Regina v Adam Eli MEYER

[2002] NSWCCA 451

Reported Decision: (2002) 135 A Crim R 438

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v Adam Eli MEYER [2002] NSWCCA 451
FILE NUMBER(S):	CCA 60351/02
HEARING DATE(S):	13/11/02
JUDGMENT DATE:	2 December 2002
PARTIES :	REGINA Adam Eli MEYER (Applicant)
JUDGMENT OF:	Wood CJ at CL at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/1316
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	PJP Power SC (Crown) P Byrne SC (Applicant)
SOLICITORS:	SE O'Connor RF Bergagnin & Co (Applicant)
LEGISLATION CITED:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Justices Act 1902
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321 Regina v Foster [2001] NSWCCA 215 R v Gallagher (1991) 23 NSWLR 220 R v JCE [2000] NSWCCA 498; 120 A Crim R 18 R v Parsons & Poore [2002] NSWCCA 296 R v Simpson (2001) 53 NSWLR 704 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17
DECISION:	Leave to appeal against the severity of the sentences granted; Allow the appeal; Sentences imposed in the District Court quashed and in lieu thereof the applicant is sentenced in each case to a term of one year and six months imprisonment with a non-parole period of one year, one month and two weeks; Each sentence is to be served by way of periodic detention and to commence on 25 May 2002; The first date upon which the applicant will be eligible for consideration for release to parole is 9 July 2003 or such later date as may be determined by reason of the applicant's imprisonment being extended pursuant to the provisions of the Crimes (Administration of Sentences) Act 1999

60351/02

WOOD CJ at CL
DOWD J
BELL J

Monday 2 December 2002

REGINA v Adam Eli MEYER

Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of Bell J. I agree with the orders proposed, and with the reasons of her Honour.

2 DOWD J: I have had the advantage of reading the draft judgment of Bell J with whose reasons and proposed order, I agree.

3 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the Sydney District Court on 17 May 2002.

4 The applicant was committed for sentence in accordance with the provisions of s 51A of the Justices Act 1902 on 18 January 2002 on three counts of making a false instrument with intent to induce another to accept the same as genuine contrary to s 300(2) of the Crimes Act 1900 (“the Act”), and three counts of using a false instrument with the intention of inducing another to accept the same as genuine contrary to s 300(2) of the Act. The maximum penalty provided for each offence is one of ten years imprisonment.

5 The applicant adhered to his pleas of guilty entered in the Local Court before the District Court on 18 April 2002. On that occasion an agreed statement of facts prepared by Senior Constable Arbinja was tendered, together with a substantial quantity of material forming the prosecution brief. The applicant and his father gave evidence at the sentence hearing. The sentencing judge stood the proceedings over to 17 May 2002 for sentence. On that date his Honour sentenced the applicant to imprisonment for a term of three years to be served by way of periodic detention. Each sentence was expressed to commence on 25 May 2002. His Honour gave short oral reasons and published a set of written reasons which canvassed the facts and the applicant’s subjective circumstances in greater detail. I shall refer to the latter as the “published reasons”.

6 The facts upon which the sentencing judge proceeded were set out in the published reasons. I extract those together with His Honour’s findings concerning a number of favourable subjective circumstances:

“In December 1999 the accused while working as an independent finance broker with Comlease AFG Limited received a finance application from a company called Ravelle Pty Ltd through a public accountant named Philip Cohen ostensibly to finance the purchase of sawmilling equipment in connection with a timber cutting business in Indonesia and Papua New Guinea. The application was ‘guaranteed’ by another company called Lameri Industries Pty Ltd which provided documents and accounts which showed its assets exceeded its liabilities by over $1.3 million dollars. In support of the application the accused also received what purported to be an invoice in the sum of $203,000.00 for the sale of the sawmilling equipment by M & C Pty Ltd to Ravelle Pty Ltd. Finance was arranged by the accused with the Colonial State Bank and after Ravelle Pty Ltd executed the necessary documentation to support the loan Colonial State Bank forwarded to the accused a cheque made out in the name of M & C Pty Ltd in the sum of $203,000.00 to pay for the equipment.
Subsequent to this application the accused acting on behalf of the company Lameri Industries Pty Ltd negotiated three further loans ostensibly to purchase further sawmilling equipment from M & C Pty Ltd. Each of those loan applications were approved and leasing agreements apparently executed in relation to the equipment supposedly being financed and the accused received three cheques (sic), two in the sum of $351,520.00 and one in the sum of $252,900.00 identifying the payee thereof as M & C Pty Ltd.

On the 5 January 2000 the accused at the request of Philip Cohen endorsed on the back of the cheque for $203,000.00, the words ‘Please pay Lameri Industries Pty Ltd for and behalf of M & C Pty Ltd’ and signed it M. Wells and on the same day personally deposited the cheque into account number 178875 in the name of Lameri Industries Pty Ltd at the Milsons Point branch of the Westpac Bank and subsequently on the 27 January 2000 again at the request of Philip Cohen endorsed the two cheques for $351,520.00 which were also payable to M & C Pty Ltd in a similar fashion and on the 28 January 2000 deposited them into Lameri Industries Pty Ltd Westpac Bank account number 178875. All the moneys deposited into the Lameri Industries account number 178875 by the accused were subsequently withdrawn and deposited in offshore accounts and never used to finance the purchase of any sawmilling equipment. While the company M & C Pty Ltd is a legitimate company, it only traded as a Recycling Centre and was not involved in the sale of sawmilling equipment nor did it have any dealing with either Ravelle Pty Ltd or Lameri Industries Pty Ltd at that time and the invoices in its name which were used in support of the three loan applications were not authentic documents and had not emanated from M & C Pty Ltd. While a director of M & C Pty Ltd was named Michael Wells he had not given anyone including the accused permission to use his name or to endorse the three cheques in the manner the accused endorsed them in this case.

As a result of these bogus transactions two finance companies were fraudulently induced to part with three cheques to the value of $906,040.00 and the Westpac Bank which cleared them through the Lameri Industries account ultimately had to carry that loss. While the accused received no part of the $906,040.00 he was paid commission apparently by the lending institution totalling $36,237.00 which I am told has been repaid in full to those two institutions.

From the material that has been placed before me in these proceedings and the accused’s plea of guilty to these six charges I am satisfied beyond reasonable doubt that the essential elements which go to constitute each charge have been proved and I convict the accused of each of them.

I will not turn to a consideration of the subjective material that has been placed before me in the course of these proceedings.

The offender is now aged 28 having been born on the 7 January 1974. He was brought up in a loving and stable environment though his parents separated when he was aged 5 from which time he remained with his mother. However he has remained in contact with his father until this day and both his mother and father are supportive of him at this time. He received a good education and after attaining his HSC in 1991 he graduated from the University of Wollongong with a Bachelor of Commerce degree in 1996. After travelling overseas for some months he returned to Australia in mid 1996 to work with his father in a finance broking business and by late in 1999 was working in that field on his own behalf and it is a result of his activities as a financial consultant in early 2000 that he now faces the abovementioned criminal charges. He has no prior criminal history and so up until this time was entitled to be regarded as a person of good character and this is exemplified by the testimonials which are contained in Exhibit 2 herein. It is clear that he has cooperated with everyone involved in the civil and criminal aspects of this matter and has undertaken to give evidence if required to do so in any civil or criminal proceedings that may result therefrom. In addition I am satisfied that he is now truly remorseful and contrite for the criminal conduct which gave rise to the six charges he faces in these proceedings and I note that he has entered his plea of guilty to all these charges at the earliest of opportunities and so is entitled to the maximum discount on sentence that such conduct deserves. To date he has spent no time in custody. Finally I note that it could be said that up until he let himself become involved in this criminal enterprise he was well on the way to becoming a successful financial consultant.”

7 At the commencement of the hearing of the application Mr Byrne SC, who appeared on behalf of the applicant, informed us that his written submissions which had been filed were prepared at a time when he understood that the learned sentencing judge’s reasons for sentence were confined to the short reasons that were delivered orally. Mr Byrne only become aware of the published reasons when he received the Crown Prosecutor’s written submissions. Having had the benefit of reading the published reasons Mr Byrne did not press some of the matters developed in the written submissions. Thus, in the written submissions Mr Byrne sought to establish that there was no basis for concluding that the applicant had been a party to the fraudulent scheme carried out by Lameri and Cohen. His role was limited to forging a false signature endorsing each of the three cheques. The applicant was not charged with any offence alleging that he was a party to the fraudulent scheme, but rather with making and using false instruments on each of the three occasions. It is apparent from the analysis of the facts contained in his Honour’s published reasons that he did not approach the matter of sentence on any other basis.

8 On the hearing of the application Mr Byrne developed two bases of challenge to the sentences:

(i) the sentencing judge erred by failing to consider an appropriate starting point for the assessment of the sentence to be imposed before allowing discounts in respect of the applicant’s early pleas of guilty and his assistance to the authorities.

(ii) the sentencing judge erred in failing to specify a non-parole period.

9 The Crown acknowledged that, in the light of the scheme of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) and the decision of this Court in R v Parsons & Poore [2002] NSWCCA 296, the sentencing judge erred in failing to give reasons (as he was required to do pursuant to s 45(2) of the Sentencing Procedure Act) for declining to set a non-parole period.

10 It is necessary to consider the first ground that challenged the sentences overall. In developing his submissions with respect to this ground Mr Byrne noted that the transcript of the sentence hearing did not include counsels’ addresses. He informed us that he had listened to the tape recording of the sentence hearing. This revealed that the judge had been invited by the applicant’s counsel to consider that the case was one that might be dealt with by way of community service order or by a sentence of imprisonment to be served by way of periodic detention and that the Crown had not contended to the contrary. Mr Byrne submitted that the sentencing judge acceded to the submission that periodic detention was a suitable disposition before fixing the term of the sentence. Mr Byrne contended that the judge had increased the length of the sentences imposed in order to take into account that they were to be served by periodic detention.

11 The Court received a copy of the recording of the submissions on sentence to which Mr Byrne referred. The Crown’s stance in the Court below was one that acknowledged that dispositions other than full-time custody were within the range of the exercise of his Honour’s discretion. Nothing in the submissions advanced by the Crown before the sentencing judge bear on the stance taken by the Crown on the hearing of this appeal which is to contend that the sentences imposed were within the proper exercise of discretion. In R v Wegener [1999] NSWCCA 405 James J observed that it has happened that this Court has had resort to parts of the record of the proceedings on sentence in order to explain or supplement a sentencing judge’s frequently brief remarks on sentence. His Honour noted that there may be a question as to the legitimacy of recourse to such exchanges in order to aid in the interpretation of the judge’s formal remarks on sentence. In this case the sentencing judge published reasons for sentence. I do not consider it appropriate to have recourse to the transcript of the submissions in order to assess the challenge that the applicant makes to the manner in which his Honour approached the determination of the sentence.

12 The starting point in sentencing an offender is s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) which provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. It is clear from his Honour’s reasons that he was of the view that no penalty other than imprisonment was appropriate having regard to the objective seriousness of the three sets of offences and to the need for appropriate weight to be accorded to considerations of general deterrence. Mr Byrne did not submit that his Honour erred in coming to this view.

13 His Honour was next required to consider the term of the sentence and to set a non-parole period for the sentence pursuant to s 44 of the Sentencing Procedure Act unless he decided to decline to set a non-parole period, in which case it was necessary for him to make a record of his reasons for coming to that determination; s 45(2) of the Sentencing Procedure Act. Having determined to sentence the applicant to a term of imprisonment for three years or less it was necessary for his Honour to consider whether pursuant to s 6(1) of the Sentencing Procedure Act that the sentence should be served by way of periodic detention. In Regina v Foster [2001] NSWCCA 215 Badgery-Parker J (in a judgment with which Giles JA and Greg James J agreed) noted that the failure of a sentencing judge to advert in the course of his or her reasons to this two stage procedure (fixing the term of the sentence and then considering alternatives to full-time custody) does not require a conclusion of error. However, his Honour observed at [33]:

“Failure to adopt the two stage procedure may be productive of error, and because it entails that risk, sentencing judges should be at pains, to proceed in the manner which the statute requires…”.

14 The terms of both his Honour’s oral and published reasons do not make clear that he approached the determination of the sentences by the two stage method mandated by the Sentencing Procedure Act. Thus, in his oral reasons he said this:

“In the special circumstances of this case I have come to the conclusion that while I need not subject you to a full-time custodial sentence that I must impose upon you some form of custodial sentence. It seems to me that an appropriate sentence to impose on you in respect of each of these offences is one of three years imprisonment but direct that they each be served concurrently and by way of periodic detention.”

And in his published reasons he said this:

“Financial consultants occupy a unique position of trust in the business world of this State and any breach of that trust by any one of them tends to undermine the integrity of the industry itself and undoubtedly will adversely impact on the innocent businessmen who has a legitimate need for loan monies to facilitate his business activities. To my mind for these reasons alone some form of custodial sentence is called for in this case.
…
It seems to me that in the special circumstances of this case I can just avoid subjecting the offender to a full-time custodial sentence and in lieu thereof subject him to a custodial sentence to be served by way of periodic detention.
In these circumstances the offender is sentenced to three years imprisonment in respect of each of these six offences and I direct that each of those terms is to be served by way of periodic detention and to be served concurrently with each other.”

15 The remarks are somewhat ambiguous but, to my mind, give weight to the contention that the judge determined, in the particular circumstances of this case, that a sentence of full-time custody was not required before he fixed the term of the sentence. I am reinforced in this view by the length of the sentences that his Honour imposed.

16 Mr Byrne submitted that when proper account is had to the applicant’s assistance to the authorities and to his early pleas of guilty an appropriate discount upon the sentence that might otherwise be imposed was of the order of fifty percent. Thus, he contended, the sentencing judge must be taken to have had a notional starting point of some six years imprisonment. Such an approach in the light of the objective seriousness of the offence and the applicant’s other subjective circumstances was said to bespeak error.

17 I do not accept that a discount of the order of fifty percent was necessarily called for in the circumstances of this case. Mr Byrne emphasised that the applicant had been fully cooperative with the police and had undertaken to give evidence against Lameri and Cohen. Further, he placed reliance on the applicant’s assistance to the Westpac Banking Corporation in the civil proceedings brought by it against Lameri and Cohen seeking to recover the funds lost as the result of their fraudulent activity.

18 While it was necessary to take into account the applicant’s cooperation with the authorities and his undertaking to give evidence against Lameri and Cohen I am not persuaded that those considerations dictated a discrete discount of the order of fifty percent of the sentence. A discount of fifty percent is a substantial discount. It is not to be understood that in every case in which an accused pleads guilty at an early stage, assists the authorities by frank admissions of his or her guilt and undertakes to give evidence on behalf of the Crown in proceedings against co-offenders that a discount of that magnitude will be allowed.

19 A case such as this one involving a relatively young man of unblemished record who succumbed to the temptation to act dishonestly in order to facilitate the growth of his finance-broking business and who thereafter acknowledged his wrongdoing and sought to do what he could to redress the wrong seems to me to raise in an acute way the considerations that Gleeson CJ discussed in R v Gallagher (1991) 23 NSWLR 220 at pp227 – 228. His Honour there spoke of the complex of interrelated considerations that, in some cases, make it difficult to separate out the discount to be given by way of assistance to the authorities from other subjective features. The applicant’s willingness to assist Westpac in its civil litigation is supportive of the overall case that he makes that he is contrite and desirous of re-establishing himself within the financial community as a reputable person. It is material relevant to the exercise of the sentencing discretion and is bound up with the evidence of his assistance to the police and the Crown but it is not material that would form part of a discrete discount pursuant to s 23 of the Sentencing Procedure Act.

20 The applicant’s criminality consisted in forging endorsements on each of three cheques drawn in substantial sums with the intention that the endorsement would be accepted as genuine and the funds paid in accordance with the endorsement. He was not said to be a party to the fraudulent scheme, although by his willingness to act dishonestly he facilitated it. He was a person with no prior convictions who made out a positive case that he was otherwise of good character. This included evidence of his voluntary service with his local surf life saving club and the Community Food Aid Foundation. He pleaded guilty at the earliest opportunity and cooperated fully with the authorities, undertaking to give evidence against Lameri and Cohen. The sentencing judge found that he was truly remorseful for his conduct.

21 In these circumstances I accept that a sentence of three years imprisonment (after proper allowance is made for the plea of guilty, assistance to the authorities and other favourable subjective features) is indicative of error. In the light of this consideration (and the remarks on sentence extracted above) there is force to Mr Byrne’s challenge that the learned judge decided given the strong subjective case that he would impose a sentence of periodic detention and, having come to that determination, fixed the term of that sentence. Such an approach is contrary to the scheme of the Sentencing Procedure Act.

22 It flows from the above that I consider that error has been identified and that a lesser sentence is warranted in law. In approaching the question of re-sentencing the applicant I take into account the contents of his affidavit sworn on 13 November 2002. The three groups of offences were serious offences. The learned sentencing judge placed considerable emphasis on the need for general deterrence taking into account the position of trust occupied by brokers in the financial community. I consider he was right to approach the matter in that way. After considering all the alternatives to imprisonment I am satisfied that no sentence other than one of imprisonment is appropriate.

23 Making allowance for the applicant’s early pleas of guilty, his assistance to the authorities (which is the subject of some further material in the affidavit to which I have referred) together with the favourable subjective factors that have been noted above, I consider that the appropriate sentence is one of imprisonment for eighteen months.

24 I see no reason to decline to set a non-parole period. I have considered the question of whether there are special circumstances pursuant to s 44(2) of the Sentencing Procedure Act to depart from the statutory proportion between the head sentence and the non-parole period. Sometimes special circumstances will be found to exist where it is desirable that an offender has a lengthier period on parole than the statutory proportion would allow. Special circumstances are not confined to considerations of this character; R v Simpson (2001) 53 NSWLR 704. This is not a case in which the applicant requires a lengthy period of supervision. It does not seem to me that the circumstance that this is the first time that he has been sentenced to a term of imprisonment or his other subjective circumstances alone or in combination amount to “special circumstances” such as to make it appropriate to depart from the statutory formula.

25 I next consider whether that sentence should be served full-time in custody or by way of periodic detention pursuant to s 6 of the Sentencing Procedure Act, or by way of a home detention order pursuant to s 7 of the Sentencing Procedure Act or whether the execution of the sentence should be suspended pursuant to s 12 of the Sentencing Procedure Act. Mr Byrne did not contend other than that a sentence (albeit a lesser sentence) to be served by way of periodic detention was the appropriate disposition in the circumstances of this case. I consider that to have been a realistic concession. In determining whether to direct that a sentence of imprisonment is to be served by way of periodic detention, or home detention or whether its execution is to be suspended, the Court is to have regard to the same range of considerations bearing both on the objective seriousness of the offence, the offender’s subjective circumstances and the differing purposes of punishment as is relevant to the determination of the term of the sentence; Dinsdale v The Queen (2000) 202 CLR 321; R v JCE [2000] NSWCCA 498; 120 A Crim R 18; R v Zamagias [2002] NSWCCA 17. I consider in the light of the applicant’s assistance to the authorities, early pleas and prior good character it is appropriate to direct that his sentences be served by way of periodic detention. I do not consider other alternative dispositions to full-time custody are appropriate to reflect the objective seriousness of the offences.

26 The orders that I propose are as follows:

1. Grant leave to appeal against the severity of the sentences;

2. Allow the appeal;

3. Quash the sentences imposed in the District Court and in lieu thereof the applicant is sentenced in each case to a term of one year and six months imprisonment with a non-parole period of one year, one month and two weeks; each sentence is to be served by way of periodic detention and to commence on 25 May 2002 ; the first date upon which the applicant will be eligible for consideration for release to parole is 9 July 2003 or such later date as may be determined by reason of the applicant’s imprisonment being extended pursuant to the provisions of the Crimes (Administration of Sentences) Act 1999.

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