Regina v Carver

[2000] NSWCCA 321

CITATION:	Regina v Carver [2000] NSWCCA 321
FILE NUMBER(S):	CCA 60853/99
HEARING DATE(S):	10/07/2000
JUDGMENT DATE:	10 July 2000
PARTIES :	Regina Phillip Kingston CARVER
JUDGMENT OF:	Studdert J at 1; Bell J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0309; 97/11/0646
LOWER COURT JUDICIAL OFFICER :	Williams DCJ

COUNSEL :	Crown - CK Maxwell QC Applicant - SW Wilkinson
SOLICITORS:	Crown - S E O'Connor Applicant - Ford Gaitanis
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397; Regina v Todd [1982] 2 NSWLR 517; Regina v Mill (1988) 63 ALJR 117 Deeble (unreported) NSW CCA 19 September 1991
DECISION:	Leave to appeal granted; Appeal allowed in order to give the applicant credit for the period of pre-sentence custody.

IN THE COURT OF
CRIMINAL APPEAL

060853/99

STUDDERT J
BELL J

Monday, 10 July, 2000

REGINA v Phillip Kingston CARVER


JUDGMENT

1    STUDDERT J : I ask Justice Bell to deliver the judgment.
2    BELL J : The applicant seeks leave to appeal against severity of sentences imposed by his Honour Judge Williams on 8 December 1999 in the Sydney District Court. The sentences relate to convictions in respect of three distinct groups of offences. The first was described as “the Hilton indictment”. It contained two counts; (i) obtain money by deception contrary to s 178BA of the Crimes Act 1900 (“the Act”) which carries a maximum penalty of five years imprisonment and (ii) an offence shortly described as defraud whilst being an officer contrary to s 176A of the Act which carries a maximum penalty of ten years imprisonment.
3    In relation to count 2 in the Hilton indictment the applicant invited his Honour to take into account a further seven offences; six offences of obtain money by deception and one offence of defraud whilst being an officer.
4    On the first count in the Hilton indictment, his Honour imposed a minimum term of two years imprisonment, to commence on 16 April 1997 and to expire on 15 April 1999. An additional term of twelve months was specified. On the second count, his Honour imposed a minimum term of three years imprisonment, to commence 16 April 1997 and to expire on 15 April 2000. An additional term of two years was specified.
5    The offences disclosed in the Hilton indictment (and the matters on the Form 1 which his Honour was invited to take into account in respect of that indictment) occurred in July 1988.
6 The second series of offences were described as “the Wenkart indictment”. This indictment contained a single count charging the applicant with attempt to obtain money by deception contrary to s 178BA/344 of the Act. This offence carries a maximum penalty of five years imprisonment.
7    In relation to this indictment his Honour was invited to take into account five further offences on a Form 1; two offences of larceny, and one offence each of obtain money by deception, make false statement with intent to obtain financial advantage and falsely personate owner of stock. The offence the subject of the Wenkart indictment (and the offences set out in the Form 1) occurred in May and June 1992.
8 A third indictment was preferred against the applicant ex officio by the Director of Public Prosecutions. It contained one count of falsely and deceitfully impersonate the owner of stock. This offence was brought pursuant to s 184A of the Act and carries a maximum penalty of ten years imprisonment. The offence the subject of this indictment occurred in the period September/October 1992.
9    In relation to the last matter his Honour imposed a fixed term of imprisonment of eighteen months, to commence on 16 April 1997 and to expire on 15 October 1998.
10    The applicant has been continuously in custody since his arrest in Victoria on 19 January 1993. He was sentenced on 25 September 1995 by the Melbourne County Court to a term of seven and a half years imprisonment (in relation to which a non-parole period of four and a half years was specified) upon two counts of obtaining property by deception and one count of attempting to obtain property by deception. He appealed against the severity of that sentence. On 3 June 1996 the Victorian Court of Appeal allowed the appeal in part, the sentence in relation to the first count in the indictment was quashed and in lieu thereof a sentence of three years imprisonment was imposed. The outcome of the appeal produced an effective sentence of five and a half years imprisonment with a non-parole period of four years. At the completion of the non-parole period the applicant was extradited to New South Wales. The date of his extradition was 16 April 1997, being the date upon which a number of the sentences imposed by his Honour were expressed to commence.
11    The principal challenge advanced on the hearing of this application by Mr Strathdee QC, who appears with Mr Wilkinson on behalf of the applicant, is that his Honour failed to give sufficient weight to the principle of totality having regard to the length of time the applicant had served in custody in Victoria.
12    It is appropriate to refer briefly to the facts of the various offences and to place the matter in some chronological sequence. The Hilton indictment related to dealings between the applicant and Howard Hilton and a lady named Katherine Briscoe. In March 1988 the three agreed to jointly purchase an hotel. It appears that the applicant conducted all negotiations with the vendor and hotel broker. The first count in the Hilton indictment alleged that on or about 6 July 1988 the applicant dishonestly obtained for another person (Kymcard Pty Limited) a financial advantage, being the proceeds of a bank cheque payable to the Commissioner for Stamp Duties in the sum of $261,865.50 by deception, namely that the sum represented by the cheque did not belong to Hanover Developments Pty Limited.
13    The second count alleged that on or about 16 July 1988, being then an officer of Hanover Developments Pty Limited, the applicant defrauded Hanover Developments by effecting the transfer of $55,000 through an agent, Julie-Ann Willatt, into his business account.
14    The various offences which the applicant asked the sentencing judge to take into account on the Form 1 in the Hilton indictment largely related to instances in which the prisoner dishonestly obtained cheques from Katherine Briscoe for substantial sums of money by the deception that the proceeds of the cheque would be used in connection with one or other of the ventures to which she was a party. The total of the sums involved in relation to the Form 1 matters was some $472,000 or more.
15    The Wenkart indictment, was described by his Honour thus:
"Between 11 May 1992 and 10 June 1992 by various elaborate deceptions he attempted to obtain a sum of money which would have represented the sale of a property at 102 Grosvenor Road, Wahroonga which had been owned before he died by a person called Alfred Wenkart.
….

Suffice to say that he endeavoured to obtain the proceeds of the sale of a deceased estate in the name of Alfred Wenkart when he had absolutely no entitlement to do so whatsoever. This property at Wahroonga was extremely valuable."
16    The matter the subject of the ex officio indictment is described by his Honour at p 10:
"The indictment charged an offence contrary to
s 184A of the Crimes Act 1900 New South Wales. MIM Holding Limited is a company involved in mining exploration and other ventures. It is owned by shareholders who are issued share certificates which show the precise number of shares held by stock holders. The company has offices throughout the country and one is in Brisbane. One of those shareholders was a Sydney based company called Besso Nominees Pty Limited.

Besso Nominees Pty Limited was a company within the Bain & Co group of companies which operated from premises at 225 George Street, Sydney. Besso Nominees was the nominal owner of over 250,000 shares in MIM Holdings. On or about 25 September 1992 the prisoner obtained information in regard to the shareholding of Besso Nominees. He then wrote a letter to the shares registrar at MIM Holdings Limited in Brisbane and falsely pretended that Besso Nominees had changed its address from Sydney to a PO box in Brisbane."
17    It may be sufficient to observe that there were a number of similarities between this offence and the three matters for which the applicant was dealt with in Victoria. The judgment of the Victorian Court of Appeal was before his Honour. The leading judgment was given by Callaway J who noted that count 1 in the presentment charged that the applicant that on or about 1 October 1990 he dishonestly obtained $672,986.91 from the Bank of Melbourne by deception; count 2 charged that between 12 November 1992 and 15 January 1993 he dishonestly obtained a number of share certificates by deception; count 3 charged that between 26 November 1992 and 31 December 1992 he dishonestly attempted to obtain a number of share certificates by deception.
18    Dealing with count 1, Callaway J observed:
"By means of an elaborate fraud, the description of which occupied 21 pages of his Honour's sentencing remarks, the applicant organised the misappropriation of the statutory funds of Occidental Life Insurance Company of Australia Limited and Regal Life Insurance Limited. The value of the statutory funds was of the order of $70 million held at the relevant time by the Bank of Melbourne. The $672,986.91 dishonestly obtained by the applicant consisted of $200,000 in cash and the proceeds of a number of bank cheques. The depletion of the statutory funds rendered Occidental and Regal insolvent and they were placed under judicial management. The funds were ultimately restored as the result of a settlement of civil litigation that ran for approximately four months in the Supreme Court towards the end of 1991 and the beginning of 1992. In the meantime payments to many of the companies' 70,000 policy holders had been frozen."

19    His Honour noted of count 2 in the presentment in the Victorian proceedings that it charged that:
"The applicant, between 12 November 1992 and 15 January 1993, dishonestly obtained a number of share certificates representing 32,783 shares in Western Mining Corporation Holdings Limited, 4824 in National Australia Bank Limited, 29,000 shares in Woodside Petroleum Limited and 12,029 shares in CRA Limited from the companies described in schedule A attached hereto by deception, namely, by falsely representing that:
(a) he was the registered shareholder of the said shares described in the said schedule A; and
(b) that he was entitled to deal with the said shares described in the said schedule.”
20    Count 3 in the presentment related to three attempts to dishonestly obtain share certificates by deception.
21    It is to be noted that the applicant was charged with an offence of making a false statement to obtain a passport. This was a matter that was first dealt with by the St James Local Court on 30 March 1992 and on that occasion a fixed term of four months imprisonment was imposed. In relation to this the applicant lodged an appeal and ultimately that matter came on before his Honour Justice Blanch on the day following the applicant's extradition to New South Wales, namely, 17 April 1997. The applicant's conviction and sentence were confirmed; the sentence was expressed to commence from 16 April 1997 and, accordingly, to expire on 15 August 1997.
22    It will be necessary to return to this matter in the course of dealing with the submission that the applicant was not given credit for his pre-sentence custody.
23    That matter may have some significance in relation to a further ground of challenge relating to credit given in respect of pre-sentence custody. I will return to that in due course.
24    The principal ground of challenge is that Judge Williams failed to give sufficient weight to the principle of totality. In written submissions on behalf of the applicant, reference is made to the judgment of McHugh J in Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397. It is to be noted that his Honour observed:
"In order to comply with the totality principle the sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also any offences for which the offender is currently serving a sentence."

25    We were directed to the observations of Kirby J in the same case where his Honour noted:
" ... it has been recognised by this Court that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality ... "

26    The overall period of imprisonment to which the applicant is subject (including the Victorian sentences) amounts to eleven and a half years with an effective non-parole period of eight years. Mr Strathdee acknowledges the objective seriousness of the various offences but submits that such a sentence is suggestive of error. It is not submitted that the individual sentences imposed in relation to the New South Wales offences are manifestly excessive. Neither is it submitted that, viewed as a whole, the sentences, including the Victorian sentences, amount to a sentence which might be characterised as “crushing.”
27    Nonetheless, Mr Strathdee submits that when looked at in the light of the principle of totality the effect of the sentences exceeded that which was appropriate.
28    The total period of imprisonment viewed as one of eleven years with an eight-year non-parole period is a very heavy one. However, I am not persuaded that it is of such severity as to of itself bespeak error when regard is had to the number and gravity of the offences and the period over which they were committed.
29    I turn then to the way the sentencing judge approached the matter. He commenced his consideration of the principle of totality at p 17 of his reasons for sentence. He noted that, with the exception of the September 1992 January 1993 offences, none of the other groups of offences could be regarded as similar to the other; unlike the pattern of offending with which the Court was concerned in Regina v Todd [1982] 2 NSWLR 517. His Honour went on to cite the observations of the High Court in Regina v Mill (1988) 63 ALJR 117 and to distil the critical principles relating to totality of sentencing at pp 18-22 of his reasons. It is sufficient to observe that Mr Strathdee does not take issue with his Honour's analysis of these principles.
30    His Honour concluded that the offences the subject of the Hilton indictment and the Wenkart indictment should be dealt with by way of cumulative sentences. The ex officio indictment his Honour considered was similar to counts 2 and 3 in the Victorian presentment (and had taken place at a time broadly covered by the Victorian matters). His Honour dealt with that matter by way of a concurrent sentence which was subsumed by the sentence imposed in relation to the Hilton indictment.
31    After determining that it was appropriate to deal with the Hilton and Wenkart indictments by way of the imposition of cumulative sentences, his Honour went on to observe:
"Whilst a cumulative sentence may not offend any principle of totality nonetheless I should apply the principle of totality to the whole of the offending having regard to the sentences that have already been served and the period spent in custody."

32    His Honour noted that the offences were extremely serious and that they called for a significant degree of both general and specific deterrence. The amount of the New South Wales frauds and attempted frauds exceeded $2,000,000. He said that he approached the structure of the sentence on the basis of what would have been an appropriate sentence had a court been confronted with all the matters (including the Victorian matters) at the one time.
33    As I have noted, it is not submitted that his Honour erred in the approach that he articulated with respect to the principle of totality. The challenge with respect to that ground, in my view, has not been made good.
34    I come now to the first ground of challenge which relates to the failure of the sentencing judge to give credit for pre-sentence custody. Details of periods of custody served by the applicant (in relation to the Hilton indictment) are set out in carefully prepared written submissions filed on his behalf. This amounts to 127 days of custody. His Honour did not in terms refer to that period of pre-sentence custody in the body of his reasons for sentence. Mr Strathdee has referred us to the decision of this Court in Deeble, (unreported), 19 September 1991 in this respect.
35    On one view the 129 days of pre-sentence custody might be thought to have been taken into account in the decision of the sentencing judge to commence the first sentence on 16 April 1997. This was the date on which the applicant had returned to custody in this State following his extradition from Victoria. The first four months (which very nearly equates to 129 days) of his custody from 16 April 1997 were the subject of the sentence confirmed by Justice Blanch on 17 April 1997 to which I have already referred. However, we were informed by Mr Strathdee that Justice Blanch had in the course of dealing with the appeal indicated a view that he would have been disposed to backdate the sentence in the light of the time served by the applicant in Victoria had he the power so to do. The Crown accepted that this was so. In these circumstances I do not consider that we should approach the matter upon the basis that the pre-sentence custody was, as it were, balanced out by the four month sentence in respect of the Commonwealth offence.

36    Towards the conclusion of his Honour's remarks on sentence, Mr Wilkinson, who appeared for the applicant, raised the matter of the pre-sentence custody. The transcript records the following exchange:

“Mr Wilkinson: “Your Honour, there was pre-extradition custody of about four months, I think I indicated on the last occasion the actual dates and I'm just enquiring whether your Honour has taken that aspect into account.

His Honour: What was that in relation to?

Mr Wilkinson: Your Honour, I haven’t brought the actual dates down with me but I went through them with my learned friend for the crown on the last occasion. There’s a period, I think it’s approximately four months, of pre-extradition custody spent in respect of the Hilton matters.

His Honour: That’s not really a situation where I’d be prepared to alter the orders I’ve already made, Mr Wilkinson.”

37    The Crown submits that this passage demonstrates that his Honour did give attention to the matter of the pre-sentence custody. It seems to me, particularly in the light of his Honour's query "What was that in relation to?" that the matter is open to the interpretation that in the preparation of his remarks on sentence in a most difficult and complex matter, his Honour's attention may not have been directed to the period of pre-sentence custody.

38    For this reason, I would be disposed to orders which, firstly, grant the applicant leave to appeal and, secondly, allow the appeal in order to give the applicant credit for the period of pre-sentence custody. The orders I would propose are:
39    Leave to appeal in respect of the sentence imposed on the second count in indictment 1 (the Hilton indictment) should be granted and the appeal allowed in respect of that sentence. The sentence to be quashed and in lieu thereof a term of imprisonment of three years, to commence on 16 April 1997 and to expire on 15 April 2000. In relation to that sentence, I would propose that we decline to set a non-parole period by reason of the sentence to be set in respect of the offence the subject of indictment 2 (the Wenkart indictment).
40    In relation to indictment 2, leave to appeal be granted; the appeal allowed and the sentence quashed and in lieu thereof a sentence of two years and eights months, to commence 16 April 2000 and to expire on 15 December 2002. I would specify a non-parole period of eight months.
41    I would specify 16 December 2000 as the first date on which the applicant will be eligible for release on parole.
42    STUDDERT J : I agree with the reasons for judgment expressed by her Honour and the orders of the Court will be those proposed by her Honour.
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