Rooke v The Queen

[2011] NSWCCA 280

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Rooke v R [2011] NSWCCA 280
Hearing dates:	30 September 2011
Decision date:	16 December 2011
Before:	Whealy JA, Hislop J, Latham J
Decision:	Leave to appeal granted; appeal dismissed.
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Royal [2003] NSWCCA 260 Mitchell v R [2006] NSWCCA 72 Cranshaw v R [2009] NSWCCA 80 JOD v R [2009] NSWCCA 205 Stevens v R [2009] NSWCCA 260 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Holder [1983] 3 NSWLR 245 R v Mungomery [2004] NSWCCA 450, (2004) 151 A Crim R 376
Category:	Principal judgment
Parties:	Julien Peter Rooke v Regina
Representation:	I. Nash (Applicant) M. Cinque (Crown) Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/42910; 2009/54889; 2009/80420; 2009/130495
Decision under appeal	Date of Decision: 2010-10-01 00:00:00 Before: King SC DCJ File Number(s): 2009/42910

Judgment

1. WHEALY JA : I agree with Hislop J.

1. HISLOP J :

Introduction

The applicant was charged with 13 counts of using a false instrument with intent contrary to s 300(2) of the Crimes Act 1900 and seven counts of obtaining money by deception contrary to s 178BA(1) of the Crimes Act 1900. The maximum penalty for each of the s 300(2) offences is ten years imprisonment. The maximum penalty for each of the s 178BA(1) offences is five years imprisonment. No standard non parole period is applicable to either offence.

1. The applicant pleaded guilty to all charges. He received an effective sentence of five years four months imprisonment with a balance of term of two years.

1. In sentencing the applicant, 11 offences under s 178BA(1) and 16 offences under s 300(2) were taken into account on four Form 1 documents.

1. The relevant facts were the subject of written agreement. As his Honour stated in his remarks on sentence:

"The offences in general involved using false instruments to open false accounts or to transfer funds from the accounts of others to false accounts or to withdraw cash from the accounts of others."

1. The applicant has sought leave to appeal against sentence. The grounds of appeal are:

"1. His Honour erred in finding as a fact that the total amount of cash withdrawn by the offender was $373,430.00.

2. His Honour erred in the manner he took into account the applicant's participation in the methadone program when assessing his prospects for rehabilitation.

3. His Honour erred by taking into account the fact the applicant had not provided his version of events to the authorities before giving evidence on sentence.

4. The overall sentence is manifestly excessive."

Background

1. The applicant was born in England in 1969. His parents separated when he was three or four years of age. He commenced using alcohol at eight and cocaine and heroin at 14. His education was uneventful until year 8 when he commenced truanting. He rarely attended school thereafter, leaving in year 11. His behaviour stabilised when he was sent to live with his grandfather at age 16 or 17 and for a time he ceased using heroin. He then decided to move to Australia and for a time remained predominantly drug free. However, he settled in Sydney and became involved in the local drug scene. Prior to his imprisonment, he was a drug abuser with significant consumption, the main drugs of abuse being cocaine and heroin though he had engaged in the use of other drugs. After coming to Australia he worked intermittently for a time before turning to crime to support his drug use and because that use interfered with his ability to hold a job.

1. The applicant has a lengthy criminal history dating back to 1995. He has been convicted of a range of offences including offences of larceny, shoplifting, drive without a licence, goods in personal custody, obtain money by deception, armed with intent to commit an indictable offence, possess prohibited drug and supply prohibited drug. Many of these offences are either drug offences or likely to be related to ongoing drug use.

The offences

1. The subject offences were divided into six groups, namely offences which occurred between 24 October 2006 and 26 October 2006; 19 July 2007 and 14 August 2007; 8 October 2007 and 26 October 2007; 18 October 2007 and 22 November 2007; 13 December 2007; and 24 April 2008 and 14 May 2008.

1. At the time of committing the first group of offences, the applicant was subject to two sentences of nine months imprisonment with a non parole period of six months which had been suspended pursuant to s12 on 12 July 2006. The sentences were for the offences of being armed with intent to commit an indictable offence and shoplifting goods to the value of less than $2000. At the time of committing the second group of offences, the applicant was on parole, having been released to parole on 21 June 2007. At the time of committing the final group of offences, the applicant was on bail granted on 26 February 2008.

1. As his Honour correctly observed, the applicant's criminal history demonstrated an ongoing contempt for the law and the commission of offences whilst on conditional liberty was a significant aggravating circumstance.

1. His Honour said, correctly in my opinion:

"Each of the offences may be regarded as serious. All of the offences were pre-planned, involved substantial sums of money and were carried out by sophisticated means...

Offences of this type, involving the theft of identity and/or the creation of false identities to defraud individuals and financial institutions, have become increasingly prevalent in recent years. They are of serious concern, as they fundamentally undermine the financial institutions and the public confidence in those institutions. Both specific and general deterrence in respect of these matters must have a significant role to play in determining sentence."

1. His Honour allowed a discount of 25 percent for early pleas of guilty.

Ground 1 - His Honour erred in finding as a fact that the total amount of cash withdrawn by the offender was $373,430.00

1. The agreed facts sheet identified the amounts withdrawn and generally identified the applicant as the withdrawer. There were however three groups of withdrawals in respect of which the facts sheet was silent as to the identity of the withdrawer.

1. In his remarks on sentence, his Honour stated:

"The total amount of funds transferred or withdrawn is $468,186. The Court's calculation is that the total amount of cash withdrawn by the offender, either directly from the accounts of others or from false accounts set up by him, is a total of $373,430, with the exception of one amount of $5000 withdrawn on 24 October 2006 at the CBA Branch in Unley, South Australia, where the facts do not contain any reference to the offender as the person being the withdrawer."

1. The applicant submitted that his Honour erred in excluding only one of the three groups of withdrawals and that had he excluded all three the withdrawals by the applicant would have totalled $306,430.

1. The applicant contended the variance was material in assessing the seriousness of the case and the reduction in funds withdrawn by the applicant correspondingly increased the amount of funds withdrawn by other, unidentified, persons thus strengthening the inference that others were involved.

1. However his Honour was prepared to accept that there may have been other persons involved. The respondent did not dispute that the evidence suggested others must have been involved in the offence. The amount of funds involved was but one of the relevant factors in determining sentence.

1. As the applicant had pleaded guilty to all offences charged and had agreed to the facts sheet it may well be that the failure to refer to the applicant as the withdrawer of the three groups of withdrawals was simply an oversight on the part of the draftsperson.

1. It is however unnecessary to determine this question as, on either the applicant's or his Honour's figures, the total withdrawals fell within a range of approximately $300,000 to $400,000 and within that range, even if the alleged error was established, it would have little or no impact on sentence. It would not warrant a lesser sentence in law.

Ground 2 - His Honour erred in the manner he took into account the applicant's participation in the methadone program when assessing his prospects for rehabilitation

1. Whilst in custody the applicant had been on a methadone program, had been participating in the "Get Smart" program and attending Narcotics Anonymous meetings. He said that when released, he would cease offending by attending Narcotics Anonymous and any counselling available. He said, in effect, that his vision was now clearer because he was drug free.

1. His Honour said:

"It is to be hoped that those were genuine expressions of remorse, contrition and a commitment to cease offending, however the applicant was not an impressive witness in this respect."

1. His Honour in his remarks on sentence concluded:

"While it is said that he is 'not unwilling' to accept help, and claims a greater awareness of the need to cease drug use, the fact that while in custody since June 2008 he has continued on a methadone program does not indicate a good prospect that he can address his drug problem, which continues. Clearly, in the absence of ceasing drug use when released, his criminal conduct is unlikely to cease."

1. His Honour also said:

"The Court cannot find, in the circumstances...that there is a good prospect of rehabilitation. That is not to say that there is no prospect of rehabilitation. Rehabilitation is unlikely to occur until the offender can cease using prohibited drugs. The fact that, after more than two years in prison, he continues on a methadone program, indicates that he is yet to genuinely embrace the need for change."

1. The applicant submitted that the above remarks reflected a finding by his Honour that continued participation in the methadone program for over two years whilst in prison was a fact that strongly indicated the applicant's drug problems remained unaddressed.

1. The applicant submitted that the finding was not open on the evidence, that it was not an available inference and that, accordingly, his Honour erred in the manner he took into account the applicant's participation in the methadone program when assessing his prospects for rehabilitation.

1. The applicant also submitted that if proper regard had been had to the applicant's participation in the program, it would have supported a finding that the applicant's prospects of rehabilitation were more positive than that found by the sentencing judge.

1. However, his Honour in assessing the applicant's prospects for rehabilitation properly had regard to the following matters:

(a) the applicant was aged 41 at the time of sentence;

(b) at the time of his arrest the applicant was a significant user of drugs, particularly cocaine and heroin and had been for many years;

(c) such assistance as had been available to him in the past had had little, if any, effect;

(d) the involvement in offences whilst on parole demonstrated that the court could not proceed on the same expectation of rehabilitation that was open in other circumstances;

(e) the applicant was not an impressive witness in relation to his commitment to cease offending;

(f) methadone was a replacement for another drug;

(g) the applicant had given evidence that he had been unable to do certain rehabilitation programmes because he was required to be methadone free before he would be accepted;

(h) the applicant had never completed any drug and/or alcohol rehabilitation programme successfully;

(i) he told the psychologist that he had a mental addiction to cocaine and heroin;

(j) he said he was still on methadone after two years and four months as he did not really feel that he was able to get off the methadone.

1. His Honour's conclusion that the applicant's prospects of rehabilitation were not good though not non-existent, was amply justified on the whole of the evidence before him. Even if the alleged error was established, it would not be sufficient to establish that a lesser sentence in law was required.

Ground 3 - His Honour erred by taking into account the fact the applicant had not provided his version of events to the authorities before giving evidence on sentence

1. The applicant gave evidence on sentence. His Honour said of this:

"In evidence, the offender attempted to diminish his role by claiming that he did not have the major role and that what he did was the least significant part of committing the offences. He claimed that he was, in effect, a subservient lackey to unidentified (except as to being Jian, John, Sam or Steve) and otherwise unidentifiable persons, unlocatable by him.

He claimed his involvement arose from a drug deal in the early 2000's, resulting from his being arrested before he could sell the drugs, and that when released from gaol in 2003, he was pursued to repay the cost of the lost drugs. He said that that person had introduced him 'in a round about way' to the person Sam and/or Steve, who would collect him from wherever he was and drive him to the banks to obtain the money. That all the money went to them, except that he believed that five percent might be used to pay off the drug debt from the early 2000's, and that he received five percent."

1. As his Honour observed:

"There is nothing contained in the evidence before the Court that suggests he had ever provided this version of events or story to the authorities before giving evidence on sentence. The Court is prepared to accept that there may have been other persons involved, but does not accept that, if there were others involved, the offender's evidence was truthful either as to his inability to identify them or how much of the monies withdrawn be provided to them, if they existed."

1. The applicant sought to have his sentence mitigated by the provision of a version of events on sentence disclosed for the first time at the sentencing hearing. The onus was on him to establish it on the balance of probabilities - The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

1. The applicant had ample opportunity to provide this version of events prior to the sentencing as the sentencing proceedings were adjourned on the application of his legal representatives on a number of occasions. At the sentencing hearing the report of a psychologist dated 26 February 2010 was tendered. It contained no reference to the version of the facts which the applicant sought to rely upon; rather it recorded:

"He explained that he committed the offences to fund his heroin addiction. Specifically, Mr Rooke informed that as a result of his excessive heroin use, he had generated significant debt, hence he 'fell into fraud' in an attempt to sustain his addiction."

1. His Honour was entitled to decline to accept such of the applicant's evidence on this matter as he did.

Ground 4 - The overall sentence is manifestly excessive

1. In support of this ground, the applicant sought to establish the sentence was manifestly excessive by reviewing five allegedly comparable cases: R v Royal [2003] NSWCCA 260 (sentence two years one month with a balance of term of one year two months), Mitchell v R [2006] NSWCCA 72 (sentence three years two months with a balance of term of one year ten months), Cranshaw v R [2009] NSWCCA 80 (sentence two years six months with balance of term of one year four months), JOD v R [2009] NSWCCA 205 (sentence four years with a balance of term of two years), and Stevens v R [2009] NSWCCA 260 (sentence six years three months with a balance of term of two years three months). He also made reference to the range identified in Mitchell . He submitted by reference to these cases that the overall sentence was manifestly excessive.

1. In Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27] the High Court held:

"As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."

1. As there is no single correct sentence, it is necessary for the appeal court to evaluate the permissible range of sentence in the light of all the admissible considerations affecting the case in hand and drawing upon its own accumulated knowledge and experience: R v Holder [1983] 3 NSWLR 245 at 254 in order to determine if the sentence imposed is so excessive as to manifest error.

1. In evaluating the sentence, the court may have regard to similar cases in determining sentence patterns and the appropriate sentencing range though caution must be exercised in the use of such material as the sentence depends on the facts of each case.

1. A sentencing judge is not bound by earlier decisions upon the facts of the individual case. As Spigelman CJ observed in R v Mungomery [2004] NSWCCA 450, (2004) 151 A Crim R 376:

"...the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition."

1. The allegedly comparable cases exhibit a number of differences to the subject case.

1. In Royal the difference was there were only five counts with an additional six matters on a Form 1; the period of offending was one month; the offender had no prior convictions and the offences charged were under s 178BA, the maximum penalty of which was half the maximum penalty for offences under s 300(2); there was no offending whilst on conditional liberty.

1. In Mitchell there were 13 counts; they were all under s 178BA; the period of offending was over approximately three years; and there was no offending whilst on conditional liberty. Mitchell was in a position of trust.

1. In Cranshaw the offender had no relevant prior criminal history and received a 45 percent discount for plea and assistance and there was no offending whilst on conditional liberty.

1. In JOD there was a 35 percent discount for early plea and assistance; there were 73 fraud related offences, 26 s178BA and 22 s300(2) matters, the offender was a member of an organised crime syndicate.

1. In Stevens there were 11 counts committed over 16 years, some whilst on conditional liberty. The amount involved was $402,935.

1. In Mitchell reference was made to offences involving similar amounts of money (between $319,00 and $490,000) where sentences imposed in respect of those matters was between 30 months and 6 1/2 years.

1. In Stevens Spigelman CJ said at [1]:

"I agree with McClellan CJ at CL. I wish to specifically express my agreement with his Honour's observations on the significance of general deterrence for identity crimes both in terms of identity theft, and in terms of the use of a fabricated or manipulated identity.

2 Past sentencing practices with respect to the offence of obtaining a benefit by deception, contrary to s 178BA of the Crimes Act 1900, must be treated with some care in this regard."

1. Consideration of these authorities confirms that the sentence imposed by his Honour was within the range that was reasonably open to him.

Conclusion

1. In my opinion, his Honour's overall effective sentence of five years four months with an additional term of two years was within the available range. It has not been established that a lesser sentence is warranted in law - s6(3) of the Criminal Appeal Act 1912.

1. I propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

1. LATHAM J: I agree with Hislop J.

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Decision last updated: 19 December 2011