Regina v Stevens

[2000] NSWCCA 324

CITATION:	Regina v Stevens [2000] NSWCCA 324
FILE NUMBER(S):	CCA 60548/1998
HEARING DATE(S):	10/07/2000
JUDGMENT DATE:	10 July 2000
PARTIES :	Regina Neil Colin STEVENS
JUDGMENT OF:	Studdert J at 1; Bell J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0220; 97/11/0220; 97/11/1087
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	CK Maxwell QC - Crown MC Ramage QC - Applicant
SOLICITORS:	SE O'Connor - Crown Stevcen Naris & Co - Applicant
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986
CASES CITED:	R v Bloomfield (1998) 44 NSWLR 734
DECISION:	Application for leave to appeal branted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60548/98

STUDDERT J
BELL J

Monday, 10 July, 2000

REGINA v Neil Collin STEVENS

JUDGMENT
1    STUDDERT J : I ask Justice Bell to give the first judgment.
2    BELL J : This is an application for leave to appeal against the severity of sentences imposed upon the applicant by his Honour Judge Kinchington upon an indictment containing seven counts. Count 1 charged the applicant with an offence shortly described as “use false instrument” contrary to s 300(2) of the Crimes Act 1900 (“the Act”). It carries a maximum sentence of imprisonment of ten years. In respect of this count the applicant was sentenced to a minimum term of three years imprisonment to date from 28 August 1998 and to expire on 27 August 2001. An additional term of eighteen months was specified to commence on 28 August 2001 and to expire on 27 February 2003.
3 Counts 2, 5 and 6 charged the applicant with attempting to dishonestly obtain a valuable thing by deception contrary to s. 178BA/344 of the Act. These offences carry a maximum sentence of five years imprisonment. Counts 3, 4 and 7 charged the applicant with dishonestly obtaining a valuable thing by deception contrary to s. 178BA of the Act. These offences also carry a maximum of five years imprisonment.
4    In respect of count 2 the applicant was sentenced to an identical term to that imposed on count 1. The remaining five counts were the subject of fixed term sentences which were expressed to commence on 28 August 1998 and to expire on 27 May 2000.
5    The sentencing judge also dealt with the applicant in respect of a breach of recognisance imposed by Judge Flannery in the Sydney District Court on 18 December 1992. The recognisance was conditioned upon the applicant being of good behaviour for a term of five years. This recognisance was imposed following the applicant's conviction on four counts shortly described as “obtaining property by passing valueless cheques”. In relation to the breach of this recognisance his Honour imposed a sentence of six months imprisonment to commence 28 August 1998 and to expire on 27 February 1999.
6 In addition to the seven counts in the indictment the applicant asked his Honour to take into account a further ten matters which were set out in a Form 1 pursuant to s 21 of the Criminal Procedure Act 1986 (as it then stood). Each matter in the Form 1 related to an offence of dishonestly obtaining a valuable thing by deception.
7    In relation to counts 1 and 2 the applicant was arrested on 27 October 1995. He was admitted to bail. The Crown has drawn our attention to the circumstance that the tenth matter in the Form 1 was committed on 22 November 1995 and, thus, was an offence committed while on bail. The applicant was arrested subsequently on 21 February 1996 and released on bail. His liberty was subject to a residential requirement and to a condition that he report three times weekly to the officer in charge of the Campbelltown Police Station. On 17 February 1997 the bail conditions were varied by reducing the reporting requirement to once weekly. The applicant remained on bail until his remand in custody on 28 August 1998 at the conclusion of the sentence hearing.
8    The applicant was dealt with jointly with co-offenders Alfred Fischer and Merrick Price. All three were said to have been a party to a scheme involving the creation and use of false identities in order to obtain credit cards and loan facilities from various financial institutions. In the case of Fischer the offences in respect of which he appeared for sentence before his Honour covered a period between October 1994 and February 1995. Merrick Price's offences were said to have taken place between September 1994 and October 1995. The offences in respect of which the applicant pleaded guilty, including those matters which he asked to be taken into account pursuant to the Form 1, occurred between September 1994 and February 1995.
9 It is to be noted that neither of the co-offenders were charged with any offences contrary to s. 300(2) of the Act. The maximum sentence in respect of any one offence for which either Fischer or Price stood for sentence was one of five years.
10    The sentencing judge approached the matter upon the basis that the culpability of Fischer was the least of the three men and that Merrick Price was the most culpable. In terms his Honour found:
"...the material before me would indicate that you" - (I interpolate that this was a reference to Merrick Price) - "were much more deeply involved than those of your two co-offenders." (p.16)


Of the applicant his Honour said:

"...your criminal involvement was greater than your co-offender, Fischer, but less than your co-offender Price."
11 Alfred Fischer pleaded guilty to two offences of obtaining a valuable thing by deception. He asked the Court to take into account a further thirteen matters of a similar nature on a Form 1 pursuant to s 21 of the Criminal Procedure Act 1986. Both Mr Fischer’s offences involved the use of a Master Card which had been obtained under a false name. Some sixty-nine transactions were effected by use of the Master Cards involving goods and services to the value of $12,344.64 being fraudulently obtained. The thirteen matters on the Form 1 were said to have involved a total sum in excess of $54,000. Alfred Fischer was sentenced to an overall sentence of three years and three months, comprising a minimum term of two years three months and an additional term of one year.
12    Merrick Price pleaded guilty to three counts of dishonestly obtaining a valuable thing by deception. Additionally he asked the Court to take into account a further ten matters of a similar nature on a Form 1. The three matters the subject of the counts in the indictment all related to obtaining motor vehicles. The total value of the vehicles was in excess of $133,000. The vehicles were recovered however the financial institutions who advanced money in connection with their acquisition suffered losses. The total amount of the losses in connection with the Form 1 matters was in excess of $141,000.
13    Merrick Price was sentenced to an overall sentence of four years and nine months. The sentencing Judge made it clear that he considered the appropriate sentence for Mr Price was one of five years to be made up as to minimum term of three years and three months together with an additional term of twenty-one months. Mr Price had served three months in custody following his arrest and his Honour gave him credit for this by reducing the minimum term from one of three years to three months to one of three years. An addtional term of eighteen months was specified.
14 The first ground of challenge advanced by Mr Ramage QC for the applicant is that the sentence imposed was unduly harsh and severe. In written submissions it was put that the statistics maintained by the Judicial Commission of New South Wales (“the Commission”) relating to the sentencing of offenders for offences under s. 178BA placed the applicant's sentence as exceeding all but three per cent of cases. In oral submissions Mr Ramage acknowledges that the written submissions are of limited assistance in that they are confined to s. 178BA offences. The applicant, as I have noted, stood for sentence on a count under s. 300(2) of the Act which carries a maximum penalty of ten years' imprisonment. The statistics produced by the Commission with respect to that offence (in relation to offenders who enter a plea of guilty and who invite the Court to take into account matters pursuant to a Form 1) show that out of the relatively small sample of 13 offenders, 38 per cent received a minimum or fixed term of 36 months imprisonment. Turning to a consideration of the statistical picture with respect to the sentences imposed on all offenders in relation to s 300(2) offences, 16 per cent of the sample received a sentence of 54 months or more. The sample size in this case was 27 offenders. Twenty-three per cent of this sample group received a minimum or fixed term of 36 months or more.
15    Caution needs to be adopted with respect to the use made of the statistical material collected by the Commission for reasons explained in R v Bloomfield (1998) 44 NSWLR 734. It does not seem to me, when regard is had to the statistical information such as it is concerning the pattern of sentencing in respect to offences contrary to s. 300(2) that the applicant has made good a challenge that the sentence imposed in his case falls outside the range of the exercise of the sentencing judge’s discretion.
16    The second ground contends that the sentencing judge erred in “taking into account in the overall computation of the sentence the imposition of sentences of six months imprisonment for the breaches of recognisance”. Allied to this submission Mr Ramage contends that his Honour erred by “taking into account as an aggravating matter thus requiring a more severe sentence both the fact that the applicant was on a recognisance at the time of the commission of the offences and the breach of that recognisance”.
17    As I have noted on 18 September 1992 the applicant appeared before Judge Flannery in the District Court. He pleaded guilty to four counts of obtaining property by passing a cheque which was not paid on presentation. The period covered by the offences was less than a fortnight. They occurred in May 1989. In relation to these matters Flannery DCJ deferred passing sentence upon the applicant entering into a recognisance to be of good behaviour for five years and to appear for sentence if called upon at any time for any breach of that recognisance and conditioned upon the applicant paying the sum of $23,951.71 compensation. The compensation was to be paid by weekly instalments of $50, the first payment being on 28 September 1992.
18    In the course of his reasons for sentence his Honour Judge Kinchington noted:
"You are no stranger to the criminal justice system and at the time of your arrest on these charges you were subjected to a recognisance on a number of charges of obtaining property by means of passing valueless cheques…
….
You appeared before his Honour Judge Flannery on those charges and he put you on a recognisance conditional upon you paying compensation totalling just under $24,000. From what I can see from those papers you have failed to pay the majority of that compensation and his Honour directed that you be called up in respect of the apparent breach of those recognisances. In addition, of course, the matters of which I have convicted you would relate also to a breach of that recognisance even though it has now expired because the offences occurred during the period of the recognisance. His Honour has asked me to deal with you in respect of that breach which I am satisfied has been established."
19    His Honour went on to impose a fixed term sentence of six months (in each case) in respect of the breaches of the recognisance. Those sentences were concurrent with the sentences his Honour imposed in relation to the matters the subject of the indictment.
20    Mr Ramage notes that the recognisance was, in the period following its imposition, the subject of variations made by the Court on 31 March 1993 and again on 30 April 1997. In each instance it appears that the amount of the instalments had been reduced.
21    In his written submissions Mr Ramage observed:
"It is not apparent that the sentencing judge was aware at the time he sentenced the appellant of the purported variations or the above history in respect to the recognisance. However it is apparent from his remarks on sentence that he took into account and relied upon a belief that the appellant immediately owed the sum of $24,000 and had 'failed to pay the majority of that compensation'."
22    It appears on 19 June 1998 Judge Flannery directed that the applicant be called up in respect of the breaches and the matter duly came before Judge Kinchington on 28 August 1998. It is to be noted that the transcript of the proceedings on that day records that the Court file (relating to the breach of recognisance) was tendered. His Honour referred to the contents of it in the course of his reasons observing:
"From what I can see from those papers you have failed to pay the majority of that compensation ... "
23    It is to be borne in mind that his Honour was dealing, among other things, with a breach of the recognisance occasioned by the commission of the subject offences during its currency. I am not persuaded that his Honour erred in the approach that he took in imposing a six month concurrent sentence in respect of this matter.
24    As I have noted Mr Ramage complained that for his Honour to impose discrete sentences in relation to breaches of the recognisance and then to take the fact of the breach into account as a circumstance of aggravation when sentencing the applicant for the offences on the indictment, was to effectively impose a double punishment upon the applicant.
25    It does not seem to me that this is a correct analysis. His Honour sentenced with respect to the breaches for the offences for which the applicant had stood for sentence in September 1992 before his Honour Judge Flannery. Quite independently of this it was open to his Honour to have regard to the fact that the applicant was subject to a recognisance at the time of the commission of the subject offences which were of a broadly similar character.
26    It is important to keep in mind that his Honour structured the sentence such that the sentences imposed in relation to the breaches of the recognisance were concurrent and subsumed by the sentences imposed in relation to the indictable matters.
27    The applicant next challenged the sentences upon the basis that his Honour had failed to take into account the fact that the applicant had not previously served a term of imprisonment. Associated with this challenge was the submission that his Honour had failed to give consideration to alternatives to a sentence of full-time custody.
28    A pre-sentence report was before his Honour; it was in somewhat muted terms. It did assess the applicant as suitable both for a community service order and for periodic detention. Mr Ramage submits that for a 37-year-old man to face a term of imprisonment for the first time is a matter which should have weighed heavily upon the sentencing judge and inclined him to look carefully to the alternatives to full-time custody.
29    His Honour did not in terms refer to the circumstance that this was to be a first time the applicant would serve a sentence of imprisonment. He did make reference in the course of his reasons to the applicant's background and to his criminal record. His Honour went on to consider a number of circumstances favourable to the applicant. He found that the applicant was making a genuine effort to rehabilitate himself from a downturn in his life. It is plain from a reading of his Honour's reasons that he considered, having regard to the number and nature of the offences and to the sophistication of the scheme, that no sentence other than a sentence of full-time custody could meet the circumstances of the case.
30    It does not seem to me that his Honour fell into error in so concluding.
31    The sentence is further criticised upon considerations of parity. Mr Ramage submits that the applicant is entitled to entertain a justifiable sense of grievance in respect of his sentence when it is compared to that imposed on Fischer. As I have noted, his Honour made a finding that the applicant's culpability was greater than that of Mr Fischer and less than that of Mr Price. I do not understand Mr Ramage to have contended that it was not open to his Honour to make that finding. His Honour placed emphasis on the circumstance that the applicant had been responsible for engaging the services of the lady, Rebecca Boyle, who answered telephone inquiries from credit providers confirming details of the false information that had been furnished in various of the documents created as part of the scheme.
32    Of significance in dealing with the question of parity of sentence is the circumstance that the applicant was being dealt with in relation to one offence which carried a potential maximum sentence twice in excess of any sentence in which might be imposed on Mr Fischer.
33    The final matter in dealing with this question of parity is the emphasis that his Honour placed on the circumstance that the applicant was subject to the recognisance at the time of the commission of the offences.
34    Having regard to these matters it does not seem to me that there is substance to the challenge advanced on this ground.
35    In written submissions it was put that the sentencing judge had failed to give sufficient credit to the applicant in respect of his pleas of guilty. His Honour said this concerning the applicant’s plea of guilty:
"While it could not be said you pleaded guilty at the first reasonable opportunity, I am prepared to accept your pleas of guilty to these charges as genuine expressions of remorse and contrition for the criminal conduct in which you involved yourself over the period of time in question. In addition, by you pleading guilty to these charges, you have saved the community considerable expense because your trial would have been a lengthy one had you maintained your pleas of guilty. I have taken that factor into account in determining the sentences I must subject you to."
36    We have not been taken to the history of the matter in a detailed way such as to disclose the precise circumstances in which the applicant's pleas of guilty were entered. It is common ground that a jury had been empanelled at the time the pleas of guilty were recorded. I consider that his Honour approached the matter of the weight to be given to the pleas of guilty in an appropriate way. I should note that Mr Ramage developed this submission by putting it upon the basis that it revealed undisclosed error, it being his submission that if appropriate weight had been given to the pleas of guilty an overall sentence of this length would not have been imposed. For the reasons already given I do not consider that there is merit to that challenge.
37    Finally in written submissions it was put that his Honour erred in failing to take into account (or sufficiently to take into account) the applicant’s subjective circumstances including his drug addiction, the effect on him of the grave illness of his father, the loss of access to his child, and his endeavours to find employment. These matters were not taken up in the course of oral submissions. They are matters to which the sentencing judge made reference in his reasons for sentence. I do not consider that there is merit to this ground.
38    I am not of the view that the challenge to the sentence has been made good and I would propose that the application for leave to appeal be granted but that the appeal be dismissed.
39    STUDDERT J : I agree with Justice Bell and the orders of the Court therefore will be those proposed by her Honour.
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