty Insurance (HOWI). Building work cannot be commenced unless the builder obtains a Commencement Notice from a building certifier, and such a notice cannot be issued without that builder holding the relevant HOWI.
In March 2015 you applied, on behalf of ANDC Pty Ltd, for HOWI cover through the Master Builders Fidelity Fund. On 26 March 2015, ANDC Pty Ltd was refused cover. After ANDC Pty Ltd was refused cover and knowing that to be the case, you, acting on behalf of ANDC Pty Ltd, entered into contracts for ANDC Pty Ltd to build or renovate four separate residential properties in the ACT.
At that time, you were the sole Director and Secretary of ANDC Pty Ltd. You were, in effect, the company. To obtain a Commencement Notice for each build you submitted false HOWI certificates to ACT Metropolitan Certifiers, a building certifier. It is not alleged that you created the certificates and you have not revealed who did.
You told the author of a Pre-Sentence Report that an employee had altered the documents without your knowledge but, in the absence of any further explanation or information, this suggestion seems highly improbable. Your pleas of guilty acknowledge that you used the documents knowing them to be false.
The eight charges relate to four transactions. Each transaction has a charge of using a false instrument and a charge of obtaining property by deception. Each charge of using a false instrument represents a use by you on behalf of ANDC Pty Ltd of a false HOWI certificate to obtain a Commencement Notice to commence building on a project which ANDC Pty Ltd had contracted to undertake. ANDC Pty Ltd entered into each of those contracts after it had been refused insurance.
Counts 1 (SCCAN 3798/19) and 2 (SCCAN 3799/19) related to a contract
ANDC Pty Ltd entered into on or about 20 April 2015 to knock down existing premises and rebuild new premises on a residential site in Lyons. The owners of the site were Stephen and Andrea Hogarth. Between 27 April 2015 and 10 May 2016, the Hogarths paid ANDC Pty Ltd a total of $535,954.11 towards the cost of the works.
Counts 3 (SCCAN 3800/19) and 4 (SCCAN 3801/19) relate to a contract that
ANDC Pty Ltd entered into on or about 2 June 2015 to knock down existing premises and rebuild new premises on a residential site in Curtin. The owners of the site were Michael and Sonia Bursle. Between 5 June 2015 and 1 August 2016, the Bursles paid ANDC Pty Ltd a total of $488,161.00 towards the cost of the project.
Counts 5 (SCCAN 3802/19) and 6 (SCCAN 3803/19) relate to a contract ANDC Ltd Pty entered into on or about 3 September 2015 to undertake construction work at a residential site in Evatt. The owners of the site were Karyn and Tom Spollard. Between 4 September 2015 and 3 June 2016, the Spollards paid ANDC Pty Ltd a total of $159,953.50 towards the cost of the project.
Counts 7 (SCCAN 3804/19) and 8 (SCCAN 3805/19) relate to a contract ANDC Pty Ltd entered into on or about 12 September 2015 to undertake construction work at a residential site in Chifley. The owners of the site were Barbara and Peter Sullivan. Between 27 August 2015 and 29 July 2016, the Sullivans paid ANDC Pty Ltd a total of $259,499.24 towards the cost of the project.
Work on each of these projects appears to have been marked by delay and incompetence. These offences I note were difficult to detect. Your crimes only came to light after Ms Sullivan contacted the Master Builders Fidelity Fund to enquire about making a claim against the HOWI policy she believed was in existence.
At that point your crimes were revealed and “Stop Work” Notices were issued to
ANDC Pty Ltd on 30 August 2016 regarding the three then uncompleted projects at Curtin, Evatt and Chifley. In the course of the investigation which followed, you lied to investigators by asserting that you had paid for HOWI when in fact you had not. In one case, the Bursles project, they had paid ANDC Pty Ltd for the supposed cost of the insurance.
Objective seriousness
While ANDC Pty Ltd entered into each of the contracts, your relationship with that entity plainly demonstrates that you were to be the recipient of any net benefit derived from these offences. In assessing the objective seriousness of these offences, your Counsel submitted that I should find that none of the victims, being the other contracting parties, had suffered any financial loss.
This submission was based on the proposition that the HOWI only provided cover where a builder died, became insolvent or absconded. It did not cover poor workmanship or costs occasioned by delay. Your Counsel submitted that none of the insured events occurred in the present case. Such that none of the victims could have claimed on the insurance policy if ANDC Pty Ltd had been covered by such a policy.
It is fair to say that the present case can be distinguished from one where an offender fraudulently receives money with an intention of not providing the relevant goods or services. But I do not accept that the victims suffered no financial loss. In addition, your offences significantly affected the victims in other ways.
The gravamen of the offences to which you entered pleas of guilty is not causing a loss to another; it is not an element of the offence created by s 347 of the Criminal Code that the conduct of the offender caused a loss to someone else. The gravamen of the offence is dishonestly obtaining a gain.
It is similarly not an element of the offence created by s 326 of the Criminal Code that a loss is occasioned to another. The gravamen of that offence is the obtaining of property dishonestly. I accept that it would mitigate the seriousness of the present offences if you were to establish the victims had suffered no loss or negligible loss by reason of these offences.
However, it is incumbent on you to establish that fact as a matter of mitigation on the balance of probabilities. To focus on any potential loss by reason of the absence of insurance is too narrow an approach, focussing only on the precise means by which these frauds were effected. There is evidence that some building works were undertaken on the three projects where “Stop Work” notices were issued but the evidence does not establish that no significant loss was occasioned to your victims.
There is no evidence at all about the fourth project, the knock down and rebuild at Lyons, on behalf of the Hogarths. Therefore, you have not established that they suffered no significant loss by your crimes.
Leaving aside economic loss, it is very clear that your actions caused significant anxiety and stress to the victims who provided Victim Impact Statements. Construction of a home or major renovations to an existing home are major financial commitments for the vast majority of people, and are apt to cause anxiety and stress. Your offences plainly increased the stress and anxiety of the victims who provided the
Victim Impact Statements. I do not accept that the relevant effect of your offences on your victims for sentencing purposes should be confined to an inability to make a claim against HOWI.
Were it not for your use of the false HOWI certificates, ANDC Pty Ltd could not have undertaken any of the contracted works. Every fault or failing in the performance of the contract works is a consequence of that simple proposition. You have failed to demonstrate that the victims suffered no financial loss or other adverse consequence by reason of your offending.
With regard to some of your victims, you have compounded the consequences of your offences by telling your sub-contractors the lie that the victims had not paid you, resulting in the sub-contractors confronting the victims and demanding money.
In assessing the objective seriousness of these offences, I take into account that the amounts of money it was anticipated would be obtained and which were, in fact, obtained, were substantial.
The offending was planned, premeditated and sophisticated. Your offending did not result from a momentary lapse of judgement and you had ample opportunity to reflect upon what you were doing.
In your case, you tendered a report from Dr Ahmud Basseer Jeeawody, a psychologist who treated you in August and September 2016 and in January 2017. You commenced seeing Dr Jeeawody before your offences were identified by the authorities so that some weight may be given to the statements you made to him and his opinions based on those statements. Dr Jeeawody stated that in his initial assessment you were very distressed and teary with a subdued mood. You were concerned about your failing business and your financial position as well as family issues.
Dr Jeeawody wrote a report to Mr Jonathan Swale in the ACT Government Service on 10 September 2016 in which he said that your ability to make clear judgements over the previous 12-18 months was due to increasing pressure within your construction business. You complained of problems with your memory. He believed that you were also affected by past traumatic experiences, in particular, the circumstances surrounding the death of your sister.
Dr Jeeawody expressed the opinion that you were experiencing features of excessive fear and anxiety and related behavioural disturbances associated with uncertainties regarding your then situation including the investigation of your offences at that time. Dr Jeeawody stated that your acute anxiety could have led to the nature of the decisions that you took at that time.
Dr Jeeawody also wrote a report dated 27 June 2017 to the Senior Aviation Medical Officer at the Civil Aviation Safety Authority. He noted that you had made good progress and that you were no longer taking anti-anxiety medication.
In his report to this Court, Dr Jeeawody stated that you were very remorseful and you experienced extreme guilt feelings. He stated that, “a severe conviction” may have a detrimental effect on your emotional wellbeing and that of your family. I accept that during the period covered by the present offences you were suffering from stress and acute anxiety primarily arising out of your inability to profitably conduct your construction business. This is consistent with the evidence of the victims in the
Victim Impact Statements, indicative of disorganisation and avoidance of problems.
I accept that the stress you experienced and the resulting acute anxiety would have detrimentally affected your ability to make good judgements. The evidence of Dr Jeeawody, however, does not establish such a cogent link between your stress and anxiety, and your decision to enter into the contracts via ANDC Pty Ltd and to accept the payments from the victims, so as to significantly reduce your moral culpability for these offences.
I am satisfied that the present offences are serious examples of this form of offending. I would place them within the mid-range of such offences.
Subjective features
I will now turn to your subjective features. You are currently 53 years old. You are one of three children and you reported a happy childhood. You told the author of the
Pre-Sentence Report that when you were 14 years old, your sister was killed in a plane crash. Consequently, lengthy legal proceedings caused significant stress to your family.
You continue to have positive relationships with your parents and your remaining sister. You and your wife separated in August 2018 after 16 years of marriage. You continue to have an amicable relationship with her. You have two children who spend time between yourself and your ex-wife. You moved to Sydney in August 2018 and your family followed in January 2019. You reported no plans to return to the ACT at this time.
You have a positive and consistent work history. You originally trained as an accountant, but subsequently undertook a building apprenticeship with your father to enable you and your wife to work together in the building industry. You are currently in stable employment in Sydney.
You reported that in 2015, you experienced increasing stress due to work and family commitments leading to what you described as a “breakdown”. You were diagnosed with situational anxiety and received treatment by medication and also from psychologists. At the time of writing the Report, your mental health was described as stable. You reported no alcohol or drug issues that needed to be addressed.
The author of the Report noted that you stated that an employee had altered the documentation, by which I understand you mean the HOWI certificates, without your knowledge. As I said earlier, this is a highly improbable suggestion. You appear to have complained that you were misled into believing that you would not be charged if you surrendered your builder's licence which you did in or around November 2016.
You referred to the financial effect that this had on you. You also expressed your belief that none of the victims were disadvantaged by reason of your offences other than by delay in completion of their projects.
You told the author of the Report that the offences coincided with a period of increased stress and a decline in your mental health. You stated that you are embarrassed and described the matter as “a big misunderstanding”. You were assessed as at low risk of general reoffending.
I take into account the testimonials from Damien Drew, Brendan Tucker and
Melinda West tendered on your behalf. They all speak of the present offences as being inconsistent with your character as they knew it.
A statement prepared by your parents refers to you selling your home and borrowing money from them to pay creditors of ANDC Pty Ltd. It is difficult to know what to make of this statement in the light of the evidence in the Victim Impact Statements and in the absence of evidence from you.
I note that you have not previously been convicted of a criminal offence. Prior good character is entitled to some weight, but it must be recalled that in part, it was your prior good character and reputation which put you in a position to commit these offences.
Your motive for committing these offences was clearly a desire to retrieve the ailing financial positions of ANDC Pty Ltd and yourself. I hesitate to refer to this as greed, but it certainly was not need as that term is properly understood. Clearly, you stood to derive a financial advantage from the contracts that ANDC Pty Ltd entered into. It is difficult to assess the extent to which you feel true remorse for these offences as opposed to regretting the position which you now find yourself.
Your late pleas of guilty would suggest little remorse, but the defence outlined by your Counsel to the jury at the commencement of your second trial was highly suggestive of being the brainchild of your lawyers. I am satisfied that your late pleas were probably the result of the advice you received rather than indicative of a lack of remorse. It is, nevertheless, concerning that you have continued to attempt to minimise your culpability and to downplay the seriousness of these offences.
I accept that it is unlikely that you will reoffend particularly as you are no longer conducting your own business. As such, you have reasonable prospects for rehabilitation.
Further considerations
I have had regard to the purposes of sentencing as set out in
s 7 of the Crime Sentencing Act 2005 (ACT). The predominant sentencing consideration is the prevention of such offences by deterring others from committing the same or similar offences.
It is also important to denounce your conduct, to make you accountable for your actions and to recognise the harm done to your victims and the community. Rehabilitation remains an important consideration but cannot justify imposition of sentences that do not adequately address the other considerations to which I have referred. In my opinion, terms of imprisonment are the only just and appropriate sentences for these offences.
Despite the fact that you have no prior convictions, I am satisfied that at least part of these sentences should be served by way of full-time imprisonment. Anything less would not act as an effective deterrent to others in the building industry, having regard to the potentially large sums of money involved.
The charges of using a false document and obtaining property by deception corresponding to each contract, should be considered to be a single course of conduct such that complete concurrency of sentences is appropriate.
There must be some degree of cumulation between sentences imposed for separate contracts, but in structuring the appropriate aggregate sentence I am mindful of the need to consider the totality of the offending. Some distinction between the various offences of using a false instrument is warranted based upon the differing gains that were anticipated which I have based upon the contract price as set out in the false insurance certificates. Similarly, different sentences are appropriate for the individual offences of obtaining property by deception based upon the varying amounts obtained under the contracts.
Sentence
On Count 1 (SCCAN 3798/19), I record a conviction and you are sentenced to
17 months' imprisonment, which I have reduced from 18 months because of your plea of guilty, commencing today, 28 January 2020, and expiring on 27 June 2021.
On Count 2 (SCCAN 3799/19), I record a conviction and you are sentenced to
22 months' imprisonment, which I have reduced from two years because of your plea of guilty, commencing on 28 January 2020 and expiring on 27 November 2021.
On Count 3 (SCCAN 3800/19), I record a conviction and you are sentenced to
17 months' imprisonment, which I have reduced from 18 months because of your plea of guilty, commencing on 28 July 2020 and expiring on 27 December 2021.
On Count 4 (SCCAN 3801/19), I record a conviction and you are sentenced to
22 months' imprisonment which I have reduced from two years because of your plea of guilty, commencing on 28 July 2020 and expiring on 27 May 2022.
On Count 5 (SCCAN 3802/19), I record a conviction and you are sentenced to
13 months' imprisonment which I have reduced from 14 months because of your plea of guilty, commencing on 28 May 2021 and expiring on 27 June 2022.
On Count 6 (SCCAN 3803/19), I record a conviction and you are sentenced to
17 months' imprisonment which I have reduced from 18 months because of your plea of guilty. Commencing on 28 May 2021 and expiring on 27 October 2022.
On Count 7 (SCCAN 3804/19), I record a conviction and you are sentenced to
16 months' imprisonment, which I have reduced from 17 months because of your plea of guilty, commencing 28 August 2021 and expiring 27 December 2022.
On Count 8 (SCCAN 3805/19), I record a conviction and you are sentenced to
19 months' imprisonment which I have reduced from 20 months because of your plea of guilty, commencing 28 August 2021 and expiring 27 March 2023.
The aggregate sentence I have imposed is one of three years and two months' imprisonment, commencing 28 January 2020 and expiring 27 March 2023.
I order that 12 months of that sentence, commencing 28 January 2020 and expiring
27 January 2021, be served by way of full-time imprisonment. The balance will be suspended, and there will be a Good Behaviour Order for a period of
two years and three months, commencing on 27 January 2021.
There will be no conditions placed on that Good Behaviour Order other than the core conditions prescribed by statute.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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