Regina v Jackson

[2001] NSWCCA 355

CITATION:	REGINA v JACKSON [2001] NSWCCA 355 revised - 4/10/2001
FILE NUMBER(S):	CCA 60255/01
HEARING DATE(S):	6 August 2001
JUDGMENT DATE:	14 September 2001
PARTIES :	Regina Adam Mathew Jackson
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 2; Einfeld AJ at 13

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0928
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	P G Berman SC (Crown) J Dailly SC (Respondent)
SOLICITORS:	S E O'Connor (Crown) KPMG Legal (Respondent)
CATCHWORDS:	CRIMINAL LAW - sentencing - Crown appeal - undue weight given to special circumstances - Crimes (Sentencing Procedure) Act 1999, s44(2)
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson; R v Houlton (2000) 49 NSWLR 383
DECISION:	1. As to the sentence imposed in relation to the first count on the indictment, and taking into account the twenty-two matters on the Form 1; (i) the Crown appeal be allowed; (ii) the sentence imposed be quashed; (iii) in lieu thereof the respondent be sentenced to imprisonment for five years to commence on 18 March 2001 and expire on 17 March 2006, with a non parole period of three years to commence on 18 March 2001 and expire on 17 March 2004; 2. The Crown appeal against the remaining sentences be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60255/01

SPIGELMAN CJ
SIMPSON J
EINFELD AJ

Friday 14 September 2001

REGINA v Adam Mathew JACKSON

The Respondent pleaded guilty to seven charges of defrauding a public company in contravention of s176A of the Crimes Act 1900. The effective sentence imposed by Shadbolt DCJ was a term of imprisonment of five years, with a non-parole period of two years.

Held
per Simpson J; Spigelman CJ agreeing

1 Special circumstances were relevant to the determination of the non-parole period in this case. However, his Honour gave excessive weight to them.

2 Accordingly, his Honour erred in imposing a non-parole period of two years.

per Einfeld AJ
3 Though the finding of special circumstances was borderline, it was open to his Honour on the evidence to settle on the non-parole period he chose.

Orders
1. As to the sentence imposed in relation to the first count on the indictment, and taking into account the twenty-two matters on the Form 1:

(i) the Crown appeal be allowed;

(ii) the sentence imposed be quashed;

(iii) in lieu thereof the respondent be sentenced to imprisonment for five years to commence on 18 March 2001 and expire on 17 March 2006, with a non parole period of three years to commence on 18 March 2001 and expire on 17 March 2004.

2. The Crown appeal against the remaining sentences be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60255/01

SPIGELMAN CJ
SIMPSON J
EINFELD AJ

Friday 14 September 2001

REGINA v Adam Mathew JACKSON

JUDGMENT

1 SPIGELMAN CJ: I agree with Simpson J.

2 SIMPSON J: I have read in draft the judgment of Einfeld AJ.

3 I regret that I am unable to agree that the Crown appeal should be dismissed. The respondent admitted no less than twenty-nine offences, involving more than five million dollars, systematically committed over a two year period. On the first count on the indictment, which, like all others, carried a maximum penalty of imprisonment for ten years, the sentencing judge took into account twenty-two offences listed pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. It was, accordingly, on this count that he imposed the lengthiest sentence of imprisonment for five years. Having found special circumstances under s 44 of the same Act, he specified a non parole period of two years. On counts 2,3,4 and 6 he imposed concurrent sentences of four years with a non parole period of eighteen months. On counts 9 and 12 he sentenced the respondent to imprisonment for three years with a non parole period of fifteen months, also to be served concurrently.

4 There were, it is true, subjective circumstances engendering sympathy, but, in my view, these should not be allowed to obscure the objective criminality involved. The respondent in fact received a significant benefit as the result of subjective circumstances; in my opinion, although they did not become irrelevant on the question of special circumstances, care had to be taken that they were not given undue significance, resulting in a disproportionately low non parole period. In fact, in my opinion, that is what happened. In my opinion, given a lenient head sentence as the starting point, the reduction of the non parole period by way of special circumstances to a mere two years is unsustainable.

5 What the sentencing judge did was to assess the appropriate head sentence, taking into account all subjective matters other than the plea of guilty, as seven years, and reduce this to five years by reason of the plea of guilty. This represents a discount at above the top of the range promulgated as appropriate recognition for the utilitarian value alone of a plea of guilty in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That was not inappropriate. The respondent admitted his guilt on the day he was interviewed by auditors, and instructed his solicitors to enter pleas of guilty on his behalf to the offences. A trial, while a verdict would have been a foregone conclusion, would nevertheless have been complex and would have involved proof of the financial trail of twenty-nine cheques, and the purchases of real estate and other property by the respondent. Further, although it is not relevant to the discount for the utilitarian value of a plea of guilty, the plea on this occasion, as well as other evidence, demonstrated genuine contrition.

6 It may thus be accepted, and particularly so in the absence of any challenge by the Crown, that the head sentence of five years was appropriate. The questions which remain are whether the evidence justified the finding of special circumstances pursuant to s 44 (2) of the Crimes (Sentencing Procedure) Act 1999; and, if so, whether the variation made was within justifiable limits.

7 The Crown contended that the finding of special circumstances was not open. I have given careful consideration to whether the evidence did warrant a finding of special circumstances. As Einfeld AJ has observed, the case for special circumstances was “borderline”. In explaining the finding of special circumstances, the judge referred, globally, to all of the subjective matters that he had recounted. He appears to have considered all of them as relevant to the question of special circumstances. I am not persuaded that all - for example, the recovery of the bulk of the defalcations - can properly be taken into account on an assessment of special circumstances. It is not necessary, here, to dissect the conclusion that special circumstances exist and I have not been able to conclude that the finding was not one which was open to the sentencing judge. Accordingly, I would not disturb it.

8 However, I am quite satisfied that the allowance that was made was excessive to a point that is unsustainable.

9 Without a finding of special circumstances, the non-parole period would have been three years and nine months. I cannot see any sufficient basis in the evidence for reducing the non-parole period to a little more than half that. I accept, as the sentencing judge found, that the respondent will, on release, have difficulty in returning to employment, that he is young, that this is his first time in prison, and indeed, his first foray into criminality. I accept that he will have difficulty adjusting to the very different lifestyle he will lead after his release. What I am unable to accept is that a variation of the non-parole period of the magnitude in fact allowed does not represent discretionary error. I am satisfied that such discretionary error has been established. The non parole period imposed in relation to the first count was manifestly inadequate.

10 In my opinion the principles applying to the imposition of sentence following a successful Crown appeal - that is, that this court will impose a sentence at the lower end of the appropriate range - apply equally to variation of a non-parole period as in the present circumstances. In my opinion the lowest non-parole period that could reasonably have been imposed, bearing in mind the finding of special circumstances, is one of three years.

11 I have considered evidence tendered as relevant to the residual discretion this court retains even after such a conclusion. This relates principally to hardship that will be suffered by the respondent’s wife and child and, indeed, the respondent, by reason of his incarceration. It is not in my opinion, sufficient to warrant the exercise of that discretion.

12 I propose the following orders:

1. as to the sentence imposed in relation to the first count on the indictment, and taking into account the twenty-two matters on the Form 1:

(i) the Crown appeal be allowed;

(ii) the sentence imposed be quashed;

(iii) in lieu thereof the respondent be sentenced to imprisonment for five years to commence on 18 March 2001 and expire on 17 March 2006, with a non parole period of three years to commence on 18 March 2001 and expire on 17 March 2004.

2. The Crown appeal against the remaining sentences be dismissed.

13 EINFELD AJ: The Director of Public Prosecutions (DPP) has appealed a sentence pronounced on Adam Mathew Jackson, (the respondent) by the District Court (Judge Shadbolt) on 23 March 2001 on seven charges of defrauding a public company in contravention of section 176A of the Crimes Act to which the respondent had pleaded guilty before a magistrate. He had admitted the offences to investigators virtually from the outset. His Honour was asked to take into account 22 further offences under the same section admitted by the respondent, each involving the making and negotiation of company cheques for personal purposes. The effective sentence was imprisonment for 5 years with a non-parole period of 2 years.

14 The respondent is now almost 32 years old. He married in March 1999 and the couple has one son, with another child to be born soon. The offences were committed over a two year period from May 1997 to May 1999 meaning that he was 27 years old when his criminal activity commenced. He was then the Company Secretary of Manpower Services Australia Pty Ltd (“the employer”), an American personnel recruitment company operating internationally. He was authorised to operate the company’s bank accounts at the Westpac, Commonwealth and National Australia Banks in which role he wrote the 29 cheques involved in the offences before the Court. The amount involved was more than $5.2 million, used to pay personal financial commitments and make significant purchases including three separate real estate properties, one with deep water frontage and private jetty; a large motor cruiser, four motor vehicles; and a number of Sydney Olympic Games tickets.

15 The offences dealt with by Judge Shadbolt carried maximum sentences of 10 years imprisonment. They involved a large sum of money, were consistently, skilfully and frequently pursued over a two year period, and were effected by changing and falsifying entries on accounts which the respondent operated without external scrutiny. They represented gross breaches of trust, especially the trust of his CEO to whom he had lied about his qualifications for this position before he was appointed. He had, in fact, been lying about his personal achievements and successes to all and sundry for many years including to the woman who was to become his wife. The defalcations were carried out to provide the respondent with a lavish lifestyle, which he otherwise could not have afforded, and to give the quite false impression to friends and associates that he was a highly successful young business executive who was “going places”. By themselves these facts demonstrated a wanton disregard for honest and trustworthy dealings and for the interests of his employer, and called for a lengthy custodial sentence as both punishment and deterrence to others in similar positions of trust, and to reflect the seriousness of the crimes committed.

16 There were a number of countervailing factors which his Honour was asked to take into account. First was the respondent’s good character, at least in the sense that he had no previous criminal convictions. On the one hand, this element is commendable because he was born to a woman of 15 years of age, and effectively had no father. On the other hand, good character may be diminished somewhat by the length of time over which the offences were committed, the amount of money involved, and the purpose of the frauds. Second was the plea of guilty demonstrating remorse and contrition and saving court time, official expense and stress on witnesses. The respondent knew at all relevant times that his conduct would eventually be discovered.

17 The respondent has made substantial reparation. The employer recovered all or most of the stolen money on insurance and the respondent has repaid the insurance company all but about $300,000 of this money by selling the fraudulently acquired real estate and other goods, and by selling his own home which he had purchased legitimately. He also worked during his remand period to make further reparation and provide for his wife and child who, by that time, and pending his sentence to an inevitable gaol term, were living with her father in Queensland. They are still there, and he is serving his time at Grafton. He has in substance “lost everything” except his wife and child(ren), and despite an offer by one of his character witnesses to employ him on his release, he will struggle to find remunerative employment in the future. He will need extensive supervision and support after release. The respondent’s wife has undertaken a risky second pregnancy because delay is believed likely to worsen a gynaecological problem. If all goes well, she will have two children under two and a half under her care for about 1 and a half years.

18 Judge Shadbolt assessed the appropriate head sentence as 7 years but reduced it to 5 years because of all these factors. He regarded the subjective material as sufficient “special circumstances” to reduce the statutory ratio for the non-parole period to 2 years. The DPP did not seriously challenge the head sentence, but argued that the non-parole period which, he said, “most reflects the punitive aspect of the sentence, … does not adequately reflect the criminality of the respondent’s conduct…[and] does not fit the objective seriousness of the respondent’s offences.” He submitted that the finding of “special circumstances” was erroneous. The respondent agreed that the sentence was lenient but not so manifestly inadequate as to indicate error of principle or mistake of law or fact. He contended that the “special circumstances” finding was open on the evidence and was appropriate, especially as it was made by a very experienced sentencing Judge.

19 As I read them, the case law and the sentencing statistics do not provide any definitive guidance to the resolution of this case. There is a need to avoid possible “double jeopardy” applicable to Crown appeals, as well as a double discount on both levels of the sentence. The sentence must reflect the very large amount defrauded, and the length of time over which it was taken, while allowing for the substantial reparation and the huge impact on the respondent and his family of the subjective circumstances.

20 The head sentence imposed undoubtedly was lenient but the DPP did not ask for its variation. I think the finding of “special circumstances” to be borderline but I have, with some hesitation, concluded that it was open to his Honour on the evidence. This finding permitted him to settle on the non-parole period he chose and, although low, I cannot find it to be so out of kilter with precedent or the facts as to command this Court to intervene.

21 I would dismiss the appeal.

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