Regina v Doolin

[2001] NSWCCA 139

CITATION:	Regina v Doolin [2001] NSWCCA 139
FILE NUMBER(S):	CCA 60787/00
HEARING DATE(S):	11 April 2001
JUDGMENT DATE:	11 April 2001
PARTIES :	Regina v Seamus Padraig Doolin
JUDGMENT OF:	Wood CJ at CL at 24; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97//21/2210
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	(A) In Person (R) M Grogan
SOLICITORS:	(A) In Person (R) S E O'Connor
CATCHWORDS:	Sentencing - conspiracy to defraud in commercial transactions by falsifying commonly used identification and supporting documents - deterrence - parity - significant differences in positions of co-offenders
LEGISLATION CITED:	Crimes Act 1900 s 178BA
CASES CITED:	Nil
DECISION:	Leave to appeal granted - Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

WOOD CJ at CL

SMART AJ

Wednesday, 11 April 2001

JUDGMENT

1   SMART AJ: Seamus Padraig Doolin seeks leave to appeal against the severity of a sentence of imprisonment for twenty-one months commencing on 30 November 2000 with a non-parole period of nine months imposed in the District Court in respect of a charge that between 7 April 1995 and 29 November 1995 he, with Michael Paul Comerford and Peter Francis Hall, conspired together amongst themselves to cheat and defraud the Australian Guarantee Corporation Limited of money.

2   The applicant pleaded guilty to that charge on 9 August 2000 just before his trial was about to start. His co-conspirator, Comerford, had pleaded guilty on 7 August 2000 and had undertaken to give evidence against the applicant. That evidence was damaging. Comerford was sentenced on 7 August 2000 to twelve months periodic detention, a considerable discount being given for what was regarded as an early plea and, principally, for assistance given.

3   The facts are summarised in the judge's remarks on sentence and in the Crown's summary. That was supported by a considerable number of statements by witnesses. An important statement is that of Comerford which places the applicant at the heart of the conspiracy and the defrauding. Similarly, Hall's statement was also important. No application was made to cross-examine Comerford or Hall.

4   The judge found that the applicant engineered a scam whereby he would work through Comerford to obtain motor vehicle finance from AGC for vehicle purchases. Comerford was employed by B&F Marketing which acted as a finance broker. Interport Motor Vehicles, a car dealer, referred potential vehicle purchasers to B&F Marketing which arranged finance through AGC. Comerford arranged for the necessary loan documents, which he usually filled out, to be completed by the purchasers, and submitted those and the required identification documents to AGC, often by fax. The identification documents included a current driver's licence, a letter confirming employment details, and rate notices.

5   By way of overt acts, the Crown alleged that the conspiracy covered six applications for motor vehicle finance, each bearing a different name. As a result of these applications and the false supporting documents, AGC paid out about $155,000. Each of these applications was filled out by Comerford. The details in those applications were supplied by Doolin who also provided supporting documents. Many of the details in these were false. The stated employers were not the true employers. Some did not exist. One was no longer carrying on business. One of the addresses was a vacant block of land. Some were premises owned by the applicant or in which he had an interest. Each of the driver's licences was false.

6   In three of the six transactions, (those in the names of Shepherd, Dowling and O'Kelly) Mr Doolin was the applicant for the licence, and his photograph appeared on the false diver's licence. The judge found that in respect of each transaction, the applicant was the instigator of the fraud. She also found that the applicant was equally culpable with either or both of the co-conspirators. She held that the offences evidenced serious criminality as they involved counterfeiting "those very documents that the rest of the community relies on to prove both identity and bona fides". This is an important point. This sort of white collar crime bears upon the community as a whole, and it makes ordinary business transactions more complex and expensive.

7   The judge noted that each of the vehicles was ultimately recovered and sold at auction. About $100,000 remains outstanding. She found that the sums obtained by the applicant out of the transactions fell just short of $25,000. She did not accept that his commission of the offences was due to his poor financial position. She said,

"It seems to me more likely that the prisoner involved himself in this series of fraudulent transactions because he was and remains a confidence trickster".

and

" All of these pieces of evidence ... point to a man who ... is purely and simply a conman who stood to gain financial advantage out of these transactions and who engaged in them not because of any particular financial difficulty at the time or because of any particular pressure he was under, but simply because that was the way, at least at the time, that he derived some of his income".

8   There was evidence to support the judge's findings. The judge noted the applicant's criminal record for dishonesty and commercial dishonesty, that is, his convictions for false pretences; dishonestly obtaining a financial benefit; obtaining a benefit by deception; and passing valueless cheques.

9   The judge took into account the applicant's subjective features. He was a good family man and father. He was, at the date of sentence, employed as a property consultant. In the past he had worked in various businesses. She was conscious of his many favourable references but felt that the referees did not know his true character and that that was revealed in the facts of the transactions before her. That view was open on the evidence.

10  The judge regarded the applicant's prospects of rehabilitation as poor. Further, she found that he had shown no remorse for having committed the offence and had no insight into it. She thought that the potential for his committing further similar offences was high. She thought that he should not be permitted to operate a business or become a company director in the future.

11   The judge rejected the submission that there had been a relatively early plea of guilty. She held it was a late plea of guilty. She further held that the plea represented a recognition of the inevitable on the applicant's part. There was evidence to support such findings. She thought that the utilitarian value of the plea was worth a discount of 10 percent.

12   The judge paid attention to the issue of parity. She said,

"Mr Hall was sentenced to a period of 2 years and 6 months to be served by way of periodic detention. He was sentenced, however, for only one of the six transactions comprising this conspiracy and also in relation to other non-related matters. He, however, had no prior relevant criminal record which places him in a vastly different position to this prisoner.

Mr Comerford was sentenced by me to a period of 12 months imprisonment to be served by way of periodic attention. I adhere to the finding I made in the sentence of Michael Comerford that the appropriate sentence for this offence would be 2 years full time imprisonment and that it would have been so for Mr Comerford had it not been both for the plea of guilty and the assistance he proposed to render to the authorities.

Even though Mr Comerford's plea of guilty was to a conspiracy which encompassed two only of these six transactions, I do accept that he was involved in each of the transactions comprising the conspiracy in this sentence and to that extent there are the same number of transactions involving him as involved this prisoner. He, however, had a less serious criminal record ... and entered a plea of guilty, albeit late, but in circumstances where he then proposed to assist the authorities".

13  The judge regarded a 2 year sentence as appropriate for the offence in this case but reduced it to twenty-one months to take the plea of guilty into account. She found special circumstances, this sentence being the applicant's first full time gaol sentence, and the applicant needing supervision in the community for a longer than normal period.

14  Both the full term of the sentence and the non-parole period were very lenient for the criminality revealed.

15   In his written submissions, the applicant has set out his personal circumstances in considerable detail. He has explained his family and employment situation. He has traced his financial history and the difficulties he encountered, including the steps he took to pay his creditors so as not to become bankrupt. The applicant also pointed out that his co-offender, Ronald Hayes, had not been charged.

16   In his oral submissions the applicant contended that the judge had made errors in two important areas. Firstly, she had declined to accept that his plea had been made at the first available opportunity. She had attributed too much of the delay to him.

17 The transcript of 29 November 2000 at page 14 reveals that in February/March 2000 there were discussions between the legal representatives of the parties with the applicant's solicitor indicating that the applicant would not plead guilty to the conspiracy offence, but would consider pleading guilty to substantive charges under S 178BA of the Crimes Act 1900. The Crown did not accept this, as the conspiracy charge was appropriate to enable the whole of the appellant's criminality to be taken into account.

18   Mr Govind had been handling the matter for the Crown and he became ill. Mr G Ellis of the private bar was brought in to handle the matter. He appeared for the Crown on Mr Doolin's application for a stay of proceedings. That was refused by the judge and Mr Doolin sought leave to appeal but did not proceed with his application. At the sentence hearing the judge asked when the first negotiations with Mr Ellis occurred. He replied,

"I came into the matter three days before the stay application before your Honour at which Mr Newell appeared. The first time a possibility of a plea was mentioned was when Mr Stanton rang me at 8.30pm on the Tuesday prior to the trial at home."

19   That really disposes of any argument that a plea was entered at an early date, or should be taken to have been so entered. I note, in passing, that Mr Newell appeared for the applicant on the sentence hearing.

20   It is apparent that the judge took charge of both Mr Comerford's trial and the applicant's trial and ensured that the untoward delays should end, and that the trials should proceed with reasonable expedition. The general discussion and so-called negotiations had come to an end. When it was made clear to the applicant that his trial was to proceed and that Mr Comerford had pleaded and offered to give assistance, the applicant pleaded.

21   Secondly, it was submitted the judge had erred in the remarks which she had made about the applicant's financial position. There was substantial material on which the judge could base her remarks. The findings which she made were open to her. It must be remembered that the applicant did not give evidence before the sentencing judge. There is no substance in Mr Doolin's challenges to the findings made by the judge.

22  As I understood Mr Doolin's submissions in this court, he was primarily concerned that he had unjustifiably been treated more severely than Mr Comerford and Mr Hall, and that his sentence should accord more closely with the sentences with which they had been given. I have already referred to the judge's remarks as to parity. What emerges are the significant differences between the applicant's position and that of Mr Comerford. They can be summarised:

1. The offer of assistance by Mr Comerford, that is, his willingness to give evidence against the applicant.

2 . The applicant's plea was very late and later than that of Mr Comerford.

3. . On the judge's findings, Mr Comerford played a secondary role in the commission of the offences.

4. The judge was inclined to the view that if it had not been for the applicant, Mr Comerford may not have become so involved in the matters in question.

5. The rehabilitation prospects of Mr Comerford were regarded as substantial, whereas those of Mr Doolin were not.

23  In my opinion, the complaints based on parity have not been made out. For these reasons I am of the opinion that the application for leave to appeal should be granted but the appeal should be dismissed.

24   WOOD CJ at CL: I agree.

25   For the criminality involved, the sentence here imposed was not one which could, on any view, be said to have been excessive. White collar crime is not victimless. Good policy reasons exist for the protection of commerce, and for those who use financial and similar services, why sentences should be passed that carry with them a significant element of both general and personal deterrence.

26  In the case of the present applicant who has a history of dishonesty that is extensive, this was an important consideration. The apparent discrepancy between the sentence imposed upon him and upon his co-offenders at first blush is more than adequately explained in the reasons for judgment of Smart AJ. There is no basis for him having any sense of grievance in that regard because the position of the other offenders is very different from his.

27   The order of the Court will accordingly be as Smart AJ has proposed.

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