Singh v The State of Western Australia
[2023] WASCA 31
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SINGH -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 31
CORAM: MAZZA JA
BEECH JA
HALL JA
HEARD: 7 FEBRUARY 2023
DELIVERED : 7 FEBRUARY 2023
PUBLISHED : 14 FEBRUARY 2023
FILE NO/S: CACR 33 of 2022
BETWEEN: PARGAT SINGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND 2153 of 2021
Catchwords:
Criminal law and sentencing - Multiple counts of fraud - Offences committed over four years involving more than $1.4 million - After pleas of guilty, offender sentenced to total term of 8 years' imprisonment - Whether sentence infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 409(1)
Result:
Application for extension of time refused
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | F Veltman |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Frances Veltman |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barrett v The State of Western Australia [2007] WASCA 21
Chadd v The State of Western Australia [2013] WASCA 99
NI v The State of Western Australia [2020] WASCA 78
Nikaghanri v The State of Western Australia [2009] WASCA 192
Pennetta v The State of Western Australia [2013] WASCA 234
Pollock v The State of Western Australia [2011] WASCA 133
Skelly v The State of Western Australia [2020] WASCA 3
The State of Western Australia v Chapman [2012] WASCA 203
Wittensleger v The State of Western Australia [2014] WASCA 205
REASONS OF THE COURT:
Introduction
The appellant challenges his total effective sentence of 8 years' imprisonment, imposed following his conviction, on his pleas of guilty, of:
(a)10 counts of fraud (by causing a pecuniary detriment), contrary to s 409(1)(d) of the Criminal Code (WA) (the Code);
(b)one count of property laundering (by engaging in a transaction involving proceeds of an offence), contrary to s 563A(1)(a) of the Code; and
(c)one count of preparation for forgery (by possessing documents - namely, a document purporting to be from the Australian Federal Police - for an unlawful purpose), contrary to s 474(1) of the Code.
The appellant was engaged by Mr Samuel Kilsby to develop a software application, called the Real Pussy Player (the app), suitable for adult entertainment on mobile devices. Between September 2014 and November 2018, the appellant made a series of fraudulent representations to Mr Kilsby, including by creating several fictitious persons who and entities that purportedly communicated with Mr Kilsby. The substance of the representations was to the effect that various businesses in the adult entertainment industry were interested in purchasing the app for substantial sums of money. By that fraudulent conduct, the appellant defrauded Mr Kilsby and nine other individuals, who were introduced to the apparent project by Mr Kilsby, of a total of $1,462,461.70.
The appellant contends that his total effective sentence of 8 years' imprisonment breaches the first limb of the totality principle.
There is no merit in that contention. At the completion of the appellant's oral submissions, the court pronounced the following orders:
(1)The application for an extension of time to appeal is refused.
(2)The application for leave to appeal is refused.
(3)The appeal is dismissed.
These are our reasons for making those orders.
The facts
It is necessary to recount the facts in some detail, as evaluation of the criminality of the appellant's offending requires attention to the elaborate and numerous steps he took in pursuit of his plan to defraud Mr Kilsby and others.
The following facts were stated by the prosecutor before the sentencing judge, were not disputed by the appellant and were adopted by the sentencing judge.[1]
[1] ts 20 - 28, 32 - 34, 39 - 40; see also the Statement of Material Facts: AB 78 - 87.
In September 2014, the appellant, who owned a company called Techcom Pty Ltd, answered Mr Kilsby's online advertisement seeking a software developer for the app. Mr Kilsby had conceived and developed the underlying idea and had registered a patent. Following a meeting with the appellant, Mr Kilsby was satisfied the appellant could develop the app consistent with Mr Kilsby's wishes. On 25 September 2014, the appellant and Mr Kilsby entered into an agreement for programming and software development; the agreement was signed in the presence of Mr Kilsby's mother‑in‑law, Frances Kilsby,[2] at Techcom's offices.
The 10 fraud counts
[2] Frances Kilsby is referred to as Mr Kilsby's mother-in-law in both the appellant's and the respondent's written submissions. We proceed on that basis.
On 26 September 2014, Frances Kilsby transferred $25,000 to the appellant for the purpose of commencing the app development process. Frances Kilsby made additional transfers of varying amounts similarly for the purpose of software development.
A few months later, the appellant told Mr Kilsby that Pornhub.com/Pornhub Solutions (Pornhub), which Mr Kilsby understood to be the well‑known adult entertainment provider, was interested in purchasing the app and its patents for €9 million.
On 4 April 2015, Mr Kilsby received a proposal to purchase the app signed by 'James Smith' of Pornhub Solutions. Both Mr Smith and Pornhub Solutions were fictional entities the appellant had created.
On 6 May 2015, Mr Kilsby began email communication with Mr Smith, copying in the appellant on the emails. Through this email exchange:
(1)It was agreed that Pornhub would pay approximately €9 million for the app and its patents.
(2)Mr Smith explained that an ANZ Bank cheque in the sum of $900,000 would be prepared as a deposit, with the cheque being future dated to allow time for the app to be developed.
All communication purporting to be from Mr Smith was authored and sent by the appellant.
The appellant advised Mr Kilsby that to proceed with the proposed Pornhub sale, the app would require further programming, which would, in turn, involve additional costs. On 27 and 28 May 2015, Mr Kilsby transferred two amounts of $20,000 into the appellant's bank account (part of count 2).
On 5 June 2015, at Techcom's offices, the appellant showed Mr Kilsby and his wife a fraudulent and future-dated ANZ Bank cheque for $900,000.
On 9 June 2015, Mr Kilsby transferred another $20,000 into the appellant's account (part of count 2), following which the appellant provided to Mr Kilsby what purported to be an offer from Pornhub to purchase the app. The offer was dated 8 June 2015, and it was purported to be signed by 'Michael Bourlakis' of Pornhub. Mr Kilsby understood that the appellant had personally witnessed the signing of this offer document in the Netherlands. All documents and correspondence purporting to be from Mr Bourlakis had been authored by the appellant.
The appellant told Mr Kilsby that Pornhub wanted a 'bridge' feature to be added to the app, the development of which, the appellant told Mr Kilsby, would cost a further $140,000.
Based on what the appellant had said, Mr Kilsby approached Frances Kilsby for further investment funds. In total, Frances Kilsby invested $557,361.70 towards what she believed to be the app's development, believing such development was in furtherance of the app's sale (count 1). Frances Kilsby financed this through superannuation funds and refinancing a property.
As a result of the appellant's representations to Mr Kilsby, Frances Kilsby also approached her son Louie Mosscrop to invest in the project. Between July 2015 and December 2016, Mr Mosscrop transferred to the appellant a total of $71,700 (count 3).
On 19 December 2015, the appellant and Mr Kilsby travelled to Pattaya, Thailand, purportedly for the purpose of meeting Mr Bourlakis to sign paperwork and receive payment for the Pornhub deal. Instead, they met with a man named Assad Mohamad. Mr Kilsby paid for his and the appellant's flights and, on the appellant's recommendation, paid for Mr Mohamad's hotel room. Mr Kilsby was provided with an HSBC summary statement, outlining the transfer of €10,946,000 into Mr Kilsby's bank account.
In late December 2015, after returning to Perth, when Mr Kilsby had yet to receive any funds in his account, the appellant reassured Mr Kilsby the transfer would come through. Mr Kilsby later realised he had provided an incorrect account number and immediately contacted the appellant to inform him. The appellant told Mr Kilsby there was no way Pornhub would pay again, and that he would contact Mr Mohamad but Mr Kilsby was not to contact Pornhub.
On 17 February 2016, Mr Kilsby received an email purporting to be from Mr Bourlakis, in which it was suggested Pornhub:
(1)was unhappy with the repayment issue;
(2)was happy to deal directly with Mr Kilsby; and
(3)wanted to cut the appellant out of the deal entirely, due to his unprofessionalism.
The appellant then told Mr Kilsby it would cost $160,000 for the appellant to be bought out of the project. For this purpose, Mr Kilsby sought investors, as a result of which Adamo Scriva transferred $80,000 to the appellant on 26 February 2016 (part of count 5), and Anthony Pansini transferred $80,000 to the appellant on 29 February 2016 (part of count 4).
Following months without communication from Pornhub, Mr Kilsby, believing the deal was no longer going ahead, signed a sale contract termination letter the appellant presented to him on 4 July 2016.
Later in 2016, the appellant told Mr Kilsby he had found another interested purchaser of the app, suggesting that a deal was in progress with an American broker named Edward Hernandez, another fictional character created by the appellant. The appellant sent Mr Kilsby a photograph of a letter and offer, which had been created by the appellant.
The appellant suggested a presentation needed to be made to Mr Hernandez and told Mr Kilsby to seek out further investors to cover the $150,000 required to meet associated costs of research, market analysis and travel.[3]
[3] Although the transcript records the prosecutor as saying $15,000, it is clear from the statement of material facts, which was read by the prosecutor and evidently followed by the sentencing judge, that the amount was $150,000.
Frances Kilsby suggested to Mr Kilsby that her friend Kelly Hatch was interested in investing; Ms Hatch refinanced her home and invested $155,000 (count 6).[4]
[4] ts 23 - 24.
On 12 August 2016, Pornhub apparently resumed contact with Mr Kilsby. On 2 November 2016, Mr Kilsby received an email from 'Jacqui' at 'Pornhub Finance', with Jacqui being another fictional character created by the appellant.[5] The email stated that Pornhub was aware of an impending deal with an alternative purchaser and wanted to meet with Mr Kilsby on 4 November 2016.[6] Mr Pansini transferred $20,000 to Mr Kilsby to enable Mr Kilsby to travel to Thailand with the appellant with a view to securing the Pornhub deal (part of count 4).[7]
[5] ts 24.
[6] ts 24.
[7] ts 24.
Mr Kilsby and the appellant travelled to Thailand on 3 November 2016.[8] While in Thailand, the appellant told Mr Kilsby that he had met with Jacqui and Mr Mohamad at another hotel in Pattaya in Mr Kilsby's absence.[9]
[8] ts 24.
[9] ts 24.
While in Thailand, a second deal was purported to be struck with a buyer from Singapore for the purchase of a desktop version of the app.[10] The appellant told Mr Kilsby that the broker's name was 'Stafiano Christian', being a fictional character of the appellant's creation, who represented XVideos, a prominent company in the adult entertainment industry. The appellant also told Mr Kilsby that he had met with Mr Christian and did not want Mr Kilsby to be present at the meeting. The appellant and Mr Kilsby discussed costs to develop the desktop version of the app, which Mr Kilsby said he could not afford.
[10] ts 24.
Between August 2016 and June 2018, Mr Kilsby's mother, Joanne Raven, paid amounts totalling $90,400 for the purpose of funding the app's desktop version (count 7).
After returning from Thailand, Mr Kilsby agreed to terms for the sale of the app's desktop version, purportedly brokered by the appellant, for over $52 million. The appellant told Mr Kilsby that:
(1)The buyer, Amaud Petit, who was another fictional character of the appellant's creation, and Mr Christian had flown into Perth on 25 January 2017, and the appellant had met with them and obtained their signatures before the pair flew on to Melbourne.
(2)It had been agreed that the seller would invest $100,000, and the broker, Mr Christian, would contribute $400,000 towards the desktop version's development.
The appellant went to Mr Kilsby's house so that Mr Kilsby and his wife could sign the contracts purportedly signed earlier by Mr Petit and Mr Christian. The appellant provided documents to Mr Kilsby purportedly showing $500,000 in escrow.
At the same time as this deal with XVideos was brokered, the appellant purported to receive emails from Pornhub, indicating that Pornhub again wished to meet with the appellant in Thailand to facilitate a deal. On 24 February 2017, Mr Kilsby transferred $4,000 to the appellant for the purpose of travelling to Thailand to meet with (the fictional) Pornhub representatives. On 1 March 2017, the appellant sent Mr Kilsby a photograph of a completed deal with Pornhub worth €10 million.
Mr Kilsby then received contact purportedly from Pornhub suggesting Mr Kilsby had engaged in 'double dealing', and cancelling the deal with Pornhub. The email requested compensation and threatened to ruin the deal with XVideos. The appellant told Mr Kilsby that Pornhub had agreed to $360,000 in compensation.
As a result, Mr Kilsby sought assistance from his uncle David Robertson, family friend Lynette McQuillan, and Patrick Foley, all of whom transferred money to Mr Kilsby for the proposed compensation (counts 8, 10 and 11, respectively). Further funds were borrowed from Mr Kilsby's father‑in‑law, Glenn Mosscrop, although this was not the subject of a charge.
Mr Kilsby then transferred $190,000 to the appellant, who purportedly flew to Morocco to facilitate the compensation. The appellant presented Mr Kilsby with documents, purporting to be from WorldFirst, demonstrating that the compensation had been paid.
Mr Christian continued to purport to communicate with Mr Kilsby via email and WhatsApp. He arranged to meet with Mr Kilsby on 8 August 2017 to finalise the XVideos deal, but he did not attend the proposed meeting, instead telling Mr Kilsby he would be able to settle the deal in February 2018.
The appellant suggested that he would directly contact an alternative person at XVideos about the settlement delay. Mr Christian informed Mr Kilsby that he had become aware of this communication attempt and viewed it as an attempt to cut him out of the deal. The appellant informed Mr Kilsby that the money held in escrow would go to the broker, due to the breach of contract. Thereafter, Mr Kilsby had no further communication with Mr Christian.
On 22 May 2018, a man said to be called 'Junaid' from Pornhub contacted Mr Kilsby via SMS and offered to pay $31 million for the app and the desktop version. For the purpose of paying programmers to complete the app, Junaid, another fictional character of the appellant's creation, sent Mr Kilsby $100,000 worth of Bitcoin, which Mr Kilsby then transferred to the appellant's broker.
The appellant told Mr Kilsby that his signature was required to authorise handover of the product by the programmers to Pornhub; Mr Kilsby signed the authorisation document.
By October 2018, Mr Kilsby and the other investors had begun to suspect they were the subjects of a scam and, accordingly, despite the appellant's statements to Mr Kilsby that further investment was required in respect of a patent that was to be transferred as a part of the sale, Mr Kilsby made no further transfers to the appellant.
Following the seizure of several computer hard drives during the execution of a search warrant at the appellant's address, Technology Crime Services confirmed that emails purportedly sent from Pornhub originated from the appellant's computer service.
The appellant received a total of $1,462,461.70, as already noted, by 67 cash transfers.
The count of property laundering
On 22 February 2017, the appellant transferred $116,000, being funds obtained as a result of his fraudulent conduct, to the Kasikornbank account of his brother Vikram Jeet Singh, who lives in Thailand (count 9).
The count of preparation for forgery
Technology Crime Services' review of an Orico hard drive seized from the appellant's address revealed a reference that purported to be from the Australian Federal Police and was for the benefit of the appellant; the Word document's properties revealed the appellant was the author (count 12).
The appellant's personal circumstances
At the time of his sentencing, the appellant was 35. He was born in a village in the Punjab region of India and is the youngest of three children.
The appellant's father passed away in 2016, which had a profound impact on the appellant. The appellant's mother currently lives in the Punjab region of India, while his sister lives in Canada and his brother lives in Thailand.
The appellant moved to Australia in 2004 to study information technology in Sydney. He moved to Perth in 2006 to pursue further education and work opportunities.
The appellant's only significant relationship has been with his wife, whom he married in 2008. The two have a daughter, who, at the time of sentencing, was 11. The appellant and his wife separated in around 2016, but, for logistical reasons, continued to live in the same house. At the time of sentencing, the two were not yet divorced, but divorce was foreshadowed.
The appellant had a varied work history, including working in fast‑food delivery and as a furniture removalist.[11] In 2011, the appellant started a software business.
[11] ts 44.
Sentencing remarks
Aggravating factors
The judge identified six factors reflecting the seriousness of the appellant's offending:
(1)The amount defrauded: The appellant derived $1,462,461.70 through the course of his offending.[12]
[12] ts 40.
(2)The duration and persistence of the offending: There were 67 cash transfers over a period of almost four years.[13]
[13] ts 40.
(3)The level of deception in which the appellant engaged to hide his offending: The judge characterised the appellant's fraud as 'highly sophisticated, extensive and sustained' and noted his agreement with the prosecutor that the conduct was 'deliberate, brazen and sustained'.[14] The judge found that no later than the beginning of April 2015, the appellant did not intend to develop the app for Mr Kilsby, with the appellant's subsequent actions intended to conceal this.[15] These subsequent actions include the appellant's:
[14] ts 41.
[15] ts 41.
(a)creation of at least seven fictitious people and a number of fictitious corporate entities, the latter of which were designed to appear related to well-known adult entertainment businesses;
(b)engagement in correspondence, including via emails copying in Mr Kilsby;
(c)creation of fictious documents, including:
(i)a future-dated ANZ Bank cheque made payable to Mr Kilsby;
(ii)sale documentation from Pornhub Solutions;
(iii)an HSBC summary statement outlining that nearly €11 million be transferred into Mr Kilsby's account;
(iv)letters purporting to be from the American broker Mr Hernandez; and
(v)documents showing half a million dollars held in trust;
(d)orchestration of two trips to be taken by the appellant and Mr Kilsby to Thailand, for which Mr Kilsby paid, as well as additional trips to be taken solely by the appellant to Thailand and potentially to Morocco; and
(e)arrangement for others, including Mr Mohamad, to make cameo appearances in the appellant's fraud.[16]
(4)The abuse of the trust Mr Kilsby placed in the appellant: The judge said the appellant went to great lengths to cultivate Mr Kilsby's trust through false representations that convinced Mr Kilsby of the authenticity of the proposed deals. That, in turn, prompted Mr Kilsby to turn to people who knew and trusted him to secure investment funds.[17]
(5)The reason for the appellant's offending: The judge agreed with the prosecutor that the offending was motivated by greed and not need.[18] The appellant was using the moneys received through the fraud to fund his gambling addiction and lifestyle, as well as to gain personal benefits, including flights and accommodation.[19]
(6)The impact on the 10 victims: The judge identified some recurring themes in the victim impact statements:
(a)The victims were ordinary and hardworking members of the community, none of whom was a sophisticated investor.[20]
(b)The victims were devastated by the financial losses sustained. Some lost their homes or are unable to meet health or other ordinary living expenses. Others now have to forgo many of the things they used to be able to enjoy.[21]
(c)The victims have suffered a profound psychological impact - including depression, panic attacks, and feelings of shame and hopelessness - and some require counselling to overcome this impact.[22]
(d)The victims' relationships have suffered, with some feeling responsible for involving others, some losing friendships, and others speaking of no longer being able to support their families.[23]
[16] ts 41.
[17] ts 41.
[18] ts 41.
[19] ts 41.
[20] ts 42.
[21] ts 42.
[22] ts 42.
[23] ts 42.
The judge observed that the appellant's offending was 'a particularly serious example of this type of offending'.[24]
Mitigating factors
[24] ts 42.
The judge found the only mitigating factor was the appellant's plea of guilty about three weeks prior to the trial's commencement, which the judge said warranted a 10% reduction of the head sentence that would have otherwise been imposed.[25] In pleading guilty, the judge observed that the appellant enabled the avoidance of a lengthy trial and spared the 10 victims from having to give evidence.[26]
Other sentencing factors
[25] ts 43.
[26] ts 43.
The judge did not accept the appellant's submission that the appellant's prolonged fraud was driven by extreme alcohol and/or gambling addiction, and the judge did not accept that the traumatic events of the appellant's life had led him to commit the offences.[27] The judge was also not satisfied that the appellant had remorse for his offending.[28]
[27] ts 44 - 45.
[28] ts 45.
As to the appellant's criminal record and its relationship to the current offending, the judge noted the following:
(1)The appellant had prior convictions on two counts of gaining a benefit by fraud.[29]
(2)The appellant's current offending began about a year after he finished a suspended term of imprisonment for his prior offending.[30]
(3)It was of some significance that the appellant told the writer of a pre-sentence report in respect of his prior offending that he regretted his actions, they were a one-off, and he would not place another person in the same predicament.[31] Through the current offending, the judge said, the appellant had 'placed 10 other people in exactly the same predicament'.[32] The judge nonetheless accepted that the sentence for the appellant's prior offending and the failure of that sentence to deter the appellant from further offending were not, of themselves, aggravating factors.[33]
(4)However, the judge found the appellant's current offending was 'an escalation in the nature, extent and … sophistication' of the appellant's prior offending, demonstrating a need for the court to impose a firm penalty to (a) deter the appellant from further offending of this type, and (b) protect the community.[34]
[29] ts 45.
[30] ts 45.
[31] ts 45.
[32] ts 45.
[33] ts 45.
[34] ts 45.
The judge noted that the appellant had engaged in 'advance fee fraud' - the purpose of which is to trick victims into parting with a relatively modest amount of funds by persuading them that they will receive a substantial benefit in return - and there was a clear need to impose a sentence sufficient to deter others who might be tempted to engage in the same.[35]
[35] ts 46.
The judge observed that the appellant's offending was 'a very serious example of each type of offence. It was deliberate, systematic, planned, and brazen,' and the advantage the appellant took of Mr Kilsby's trust - and, by extension, the trust other victims had in Mr Kilsby - was 'nothing short of callous'.[36]
[36] ts 46.
The judge considered that it is difficult to imagine any of the victims recovering financially from the appellant's offending.[37]
[37] ts 46.
The judge was satisfied that, in all of the circumstances, the seriousness of the appellant's offending was such that terms of imprisonment were the only justifiable outcome.[38]
[38] ts 46.
The judge observed that the fact the appellant had committed so many offences against so many victims over four years justified a strong measure of accumulation in his sentencing.[39]
Sentences imposed
[39] ts 47.
The judge imposed terms of immediate imprisonment for each count, as follows:
(1)count 1 - 4 years
(2)count 2 - 2 years;
(3)count 3 - 2 years;
(4)count 4 - 2 years;
(5)count 5 - 3 years;
(6)count 6 - 3 years;
(7)count 7 - 3 years;
(8)count 8 - 2 years;
(9)count 9 - 2 years;
(10)count 10 - 3 years;
(11)count 11 - 2 years; and
(12)count 12 - 1 year.
Count 1 was made the head sentence, with counts 2 and 3 ordered to be served cumulatively and the remainder concurrently.[40]
[40] ts 47.
In the judge's view, a total effective sentence of 8 years bore a proper relationship to the overall criminality involved in the offences, viewed in their entirety, and having regard to all relevant circumstances, including those referable to the appellant personally, as well as to sentences imposed in comparable cases.[41]
[41] ts 47.
The appellant's term of imprisonment was backdated to 27 April 2021. The judge made the appellant eligible for parole.[42]
[42] ts 49.
Ground of appeal
The appellant's sole ground of appeal asserts that the total effective sentence of 8 years' imprisonment infringes the first limb of the totality principle.
Appellant's submissions
The appellant alleges implied error in that the overall sentence breached the first limb of the totality principle.[43] In particular, the appellant alleges that the judge erred in making count 2 and count 3 cumulative on count 1.[44]
[43] Appellant's submissions [58].
[44] Appellant's submissions [60].
The appellant submits that all of the offences were linked to one set of circumstances, in that all related to the appellant's fraudulent representation that Pornhub was interested in purchasing the app and its patents from Mr Kilsby for €9 million.[45]
[45] Appellant's submissions [62].
In support of his submission that the total effective sentence of 8 years is too severe and does not bear a proper relationship to the overall criminality of the offending, the appellant cites NI v The State of Western Australia,[46] Skelly v The State of Western Australia[47] and Wittensleger v The State of Western Australia.[48]
[46] NI v The State of Western Australia [2020] WASCA 78.
[47] Skelly v The State of Western Australia [2020] WASCA 3.
[48] Wittensleger v The State of Western Australia [2014] WASCA 205.
The appellant submits, in conclusion, that notwithstanding the admittedly limited mitigating factors, having regard to the circumstances of the offences, the appellant's personal circumstances and sentencing standards, the overall sentence of 8 years is in breach of the totality principle and does not bear a proper relationship to the overall criminality of the appellant's offending.[49]
[49] Appellant's submissions [80] - [81].
Totality and implied error - general principles
The general principles governing appeals contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle - for example, by mistaking the law or facts, or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety and having regard to (a) all relevant facts and circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), (b) all relevant sentencing factors, and (c) the total effective sentences imposed in comparable cases.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the sentencing range.
Disposition
The appellant committed 10 offences of fraud, the maximum sentence for which is 7 years' imprisonment. He also committed an offence of property laundering, for which the maximum is 20 years' imprisonment, and an offence of preparation for forgery, which has a maximum of 3 years' imprisonment.
The appellant's fraud offending had a number of features which, taken together, amply justify the sentencing judge's description of the appellant's offending as a particularly serious example of offending of this kind:
(1)By his offending, the appellant defrauded his victims of a total of almost $1.5 million. None of that money has been repaid.
(2)The appellant's offending spanned more than four years.
(3)The appellant's offending was not constituted by the maintenance or repetition of a single continuing false representation. Rather, over the period of his offending, applying considerable imagination and ingenuity, the appellant designed and implemented numerous additional false representations so as to induce the advancement of further funds to him. He engaged in an elaborate fraudulent scheme involving a series of fictitious persons, companies and documents. He repeatedly manufactured ongoing extensive chains of communication between fictitious persons he had created and Mr Kilsby.
(4)The appellant was motivated by greed, committing his offences to fund his lifestyle and his gambling addiction.
(5)The appellant's offending involved 10 victims. It is true, as the appellant's counsel emphasised to the sentencing judge, that the appellant dealt personally only with one victim, namely Mr Kilsby. However, by his plea of guilty, the appellant admitted that, by his fraud, he caused detriment to each of his victims, the detriment being the money each of them paid away in pursuit of the mythical project created by the appellant as an instrument to obtain money for himself. Moreover, there can be no doubt that the appellant was aware that Mr Kilsby was not the source of all of the funds being paid towards the purported project. For example, in about mid‑2016, the appellant told Mr Kilsby to seek further investors to cover the additional $150,000 needed.[50] Later that year, while in Thailand, the appellant and Mr Kilsby discussed the cost of developing the desktop version, which Mr Kilsby said he could not afford. There is no basis to suppose, and the appellant could not have believed, that substantial funds became available to Mr Kilsby after this discussion to fund all of the payments he made to the appellant. Thus, the appellant must have known that at least a substantial part of the funds he obtained from Mr Kilsby thereafter came from others.
(6)The appellant's offending has had a devastating effect on his victims. The victim impact statements catalogue the enormous and enduring financial and psychological consequences of the appellant's offending for his victims. Sadly, for a number of his victims, it can fairly be said that life will never be the same.
[50] See [26] above.
As the sentencing judge observed, this combination of features, particularly the second, third and fifth of them, justified and required a substantial degree of accumulation of the sentences for individual offences.
The appellant commenced this offending about two years after being convicted of two counts of fraud and about a year after completing a suspended term of imprisonment for that offending. That, and the escalation of that offending by the current offending, reinforced the need to give weight to personal deterrence.
It should not be overlooked that, in addition to the 10 fraud counts, the appellant committed an offence of property laundering and one of preparation for forgery. While the sentences for these offences were made concurrent with other sentences, these offences are nevertheless relevant to the evaluation of the appellant's overall criminality for the purposes of the first limb of the totality principle.
The appellant did not have the benefit of youth, good antecedents or remorse. The only mitigating factor was his pleas of guilty, which came about one month before the trial.
There is no established range for fraud offences because of the diverse circumstances in which such offences are committed and the diversity in the personal circumstances of offenders.[51]
[51] Pollock v The State of Western Australia [2011] WASCA 133; Wittensleger.
It is important to recognise the limits of the utility of comparable cases in determining whether, in a particular case, there has been an infringement of the totality principle.[52]
[52] See, for example, Pennetta v The State of Western Australia [2013] WASCA 234 [19]; Chadd v The State of Western Australia [2013] WASCA 99 [45]; GUE v The State of Western Australia [2022] WASCA 121 [58].
Bearing in mind the distinctive combination of serious features in the appellant's offending as outlined in [73] above, consideration of comparable cases provides no support for a conclusion of implied error in the present case.
In Wittensleger, Hall J, with whom McLure P and Mazza JA agreed, discussed some fraud cases in which sentences in the range of 6 to 8 years had been imposed, namely The State of Western Australia v Chapman,[53] Nikaghanri v The State of Western Australia[54] and Barrett v The State of Western Australia.[55] In Wittensleger itself, an appeal against a total effective sentence of 8 years, imposed after trial, was dismissed.
[53] The State of Western Australia v Chapman [2012] WASCA 203.
[54] Nikaghanri v The State of Western Australia [2009] WASCA 192.
[55] Barrett v The State of Western Australia [2007] WASCA 21.
Those cases present obstacles for the appellant's submissions in the present case.
While the sentence in Chapman was imposed after trial, and the offending occurred over a longer period than the present, in that case there was a single victim, the Commonwealth of Australia. As already emphasised, in the present case, the appellant's offending had devastating consequences for the victims, who were 10 ordinary, unsophisticated investors.
Given that the offending in Nikaghanri involved an amount of less than $150,000, fewer victims and a shorter duration than the offending in the present case, the sentence of 8 years in the present case sits comfortably with the total effective sentence of 6 years' imprisonment imposed in Nikaghanri.
The same is true of the total effective sentence of 6 years 6 months imposed in Barrett, in which there had been a fast‑track plea of guilty to offences involving 28 victims and a total amount just under $280,000.
Although Wittensleger involved the obtaining of more than $6.5 million, the conduct in that case occurred over a 14‑month period and involved only one victim, a finance company. Again, nothing in the sentence imposed in that case tends to indicate error in the sentence imposed in the present case.
The other two decisions on which the appellant relies, namely NI v The State of Western Australia and Skelly v The State of Western Australia, do not assist the appellant to establish a breach of the totality principle in the present case. NI concerned only one count of attempted fraud and one count of criminal damage by fire. Moreover, neither of the grounds of appeal in that case alleged a breach of the totality principle. Similarly, Skelly concerned a single count of fraud and, so, does not assist in evaluating whether the total effective sentence in this case infringes the totality principle.
Having regard to the serious features of the appellant's offending as summarised in [73] above, the need for personal deterrence as explained in [75] above, the limited mitigating factors identified in [77], and sentencing standards for fraud offences, the appellant's total effective sentence cannot, even arguably, be said to infringe the first limb of the totality principle. The appellant’s sentence sits comfortably within the bounds of an appropriate exercise of the sentencing discretion and bears a proper relationship to the overall criminality involved in all of the offences.
Conclusion
For the above reasons, we concluded that the appeal was without merit and made the orders in [4] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Research Associate to the Honourable Justice Beech
14 FEBRUARY 2023
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