Regina v Fisher

[2001] NSWCCA 143

CITATION:	Regina v Fisher [2001] NSWCCA 143
FILE NUMBER(S):	CCA 60294/00
HEARING DATE(S):	4/4/01
JUDGMENT DATE:	4 April 2001
PARTIES :	REGINA v STEVEN FISHER
JUDGMENT OF:	O'Keefe J at 1;23; Smart AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/3028
LOWER COURT JUDICIAL OFFICER :	Ford DCJ

COUNSEL :	Ms P Hock - for Crown Mr T J Golding - for applicant
SOLICITORS:	S E O'Connor - for Crown D J Humphreys - for applicant
CATCHWORDS:	Make and use false instrument - Appeal against sentence - Positions of trust abused - Confession before approached by police - Plea of guilty at earliest possible time - Gambling addiction - Re-sentencing - Constraints on Court of Criminal Appeal
CASES CITED:	Regina v El Rashid (CCA unreported 7 April 1995) Regina v Brillo (CCA unreported 14 May 1997)
DECISION:	Leave to appeal be granted.; 2. The appeal against sentence be allowed and the existing sentences quashed.; 3. The applicant be sentenced on the first count to a fixed term of imprisonment of one year and nine months commencing on 5 May 2000 and expiring on 4 February 2001.; 4. The applicant be sentenced to a fixed term of two years imprisonment on each of counts 2 to 11 inclusive, such term to commence on 5 May 2000 and to expire on 4 May 2002.; 5. The applicant be sentenced to a term of five years imprisonment on count 12, consisting of a minimum term of two years and six months to be concurrent with the sentences imposed in respect of counts 1 and 2 to 11 above. The minimum term is to expire on 4 November 2002 and the additional term to expire on 4 May 2005.

IN THE COURT OF
CRIMINAL APPEAL

No: 60294/00

O’Keefe J
SMART AJ

Wednesday, 4 April 2001

REGINA v STEVEN FISHER

JUDGMENT

1    O'KEEFE J: On 14 April 2000, Steven Fisher (the applicant), pleaded guilty to six counts of making a false instrument and six counts of using such an instrument. The instruments involved were National Australia Bank's cheques for the following amounts: $11,880, $35,904, $34,944, $34,944, $30,144 and $31,992 drawn on the account of Australian Ultra Polymers Pty Limited. In addition, a further forty-eight instances of making false instruments and forty-eight instances of using such instruments were included on a schedule which was taken into account by the sentencing Judge.

2    On 5 May 2000, the Judge sentenced the applicant to a minimum term of three years imprisonment with an additional term of two years, the imprisonment to commence on 5 May 2000, with the minimum term to expire on 4 May 2003; the additional term to expire on 4 May 2005.

3    The applicant seeks leave to appeal on the ground that the sentence imposed was "too severe in all the circumstances".

4    The offences for which the applicant was sentences extended over a period of four to five years whilst he was employed by Australian Ultra Polymers Pty Limited as the Technical Manager of his employer's office. The applicant defrauded his employer of some $248,000. Although the specific cheques referred to in the twelve counts in the indictment totalled $459,808 part of that money was used to pay creditors of his employer. However, the rest was diverted by him for his own purposes, which consisted principally of repaying gambling debts.

5    The method by which the applicant defrauded his employer was quite sophisticated. Cheques which had already been signed by those with proper authority to do so, were typed up in the office of which he was the Technical Manager. He had access to those cheques and devised and implemented a plan whereby he removed the typeface or print from the cheques by using sticky tape and then himself typing a different name in the place reserved on the cheque for the name of the payee. The name he would use was the Australian Plastics and Rubber Institute. He was the treasurer of that institute and was able, by virtue of that position, to intercept the cheques and divert them. The applicant was able to engage in this deception only because of the seniority and trust which was associated with the position he held in the company that employed him and his position as treasurer of the Australian Plastics and Rubber Institute.

6    The crimes to which the applicant pleaded guilty were thus serious, extended over a long period and involved breaches of the trust reposed in him by both his employer and to the institute of which he was treasurer.

7    The applicant confessed his wrongdoing to the police before any approach was made to him concerning his defalcations. However, he was aware that his subterfuge was coming to an end because the creditor of his employer whose payments had been diverted by him, had complained by phone and had sent a facsimile about the large amount outstanding. As a consequence of this, the applicant believed that at best he could continue his deception for another two months by explaining to the creditor that his employer was experiencing cash flow problems.

8    The effect of this is that although his cooperation with the authorities made their task easier, less expensive and time consuming, the extent to which there should be a discount in the sentence by reference to such cooperation would not be great. It would, however, still be a factor in mitigation of sentence. It is not one which the sentencing Judge referred in his reasons for sentence. It is a consideration which was appropriate to refer to and should have been referred to as being reflected in the sentence. The fact that it was not referred to is indicative of error.

9    The applicant pleaded guilty at what appears to have been the earliest possible time. When the matter was before the Local Court on 22 December 1999, the prosecution sought an adjournment to get the brief together. The applicant consented to this, indicating at the same time that the matter would be dealt with by way of a plea of guilty.

10    The matter was then adjourned until 23 February 2000 when the applicant was committed for sentence. However, for technical reasons he was recharged and it was no doubt because of this that the sentencing Judge referred in his Reasons for Sentence to the fact that the applicant only pleaded guilty on 14 April 2000. The sentencing Judge did not advert to the early plea in his reasons for sentence. Such a plea was a matter which entitled the applicant to a discount on the sentence that would otherwise have been imposed. It is not adverted to in the reasons of the sentencing Judge yet it would have been a matter to which reference should and would have been made had regard been had to it. It would thus seem that the applicant did not receive a discount on his sentence for his early plea of guilty.

11    Because the offences would have been found out in any event and their proof would have been relatively easy for the Crown, any discount should be a reflection to the appropriate extent of the utilitarian value of the plea.

12    By the time he was sentenced the applicant had made a minor recompense, namely some $17,000. That fact, his plea and evidence indicated genuine remorse and distress about the problems he had created for his employer and his family.

13    The evidence before the District Court Judge clearly established that the applicant had an addiction to gambling. Indeed, even after he had been charged with the offences for which he was sentenced he continued to gamble. However, prior to the sentence hearing he had embarked upon a rehabilitation program and there were some prospects of his rehabilitation.

14    The sentence imposed by the District Court Judge recognised the difficulty in rehabilitating addictive gamblers as a special circumstance which justified the varying of the statutory ratio between the minimum sentence and the additional sentence. This is in line with the approach taken by this Court in Regina v El Rashid (CCA unreported 7 April 1995)

15    The sentence imposed by the District Court Judge was one year more than that imposed by this Court in El Rashid. However, the present case was more serious than that of El Rashid in the following respects:

a) The number of offences in the present case was twelve together with ninety-six on the schedule. This compares with two in El Rashid .

b) The amount of money involved in the present case was greater.

c) The position of the applicant was more senior both in his employment and in the Australian Plastics and Rubber Institute than had been the position of Mr El Rashid.

d) The trial Judge in the present case was not constrained by the limiting factors which apply to the Court of Criminal Appeal on a Crown appeal against severity of sentence, namely:

i) The caution that needs to be exercised by such court in appeals of this kind, a caution which has been emphasised by the High Court.
ii) Such Court does "not ordinarily impose a sentence of the severity (it thinks) should have been imposed at first instance, but, rather (it imposes) the least sentence that could reasonably have been fixed."

16    On the other hand there was no plea of guilty in El Rashid nor was there any recompense made. Furthermore, there was no apparent remorse in El Rashid and the only reason for the crime in that case appears to have been greed.

17    In the instance case, the factor of rehabilitation needs to be taken into account as well. The sentencing Judge whilst adverting to this has down-played it. The fact is that the applicant has, on the evidence before the Court, persisted in his rehabilitation program and given every indication of his genuineness in that regard.

18    Counsel for the applicant referred to Regina v Brillo (CCA unreported 14 May 1997) and sought to draw some solace from it. I do not think it is of assistance to the applicant. It was an appeal by Ms Brillo against the severity of a sentence of eighteen months minimum term with an additional term of two years imposed on each of five counts. The appeal was dismissed. The Court held that the sentence was not excessive. Indeed, Smart J said:

"the judge could not reasonably have imposed a lesser sentence."

19    The present case is, in my opinion, more serious than Brillo. The position of trust was greater in the present case, as was the twofold breach of that trust. The period of time over which the defalcations extended was longer; the method of defrauding much more sophisticated and much less likely to be detected, at least in the short to medium term.

20    Having regard to the error of the sentencing Judge which has been identified, I am of opinion that it is appropriate that leave to appeal should be granted. Furthermore having regard to what appears to be the failure of the Judge to take into account at least two discounting factors when fixing the sentences, I am of opinion that the appeal should be allowed.

21    I would propose that:

1. Leave to appeal be granted.

2. The appeal against sentence be allowed and the existing sentences quashed.

3. The applicant be sentenced on the first count to a fixed term of imprisonment of one year and nine months commencing on 5 May 2000 and expiring on 4 February 2001.

4. The applicant be sentenced to a fixed term of two years imprisonment on each of counts 2 to 11 inclusive, such term to commence on 5 May 2000 and to expire on 4 May 2002.

5. The applicant be sentenced to a term of five years imprisonment on count 12, consisting of a minimum term of two years and six months to be concurrent with the sentences imposed in respect of counts 1 and 2 to 11 above. The minimum term is to expire on 4 November 2002 and the additional term to expire on 4 May 2005.

22    SMART JA: I agree.

23    O'KEEFE J: The order of the Court will be as proposed in the judgment just given.

**********