Regina v Phillis
[2001] NSWCCA 91
•28 March 2001
CITATION: Regina v Phillis [2001] NSWCCA 91 FILE NUMBER(S): CCA 60069/00 HEARING DATE(S): 2 March 2001 JUDGMENT DATE:
28 March 2001PARTIES :
Regina v Brett Robert PhillisJUDGMENT OF: Heydon JA at 1; Bell J at 2; Smart AJ at 3
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 98/21/0368 LOWER COURT JUDICIAL
OFFICER :Luland DCJ
COUNSEL : (A) H Danji
(R) R SutherlandSOLICITORS: (A) Legal Aid Commission of NSW
(R) Commonwealth DPPCATCHWORDS: Sentencing - Deception and possession of counterfeit currency - mental element - inadequate findings of fact. LEGISLATION CITED: Crimes (Currency) Act
Crimes Act 1900
Crimes (Currency) Act 1981 (Cth)
Crimes (Sentencing Procedure) Act 1999CASES CITED: The Queen v de Simoni (1981) 147 CLR 383 at 389 DECISION: Pursuant to s59 of the Crimes (Sentencing Procedure) Act 1999 order that the dates of the sentences imposed for the offence of deception under s 178BA of the Crimes Act (being count 7 involving the cheque for $22,512.63 and 56 offences on Form 2) be varied thus; (i) the commencement date of the minimum term of 18 months be varied from 18 July 2000 to 18 February 2000 and the finishing date from 17 January 2002 to 17 August 2001; and; (ii) the commencement date of the additional term of 12 months be varied from 18 January 2002 to 18 August 2001 and the finishing date from 17 January 2003 to 17 August 2002; Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 order that the dates of the sentences imposed for each of the other offences of deception under s 178 of the Crimes Act be varied thus; (i) the commencement date of each sentence of 12 months fixed term be varied from 18 July 2000 to 18 February 2000 and the expiry date from 17 July 2001 to 17 February 2001.
CCA 60069/00IN THE COURT OF
CRIMINAL APPEAL
HEYDON, JA
BELL J
SMART AJ
1 HEYDON JA: I agree with the reasons for judgment of Mr Acting Justice Smart.
2 BELL J: I agree with the order proposed by Smart AJ for the reasons his Honour has given.
3 SMART AJ: By his Notice of Appeal Brett Robert Phillis initially sought leave to appeal against the severity of sentences imposed upon him in the District Court consequent upon pleas of guilty to 15 offences of obtain money by deception and one offence of possessing counterfeit money. In his written and oral submissions the applicant stated that he was only challenging the sentence on the last mentioned offence. As the deception charges carried the longer sentences, all matters were dealt with together and it is necessary to summarise the position briefly as to the deception charges.
4 On count 7, [involving the cheque for $22,512.63 deposited to his Westpac SWRC account], being the offence of obtain money by deception under s.178 BA of the Crimes Act and taking into account 56 similar offences under the same section, the applicant was sentenced to a minimum term of 18 months imprisonment to date from 18 July 2000 and an additional term of 12 months. On each of the other 14 counts being offences of obtain money by deception he was sentenced to concurrent terms of 12 months, each sentence to date from 18 July 2000. On a charge under s.9(1) of the Crimes (Currency) Act 1981 (Cth) of possessing counterfeit money (100 x $100 Australian banknotes) knowing it to be counterfeit money he was sentenced to 6 months imprisonment to date from 18 January 2000. In imposing this sentence the judge took into account that the applicant had spent 20 days in pre-sentence custody.
5 In March 1997 the applicant commenced a business called Sydney Wide Rental Guide involving the publication and distribution of a magazine listing rental properties. His parents and his friends contributed to the capital of the business. Unfortunately, the business was slow in building up and did not prosper. The applicant had unreal expectations. High production and distribution costs exceeded the sales income. When the applicant realised that he was in financial difficulties he unsuccessfully sought bank overdraft facilities. Amongst other things he drew cheques, well knowing the funds were not available to meet them. Cheques were circulated through various accounts. Cheques were deposited and drawn against before they were cleared. The cheques were not met on presentation. It was a perverse kind of "round robin". The amounts involved on the 15 counts charged totalled $109,666.36 and those on the 56 matters taken into account totalled $130,663.
6 The offences were committed from April 1997 onwards with a few offences being committed in January/February 1998. The applicant was charged with offences on five separate occasions between September 1997 and February 1998 and committed a lot of the offences while on bail. He still believed that he could resuscitate the business and pay his creditors.
7 As to the possession of counterfeit notes it is important to note that the applicant was charged with possession not uttering. The applicant claimed that in the afternoon of 12 November 1997 he found a bag containing what he believed to be genuine money in a bus shelter at Pennant Hills. About 8.15 am on 13 November 1997 he telephoned Snr Cons Lodge (who was dealing with the deception charges) and told him that he had found something and needed advice as to what he should do with it. Initially he did not want to say what he had found. Eventually he told Snr Cons Lodge that he had found about $10,000 to $12,000. He was told to bring it in to the police station. He agreed to do so when he reported there later that day to comply with his bail conditions.
8 About 12.45 pm that day the applicant attended the Epping Post Office and sought two money orders, one for $1000 and another for $800. He handed over $1800 in $100 notes. The postal assistant held up two notes to the window looking for various lines. She showed them to another postal assistant who told her to take the money into the office. She was in the back office for a few minutes. The applicant became worried and thought that the money might have been stolen. He then held up a $100 note, saw that it did not have a line and suspected that the notes may be counterfeit.
9 He started to panic and walked out of the Post Office. He telephoned Cons Lodge and received the engaged signal. Eventually Cons Taylor answered the telephone. This was about 1 pm. The applicant told Cons Taylor that he had found some money which may be counterfeit, that he had used some of the money and that only a few hundred dollars was left. The applicant said that he still had the rest of the money with him. Cons Taylor told the applicant to come into Eastwood Police Station.
10 The applicant said that he caught a train to Hornsby. He telephoned his home and ascertained that there was a message to telephone the police. About 1.35 pm he telephoned Snr Cons Lodge and told him he was on a train heading towards Hornsby. Snr Cons Lodge told him to come to Eastwood. On being asked where was the money, the applicant replied that he only had a hundred dollars left. When asked where was the other $10,000 to $12,000 the applicant replied it was only 12 hundred and not 12 thousand dollars.
11 About 2pm the applicant attended at Eastwood Police Station and was interviewed by the police. It was during that interview that he explained that on the morning of 13 November he had quickly counted the notes which he had found but had not examined them closely. He did not notice that they all had the same serial number, that they were rough to the touch, that they did not have lines and that some had been cut unevenly. He did not suspect that they were counterfeit until he saw the postal assistant examine the notes and retire to the back office and he examined one of the notes and noticed the absence of lines. The applicant told the police that he left the money on a seat on the train taking him to Hornsby. During the interview the applicant effectively admitted to the offence charged by the admissions which he made.
12 In his evidence the applicant told substantially the same story as he had given the police in his interview. Counsel for the Crown accepted that in the various accounts given by the applicant he maintained that he had no knowledge that the notes were likely to be counterfeit until after he had handed over $1800 at the Epping Post Office. There was no evidence to the contrary, just strong suspicions.
13 Counsel for the respondent pointed out, delicately, that the lack of concurrence between the act of possession and the mental element of knowledge that the money was or was likely to be counterfeit, was not a matter that engaged the attention of anyone at the sentence hearing. One consequence of this was that no-one appreciated that the applicant's evidence and his account to the police as to when he first became aware that the notes may well be counterfeit did not fit well with his plea of guilty to possession of $10,000, The applicant's evidence would have fitted with a plea of guilty to possession of $8200. This may be thought to be a fine point.
14 At the sentence hearing, apart from the discrepancy as to the amount, the District Court appears to have proceeded on the basis of the applicant's version of events. The Crown correctly accepted that this Court had to proceed on the same basis.
15 The applicant submitted that his criminality lay in not going to the police immediately after he left the Post Office, catching the train to Hornsby and retaining possession of the counterfeit notes until he left them on the train. The circumstances in which the applicant parted with the possession of the counterfeit notes were curious and not responsible. It was submitted that the proven criminality of the applicant was relatively minor. There is substance in that submission.
16 A plea operates as an admission of all the elements of the offence. In pleading to possession of $10,000 this meant that the accused was aware that the $10,000 was likely to be counterfeit money before he went to the Post Office. However, as nobody addressed the point, the evidence was to the contrary and the District Court proceeded on the basis earlier mentioned, I do not propose to take a strict approach. Most attention was directed towards the dishonesty charges at the sentence hearing.
17 During argument considerable attention was paid to this passage in the judge's remarks on sentence:
"In respect of the counterfeiting charge, the prisoner claimed that on 4 November 1997 he found a bag containing what he thought to be genuine money in a bus shelter at Pennant Hills. He rang a police officer, Constable Lodge, and told him about his find. He was told to bring it to the police station and if it was not claimed within three months he could keep it. He said it was about $10,000 to $12,000.
The prisoner claimed to have later realised the money was not genuine. He then attempted to obtain $1,800 worth of money orders at a post office with the counterfeit money. When he became aware that the postal workers were suspicious he left the post office. He caught a train and claims to have disposed of he balance of the money on the train. The prisoner later attended the police station and admitted the offence. He maintained his version of events before me."
18 The applicant submitted that this passage meant that the judge had sentenced him on the basis that he realised that the counterfeit notes were not genuine prior to attending the Post Office. The Crown submitted that the passage was not clear. Was the sentence "The prisoner claimed to have later realised the money was not genuine" an interpolation in the sequence which was being recounted or a mistake in the recitation of the applicant's version of events? Was it a sceptical comment, indicating non-acceptance of the applicant's version of events?19 It is probable that a slight mistake was made. Incidentally, the judge has mis-stated the date of the offence although nothing appears to turn on that.
20 The applicant further submitted that if he had realised the notes were counterfeit prior to attempting to exchange them at the Post Office he would have been guilty of the offence of uttering counterfeit money contrary to s 7(a) of the Crimes (Currency) Act. While that may be so, he was not charged with that offence. The judge did not deal with the applicant on the basis of him committing the offence of uttering. Further, the offence of uttering would probably have to be limited to $1800. I am not satisfied that the judge took into account circumstances of aggravation which would have warranted conviction of the more serious offence of uttering. What the judge took into account related to the accused becoming aware that the notes were counterfeit. This was related to the possession charges. The judge did not contravene the principle in The Queen v de Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ.
21 The applicant also relied on Regina v Ellis (1986) 6 NSWLR 603 pointing out that he probably would never have been detected if he had not made his first telephone call to Snr Cons Lodge on the morning of 13 November 1997. That submission is only partly correct. As to the amount of $1800 the Post Office staff would have been able to identify him. He was also captured on the Post Office video. The Post Office staff would have been able to give evidence that he had other moneys but they probably would not have been able to quantify the amount. Nevertheless, the applicant is entitled to some credit for initially reporting the matter although he seems to have had confused and mixed motives. He was hoping to be able to use some of the money to pay his debts.
22 The judge observed that the community depended upon the integrity of the money system and that deterrence was significant. The judge took into account the applicant's early pleas of guilty and accepted that he was genuinely remorseful.
23 The applicant was born on 1 August 1973 and was thus aged 23 and 24 at the time of the commission of the offences. He had one previous conviction for a driving offence which the judge correctly disregarded. He has been in a de facto relationship for some years and has a young child born early in 2000. The judge accepted that as a child the applicant suffered from attention deficit problems and hypertensive disorders. He had a reasonable education and had always been employed.
24 The judge correctly found that there were special circumstances and imposed a longer than usual additional term on the dishonesty offences and if the sentences are taken together, overall.
25 This Court has been hampered by the absence of relevant findings and the lack of attention to when the mental element on the possession charges existed. At one stage I contemplated remitting the matter to the District Court with a direction to rehear the matter and re-sentence the applicant. As the six months sentence expired on 17 January 2001 this would not be appropriate. Further, this charge does not warrant the further expense and delay involved in re-sentencing. As error has been established this Court should re-sentence the applicant on the basis that, despite strong suspicions to the contrary, he did not become aware that the moneys were counterfeit until after he attended at the Post Office and handed over $1800. The amount the subject of the charge should be read as if it were $8200.
27 I propose the following orders:26 In all the circumstances and bearing in mind the principle of totality, the correct course for this Court is to substitute a sentence of a fixed term of one month's imprisonment for that of six months. A consequential adjustment will need to be made as to the starting date of the sentences for dishonesty.
(a) Leave to appeal against the sentences imposed for the offences of deception under s 178BA of the Crimes Act 1900 refused.
(b) Leave to appeal against the sentence of six months imprisonment for the offence under s 9(1) of the Crimes (Currency) Act 1981 (Cth) (possession of counterfeit money) granted. Appeal allowed, sentence quashed. In lieu thereof the applicant is sentenced to one month's imprisonment starting from 18 January 2000 and ending 17 February 2000.
(c) Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 order that the dates of the sentences imposed for the offence of deception under s 178BA of the Crimes Act 1900 (being count 7 involving the cheque for $22,512.63 and 56 offences on Form 2) be varied thus:
(i) the commencement date of the minimum term of 18 months be varied from 18 July 2000 to 18 February 2000 and the finishing date from 17 January 2002 to 17 August 2001; and
(d) Pursuant to s 59 of the Crimes (Sentencing Procedure) Act1999 order that the dates of the sentences imposed for each of the other offences of deception under s 178A of the Crimes Act 1900 be varied thus:(ii) the commencement date of the additional term of 12 months be varied from 18 January 2002 to 18 August 2001 and the finishing date from 17 January 2003 to17 August 2002.
(i) the commencement date of each sentence of 12 months fixed term be varied from 18 July 2000 to 18 February 2000 and the expiry date from 17 July 2001 to 17 February 2001.
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