Skelly v The State of Western Australia - [2020] WASCA 3

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SKELLY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 3
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   21 NOVEMBER 2019
DELIVERED          :   14 JANUARY 2020
FILE NO/S:   CACR 53 of 2019
BETWEEN:   CHRISTOPHER EDWARD ERIC SKELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 54 of 2019
BETWEEN: CHRISTOPHER EDWARD ERIC SKELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STONE DCJ
File Number            :   IND 972 of 2018

Catchwords:

Criminal law - Offences - Fraud - Causation element in fraud offence - Whether open to jury to be satisfied that appellant's deceit caused the payments constituting the benefit element of the offence

Criminal law and procedure - Sentencing - Principle that a person is not to be punished for an offence of which they have not been convicted - Where appellant convicted of fraud offence - Where sentencing judge found appellant forged a signature as an element of his deceit - Where appellant's forgery not part of the State's particulars of deceit - Whether judge erred in treating appellant's forgery of signature as an aggravating factor - Whether judge thereby punished appellant for an additional offence with which he had not been charged

Legislation:

Criminal Code (WA), s 409

Result:

Leave to appeal against conviction refused
Appeal against conviction dismissed
Sentence appeal - Leave to appeal granted

Appeal against sentence upheld
Appellant resentenced to 3 years' immediate imprisonment

Category: A

Representation:

CACR 53 of 2019

Counsel:

Appellant	:	S J Oliver
Respondent	:	E W L Greaves

Solicitors:

Appellant	:	Sarah Oliver
Respondent	:	Director of Public Prosecutions (Cth)

CACR 54 of 2019

Counsel:

Appellant	:	S J Oliver
Respondent	:	E W L Greaves

Solicitors:

Appellant	:	Sarah Oliver
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425
Cotter v The State of Western Australia [2011] WASCA 202
Couzens v The State of Western Australia [2019] WASCA 54
Dales v The Queen [1995] QCA 329; (1995) 80 A Crim R 50
Diefenbach v The Queen [1999] WASCA 4; (1999) 108 A Crim R 19
Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481
Evans v The State of Western Australia [2019] WASCA 73
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368
Milne v The State of Western Australia [2005] WASCA 38
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Newman and Turnbull [1997] 1 VR 146
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Ramsden v The State of Western Australia [2019] WASCA 179
RMM v The State of Western Australia [2018] WASCA 183
Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1
Skipworth v The State of Western Australia [2008] WASCA 64
SV v The State of Western Australia [2014] WASCA 123
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297
The State of Western Australia v Chapman [2012] WASCA 203
Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
Wellstead v The State of Western Australia [2019] WASCA 130
Wittensleger v The State of Western Australia [2014] WASCA 205

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against his conviction of, and sentence of 3 years 6 months' immediate imprisonment on, one count of fraud contrary to s 409(1)(c) of the Criminal Code (WA). That section provides that a person who, with intent to defraud, by deceit or any fraudulent means, gains a benefit for any person commits an offence.
The State case was that the appellant's deceit caused the victim to pay several hundred thousand dollars to a company closely associated with the appellant.
The appellant advances a single ground of appeal in his appeal against conviction, asserting that the verdict was unreasonable and unsupported by the evidence. His appeal focuses on the element of causation within s 409 of the Code. He contends that it was not open to the jury to find that his conduct constituting the deceit (or fraudulent means) caused the victim to make the payment because, subsequent to his conduct, another step was taken, not alleged or proved to have been taken by him, without which payment would not have been made. There is no merit in that contention.
At the hearing of the appeal, the court ordered that leave to appeal be refused, and the appeal dismissed, for reasons to be published later. We set out below our reasons for those orders. We will then turn to the appeal against sentence.
In our respectful view, the sentencing process miscarried because the judge sentenced the appellant on the basis that his fraud offence was aggravated by the appellant having forged a particular document, when such a forgery was no part of the State case against the appellant.
It is convenient to begin by outlining the factual background, in order to explain the causation question with which the conviction appeal was concerned.

Background

Many of the facts were not in dispute at trial. The jury's verdict reveals that they resolved the factual issues that were raised at trial adversely to the appellant. The appellant's ground and submissions do not challenge the jury's resolution of the central contested factual issues. Rather, the appellant contends that, on the facts advanced and proved by the State, and in particular on the evidence of the complainant Mr Raymond Petty, it was not open for the jury to be satisfied beyond reasonable doubt in relation to causation.
On 1 April 2014, the appellant became the sole director of a company known as C & G Group Industries Pty Ltd (C & G Group). On 30 July 2014, two other directors were appointed to C & G Group: Mr Chai Shepherd and Mr Clinton Omacini.
C & G Group operated a crushing and screening business.
Mr Petty operated a debt factoring company called FIFO Treasury Australia Pty Ltd (FIFO). Essentially, FIFO's business was to supply cash flow finance to companies whose debtors took some time to pay on invoices. FIFO would buy the invoice from its client, the creditor, advancing 80% of the invoice sum to its client. FIFO would subsequently collect the invoice from the client's debtor, following which it would pay the remaining 20% to its client, less FIFO's fee.[1]
[1] ts 58 - 59.
In late November 2014, there were discussions between Mr Petty, Mr Shepherd and the appellant about FIFO providing debtor financing to C & G Group.[2]
[2] ts 62 - 63, 64.
On 28 November 2014, the appellant and Mr Shepherd, as directors of C & G Group, signed the documents necessary for FIFO to provide debtor financing to C & G Group.[3]
[3] ts 68 - 69, 73, 75; exhibit 1.
On the same day, C & G Group submitted to FIFO an 'offer to sell' an invoice addressed to Brierty Ltd in the sum of just over $100,000. FIFO accepted the offer and provided finance on the basis of it.[4]
[4] ts 76.
On 11 December 2014, the appellant sent Mr Petty an email with four attachments.[5] His conduct in sending the email was the deceitful or fraudulent means upon which the State case relied.
[5] Exhibit 2.
The email attached an offer to sell and other documents required for the financing of a debt. The appellant's email stated that the email address for Joel Alman was '[email protected]' (the outlook.com email address). The appellant's email also said that Mr Alman was expecting the paperwork from Mr Petty to sign and return.[6] The attachments to the appellant's email were as follows:
(1)An offer to sell by C & G Group to FIFO its invoice 'inv000007', dated 11 December 2014, addressed to Phoenix Mineral Services Pty Ltd (Phoenix) in the sum of $661,725.90. The offer was signed by the appellant.
(2)Tax invoice INV000007 (the Invoice), dated 11 December 2014, from C & G Group addressed to Mr Alman at Phoenix in the sum of $661,725.90.
(3)A letter dated 11 December 2014 from the appellant to Mr Alman at Phoenix, giving notice that C & G Group's rights in respect of the Invoice had been assigned to FIFO.
(4)A purchase order (the Purchase Order) on Phoenix letterhead, addressed to C & G Group for mobilisation work, hire of plant and other equipment in an amount of $661,175.90. The Purchase Order bore a signature at its foot.
[6] BAB 83.
Mr Petty's evidence was that he took these documents to mean that: (1) Phoenix owed C & G Group the sum of $661,725.90; and (2) C & G Group had rendered the services referred to in the Purchase Order and the Invoice.[7]
[7] ts 82 - 84.
Mr Alman gave evidence that Phoenix did not request or receive any of the work the subject of the Invoice and that the outlook.com email address was not a genuine email address of Phoenix.[8]
[8] ts 158, 163.
The State case was that, in sending the email and its attachments, the appellant engaged in deceit or used fraudulent means with intent to defraud, in that:[9]
(1)he knew that Phoenix did not owe the amount the subject of the Invoice, or any similar amount, to C & G Group;
(2)he knew that C & G Group had not provided the services the subject of the Invoice to Phoenix;
(3)he knew that the Purchase Order was not a genuine purchase order, while representing to Mr Petty that it was;
(4)he intended to convey, and did convey, to Mr Petty, on behalf of FIFO, that Phoenix owed the invoiced amount to C & G Group, C & G Group having provided the services the subject of the Invoice; and
(5)he intended Mr Petty to act on that belief by causing FIFO to pay money to C & G Group.
[9] ts 29, 35 - 39, 476 - 480.
At trial, the appellant gave evidence that, when he sent the email of 11 December 2014, he believed the monies the subject of the Invoice were due by Phoenix to C & G Group.[10] In essence, he said that Mr Shepherd had provided the Invoice and suggested he send it to FIFO to be financed.[11] Mr Shepherd, who was called by the State, gave evidence that he had no involvement with the Invoice and made no suggestion that it be sold to FIFO.[12]
[10] ts 354 - 355.
[11] ts 349 - 354.
[12] ts 214, 233, 238.
On appeal, it is not in doubt that, by their verdict, the jury accepted the State case as to the dishonesty elements of the offence, as outlined in [18]. Nor is it in doubt that the evidence supported such a finding.
The appellant's case on appeal is that subsequent events overtook the causal effect of the appellant's fraudulent conduct in sending the email on 11 December 2014.
On 12 December 2014, Mr Petty sent an email addressed to Mr Alman at the outlook.com email address that had been set out on the appellant's email of 11 December 2014.[13] The email advised Mr Alman that C & G Group had transferred to FIFO the amount payable to C & G Group in relation to the Invoice. Mr Petty's email attached a debtor finance facility form AUS535, requesting that Mr Alman sign and return it to Mr Petty. It also attached copies of the Invoice, Purchase Order and letter that had been attached to the appellant's email of 11 December 2014, referred to at [15](2), (3) and (4) above.
[13] ts 85 - 87; exhibit 3.
On 18 December 2014, Mr Petty received an email from the same email address, namely the outlook.com email address, attaching a signed copy of the FIFO debtor finance facility form AUS535 (the Form 535).[14]
[14] ts 87 - 89; exhibit 4.
As the appellant emphasises, the State case as opened did not allege that the appellant caused this email to be sent to Mr Petty.[15]
[15] ts 44.
Mr Petty's evidence was that he would not have accepted the offer to sell, and thus would not have caused moneys to be paid to C & G Group, if he had not received the signed Form 535.[16] The appellant's case on appeal asserts that this evidence means that causation was not established.
[16] ts 118.
However, it was also Mr Petty's evidence that he would not have issued a Form 535, and would not have paid on the Invoice, if he had not received a copy of the Purchase Order and an offer to sell from C & G Group,[17] which were attached to the appellant's email of 11 December 2014. As explained below, that evidence, acceptance of which was open to the jury, was sufficient to establish the element of causation.
[17] ts 122.
On 23 December 2014, Mr Petty, on behalf of FIFO, accepted the offer from C & G Group and purchased the Invoice. The following payments by FIFO to C & G Group were admitted:[18]
(1)$80,000 on 22 December 2014;
(2)$200,000 on 23 December 2014;
(3)$50,000 on 24 December 2014; and
(4)$199,380.72 on 12 January 2015.
[18] Exhibit 17.
On the State case, those payments (the Payments) constituted the benefit element of the offence committed by the appellant.
Thus, the causation element of the offence alleged against the appellant directed attention to whether the appellant's deceitful or fraudulent conduct in sending the email of 11 December 2014 caused FIFO to make the Payments.

Conviction appeal: the appellant's ground and submissions

The appellant's single ground of appeal asserts that the verdict should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. The appellant's written and oral submissions make clear that this ground is directed only to the element of causation.[19] The appellant contends that it was not open to the jury to conclude that his email of 11 December 2014 caused FIFO to make the Payments.
[19] Appellant's submissions [19] - [27]; appeal ts 2, 4 - 5.
The particulars of the ground of appeal, and the appellant's written submissions in support of it, were framed on the erroneous basis that proving causation involves or requires the identification of the cause, in other words a single cause, of the relevant consequence. In essence, the appellant's written submissions contended that the appellant's email of 11 December 2014 did not cause FIFO to make the Payments because:
(1)the State did not allege that the appellant sent, or caused to be sent, the email of 18 December 2014 attaching the Form 535;
(2)Mr Petty's evidence was that, but for the receipt of the Form 535, he would not have caused FIFO to make the Payments;
(3)thus, the sending of the email of 18 December 2014 was the cause of the Payments;
(4)consequently, the State had failed to prove, as it was required to do, that the appellant's email of 11 December 2014 was the substantial or significant cause of the Payments.[20]
[20] Appellant's submissions [19], [20], [25] ‑ [27].
In oral argument, counsel for the appellant accepted that the State was not required to prove that the appellant's email was the substantial or significant cause of the Payments; rather, what was required was that the email was a substantial or significant cause.[21] As explained below, counsel was right to do so. The appellant's counsel submitted that the sending, by the appellant, of the email of 11 December 2014 was, in substance, merely the first stage of a process. Receipt by Mr Petty of the Form 535 was the essential final step, without which he would not have procured FIFO to make the Payments.[22] Thus, the appellant submitted, the only significant or substantial cause of the Payments was the sending of the Form 535, for which the appellant was not responsible.[23]
[21] Appeal ts 6, 7.
[22] Appeal ts 8 - 9.
[23] Appeal ts 11, 15 - 16.

Legal framework: causation principles

Section 409(1) of the Code provides, relevantly:
Any person who, with intent to defraud, by deceit or any fraudulent means -
(a)obtains property from any person; or
(b)induces any person to deliver property to another person; or
(c)gains a benefit, pecuniary or otherwise, for any person; or
(d)causes a detriment, pecuniary or otherwise, to any person; or
(e)induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f)induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime …
The word 'by' in s 409(1) of the Code, as in the very different context of s 82(1) of the now repealed Trade Practices Act 1974 (Cth), 'expresses the notion of causation without defining or elucidating it'.[24] While the causal element of s 409(1) does not appear to have been a central issue in any decision of this court, its presence has been recognised. In Hunter v The State of Western Australia,[25] McLure JA said that, under s 409(1), the deceit or fraudulent means must cause one or more of the consequences specified in pars (a) ‑ (f) of s 409(1).[26] That involved satisfaction of a 'but for' test.[27] Buss JA observed that the deceit or fraudulent means must have brought about a circumstance enumerated in pars (a) ‑ (f); in other words, a circumstance in pars (a) ‑ (f) must have been a result of the deceit or fraudulent means.[28]
[24] Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 525.
[25] Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191.
[26] Hunter [36].
[27] Hunter [42].
[28] Hunter [101]. See also Milne v The State of Western Australia [2005] WASCA 38 [27], where Roberts‑Smith JA said that the deceit or fraudulent means must have been an operative cause of the giving of the benefit.
The following causation principles are well established in relation to s 270 of the Code:
(1)Both legal and factual causation must be established.[29]
(2)Factual causation requires that the conduct of the accused in fact caused the death.[30] At least ordinarily, that will be established if the accused's conduct is shown to be a necessary condition of the death; in other words, the 'but for' test is satisfied.[31] In determining factual causation, the jury apply common sense to the facts as they find them.[32] In order to be a factual cause of the death, the accused's act need not be the sole, direct or immediate cause of the death.[33]
(3)Legal causation is concerned with whether the factual connection between the accused's conduct and the death is sufficient to justify the attribution of criminal responsibility for the death.[34] An accused's act will be a legal cause if it substantially or significantly contributed to the death.[35] It is for the jury to decide whether the contribution of the relevant conduct of the accused was substantial or significant.[36]
[29] Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 [22] ‑ [23], [39], [75] - [77]; TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 [125]; Couzens v The State of Western Australia [2019] WASCA 54 [43].
[30] TB [124].
[31] Krakouer [22], [75].
[32] TB [124]; Couzens [42].
[33] Krakouer [76]; TB [124]; Couzens [42].
[34] Krakouer [23], [77]; TB [126]; Couzens [44].
[35] Krakouer [30] ‑ [31], [39], [77]; TB [126]; Couzens [44].
[36] Krakouer [39]; TB [126]; Couzens [44].
Similar principles apply to causation in s 272 of the Code.[37]
[37] TB [162].

Disposition

In our view, on a proper construction of s 409(1) of the Code, the principles of causation applicable to s 270 and s 272 apply in like manner to s 409(1). That is, the word 'by' in s 409(1) imports the principles of factual and legal causation set out at [35] above. To establish factual causation in the context of s 409(1), the accused's deceit or fraudulent means must in fact cause the occurrence of a circumstance enumerated in pars (a) - (f) that is alleged in the indictment. Ordinarily at least, that requires satisfaction of the 'but for' test. To establish legal causation, the accused's deceit or fraudulent means must substantially or significantly contribute to the occurrence of that circumstance.

Contrary to the appellant's written submissions and particulars of the ground, the question for the jury was not whether the deceit was the substantial or significant cause of the Payments. The judge directed the jury that they must be satisfied that the appellant's deceit or fraudulent means was a substantial or significant cause of the Payments.[38] That direction is consistent with the proper construction of s 409(1), as we have outlined it. Its correctness was not challenged on appeal.[39]
[38] ts 475.
[39] Appeal ts 2, 6.
Thus it was not necessary that the appellant's deceit be the sole or main cause. On appeal, the question is whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant's email of 11 December 2014 caused FIFO to make the Payments. As already noted, the evidence of Mr Petty was that he would not have sent the Form 535, and would not have caused the Payments to be made, if he had not received the appellant's email of 11 December 2014. In our view, as explained in more detail below, that evidence was comfortably sufficient to prove that the appellant's deceit or fraudulent means in sending the email caused the making of the Payments.
The fact that receipt by Mr Petty of the signed Form 535 was also a necessary condition for the making of the Payments does not detract from this conclusion. More than one event may significantly or substantially contribute to a consequence; indeed, that will often be so. Further, the fact that the receipt of the signed Form 535 was subsequent to the appellant's email of 11 December 2014 does not, in itself, mean that the signed Form 535 overwhelmed any causal contribution of the earlier email.
Consideration of the contents of the appellant's email of 11 December 2014 and its attachments demonstrates its significant causal contribution to the making of the Payments. Among the attachments to the email were the offer to sell and the letter from C & G Group to Phoenix, signed by the appellant, giving notice to Phoenix that C & G Group's rights in respect of the Invoice had been assigned to FIFO. As explained below, as a matter of common sense, it was well open to the jury to infer that receipt by Mr Petty of each of these documents was necessary before he would procure FIFO to make the Payments.
At the risk of stating the obvious, the factoring of debts involves three parties: the original creditor, the original debtor and the assignee of the debt. Receipt by Mr Petty of the signed Form 535 gave Mr Petty the comfort that the debtor acknowledged that it must pay the debt to FIFO. However, standing alone, receipt of such a document is an insufficient basis for payment by the debt financing party because such a document does not affect the rights of the original creditor as against the debtor or as against the assignee. It is the other attachments to the appellant's email of 11 December 2014 that affected C & G Group's rights as against FIFO and as against Phoenix. The offer to sell enabled FIFO, upon acceptance of the offer, to become entitled, as against the creditor C & G Group, to the debt (apparently) owed by Phoenix. Further, the purpose and effect of the letter from C & G Group to Phoenix, giving notice of assignment, was to make the assignment of the debt legally effectual.[40] Thus, the effect of all of these documents, taken together, was to ensure a legally effective assignment by C & G Group to FIFO of the debt (apparently) owed by Phoenix. That supports an inference that receipt of all those documents was significant to FIFO's decision whether to make the Payments.
[40] See s 20 of the Property Law Act 1969 (WA).
As already noted, Mr Petty's evidence was that he would not have sent the Form 535 to the outlook.com email address had he not received the appellant's email of 11 December 2014. That being so, the receipt of the signed Form 535 was itself caused by the appellant's email of 11 December 2014.
For these reasons, in our opinion, it was well open to the jury to find that the appellant's email of 11 December 2014 was a substantial and significant cause of the making of the Payments. Indeed, in our view, it is difficult to see room for any other conclusion.
For these reasons, the sole ground of appeal was without merit.

Conclusion on conviction appeal

For the above reasons, we ordered that leave to appeal on ground 1 be refused and the appeal be dismissed.
That brings us to the sentence appeal.

Sentence appeal: introduction

Following his conviction, the appellant was sentenced to a term of 3 years 6 months' immediate imprisonment. In sentencing the appellant, the judge found that the appellant signed the Form 535 in Mr Alman's name and sent it to Mr Petty, characterising that as an aggravating factor.[41] The judge also found that the appellant forged the Purchase Order and operated the outlook.com email address.[42] Both the appellant's grounds of appeal against sentence challenge those findings. Ground 1 asserts that the findings were not open on the evidence. Ground 2 asserts that they gave rise to a miscarriage of justice in that, in making the findings, the sentencing judge acted unfairly.
[41] ts 522.
[42] ts 522.
For the reasons that follow, ground 2 has been established. We would resentence the appellant to 3 years' immediate imprisonment.
Given the appellant's contention of unfairness, it is necessary to outline aspects of the exchanges in the course of the plea in mitigation.

The exchanges with counsel in the course of the plea in mitigation

At an early part of defence counsel's plea in mitigation, the sentencing judge indicated that he was minded to find that the appellant forged the signature on the Form 535.[43] Defence counsel emphasised that:
(1)It was not the State's case that the appellant forged any document.[44]
(2)The appellant denied forging any document.[45]
(3)In those circumstances, it would be wrong for the judge to sentence on the basis that the appellant had forged the Form 535.[46]
[43] ts 503 - 505.
[44] ts 503, 504.
[45] ts 503.
[46] ts 504.
In the course of exchanges with counsel, the judge repeatedly posed the question: 'Who else would have forged the document?' The appellant's counsel submitted that Mr Shepherd may have been the person who did so.[47]
[47] ts 503, 505.

Sentencing remarks

The judge outlined the facts of the appellant's offending. It is not necessary to detail his Honour's account of the facts, which broadly accords with the outline at [7] ‑ [28] above. In addition, when FIFO sent a letter to Mr Alman on 9 February 2015 to advise that the tax invoice was overdue, Mr Alman advised that the relevant documents were not genuine and that Phoenix had no knowledge of the debt.[48] Some payments were subsequently made by the appellant on behalf of C & G Group. Approximately $300,000 remained unrecovered by FIFO.[49]
[48] ts 521.
[49] ts 522.
The judge identified the following aggravating factors:
(1)There was a significant amount of money involved, in excess of $500,000, the benefit of which went to the appellant's company.
(2)The appellant's actions were deliberate.
(3)The deceit and fraudulent means included the forging of Mr Alman's signature on two documents - the Purchase Order and the Form 535 - as well as the creation of a false email address.[50] The judge said he was satisfied beyond reasonable doubt that the appellant was the person who did those things.[51]
[50] ts 522.
[51] ts 522.
The finding in [54](3) above is the subject of both grounds of the appeal against sentence.
The judge outlined the appellant's personal circumstances,[52] to the following effect.
[52] ts 523.
The appellant was 34 years old at the time of sentencing and 30 years old when the offence was committed. He had been married, but was separated, with a child aged 7 who lived with the appellant's former wife in Queensland.
The appellant came to Australia in 2012, having been born in the United Kingdom. He had worked in crushing and screening on various mine sites, having qualified in the United Kingdom as a heavy diesel fitter. The judge noted evidence during the trial that the appellant had been suffering from anxiety and depression over the preceding 12 months. The judge observed that that no doubt had much to do with what had occurred while the appellant was in England (including, it appears, the passing of his mother), what had happened in relation to his marriage and his concern about his trial. The appellant had not been previously convicted of any offence.
The judge identified the following mitigating factors.[53] First, to some extent the appellant cooperated in the conduct of the trial. Secondly, some of the property had been recovered, so that the actual loss on the part of victim was about $300,000. Thirdly, a term of imprisonment would have particular effect on the appellant in circumstances where his child is in Queensland and he has no other family here, making it more difficult for him to serve a term of imprisonment. The judge observed that this was not unusual or exceptional, but nevertheless was something to which he attributed some weight. Fourthly, the judge described as important the mitigating factor of the appellant's prior good character and his employment history.
[53] ts 523 - 524.
The judge observed that the appellant was not entitled to any mitigation for remorse, particularly bearing in mind the conduct of his trial, in which he attempted to attribute blame to Mr Alman and to Mr Shepherd.[54]
[54] ts 524.
The judge observed that white‑collar crime of this kind is difficult to detect, reinforcing the need for general deterrence.[55]
[55] ts 525.
The judge concluded that the seriousness of the offence was such that only a term of immediate imprisonment was appropriate.[56] There is no challenge to that conclusion.
[56] ts 525.
The judge imposed a term of immediate imprisonment of 3 years 6 months, with eligibility for parole.[57]
[57] ts 525.

Grounds of appeal against sentence

Ground 1 asserts that the sentencing judge erred in fact or in law by finding that the appellant forged Mr Alman's signatures on the Form 535 and the Purchase Order when those findings were not open on the evidence. Ground 2 asserts a miscarriage of justice in the making of those findings. The ground is particularised as follows:
a.The learned sentencing judge acted unfairly by finding as an aggravating factor that Mr Skelly had:
i.forged the AUS535 form; and
ii.created and operated the Outlook email address; and
iii.forged the purchase order in exhibit 2;
in circumstances where Mr Skelly's evidence as to the following matters was not challenged in cross examination at the trial:
i.denied signing the AUS535;
ii.denied sending the AUS535;
iii.denied asking anyone to send emails from the Outlook account;
iv.denied having any involvement in the operation of the Outlook account.
b.The learned sentencing judge acted unfairly by finding as an aggravating feature that Mr Skelly signed the AUS535 and the purchase order in exhibit 2 and operated the Outlook account when those allegations were not part of the prosecution's case.
Because, in our view, ground 2 must be upheld, it is unnecessary and inappropriate to deal with ground 1. As will be seen, we would uphold ground 2 on the basis that the judge acted unfairly by finding as an aggravating factor that the appellant forged the Form 535. Given this, it is unnecessary to consider whether his Honour's findings that the appellant forged the Purchase Order and operated the outlook.com email address also (either individually or in combination) occasioned a miscarriage of justice.
It is convenient to begin by outlining the general principles in relation to finding facts for the purpose of sentencing.

Finding facts for the purposes of sentencing after trial: general principles

This court recently summarised the relevant principles in RMM v The State of Western Australia.[58] What follows is substantially drawn from that outline.
[58] RMM v The State of Western Australia [2018] WASCA 183 [197] ‑ [205]. The summary was adopted in Wellstead v The State of Western Australia [2019] WASCA 130 [69] - [77] and Ramsden v The State of Western Australia [2019] WASCA 179 [19] - [28].
The respective roles of the trial judge and a jury were explained in the following terms by the plurality in Cheung v The Queen:[59]
The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability.
[59] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].
The plurality adopted the following outline of established principles:[60]
1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...
2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …
[60] Cheung [14].
Generally speaking,[61] a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted.[62]
[61] An exception is provided by Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.
[62] Chiro [52], [70], [83] - [85]; Cheung [14] - [17], [98] - [99], [162] - [163]; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24].
The sentencing discretion is to be exercised consistently with the general principle, identified in R v De Simoni,[63] that no one should be punished for an offence of which he or she has not been convicted.[64] We will say more about this principle later in these reasons.
[63] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389; Chiro [44], [72]; SV v The State of Western Australia [2014] WASCA 123 [137].
[64] RMM [205].
As will be seen, in our view, in this case an additional principle was in play. In our respectful opinion, the sentencing discretion was required to be, but was not, exercised consistently with the general principles that: (i) the State must not depart from its particulars in a manner that is unfair to the appellant; and (ii) an offender is not to be punished for any additional offence(s) of which they were not convicted.

Disposition

The State gave particulars of the deceit or fraudulent means it alleged against the appellant. The particulars were in the following terms:
1.On 11 December 2014, the accused sent an email (brief page 127) to Mr Raymond Petty.
2.The email attached a file with the name: Untitled_20141211_111037.pdf. The file comprised 4 pages (reproduced at brief pages 128 to 131 both inclusive):
a.A letter dated 11 December 2014 from the accused to Mr Joel Alman of Phoenix Mineral Services Pty Ltd.
b.An offer to sell the rights associated with an invoice. The submission of the offer expressly represented to Mr Petty that a sum of $661,725.90 was payable to C & G Group Industries Pty Ltd from Phoenix Mineral Services Pty Ltd, which sum was due by 31 January 2015.
c.An invoice dated 11 December 2014 from C & G Group Industries Pty Ltd to Phoenix Mineral Services Pty Ltd in the amount of $661,725.90. The submission of the invoice implicitly represented to Mr Petty that:
i.The services described in the invoice had been provided by C & G Group Industries Pty Ltd to Phoenix Mineral Services Pty Ltd; and
ii.The services had been provided pursuant to a purchase order from Phoenix Mineral Services Pty Ltd with reference number 9449.
d.A purchase order from Phoenix Mineral Services Pty Ltd, PO Number 9449, dated 1 November 2014. The submission of the purchase order implicitly represented to Mr Petty that the purchase order was an authentic purchase order in fact issued by Phoenix Mineral Services Pty Ltd.
3.Each of the express and implicit representations was false. The sending of the email was deceitful.
What is significant for present purposes is that the particulars given by the State relate entirely to the appellant's email of 11 December 2014 and its attachments, and make no reference to the signed Form 535 that was subsequently received by Mr Petty. Further, as already noted, in opening, the State did not allege that the appellant caused the email of 18 December 2014 to be sent to Mr Petty. Nor did the State allege that the appellant had forged Mr Alman's signature on the Form 535.
The judge's direction to the jury as to the State case concerning what constituted the appellant's deceit or fraudulent means reflected, and was consistent with, the particulars given by the State.[65] His Honour told the jury that they must be unanimous as to at least one of the five particulars of deceit relied on by the State.[66]
[65] ts 476 - 477.
[66] ts 477 - 480.
Thus, nothing in the judge's direction called for the jury to consider whether the appellant had forged the signature on the Form 535.
Consistently with the scope of the State case, the prosecutor did not challenge, by cross‑examination, the appellant's evidence that he did not forge the signature on the Form 535.[67]
[67] ts 359.
In our view, in all these circumstances, the State could not have invited the judge to sentence the appellant on the basis that:
(1)part of the deceit or fraudulent means employed by the appellant was that he forged the signature on the Form 535; and
(2)that fact was an aggravating factor.
That is because, in the circumstances of this case, the State was bound by its particulars. The State could have chosen to allege that the forgery of the signature on the Form 535 was part of the appellant's deceit or fraudulent means. It did not do so in its particulars or in its opening. That being so, the State could not have requested the trial judge to direct the jury in a manner inconsistent with its particulars and in a manner unfair to the appellant.[68] Further, in our view, in the evaluation of the seriousness of the appellant's offence for the purpose of sentencing, it would not have been open to the State to invite the judge to go beyond the manner in which the State had chosen to present its case.
[68] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 480, 489 ‑ 490; Cotter v The State of Western Australia [2011] WASCA 202 [30] ‑ [32]; Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481, 484.

In our view, in circumstances where it would not have been open to the State to go beyond the case it had particularised and to allege deceit through the forgery of the Form 535, it was also not open to the sentencing judge to do so. Further, in finding that the appellant forged the Form 535, the judge, in effect, rejected the appellant's evidence on the point, in circumstances where it had not been challenged in cross‑examination and where the appellant was not otherwise on notice that his evidence, that he did not forge the signature on the Form 535, was in dispute. In our respectful view, that is a further element of unfairness in the approach adopted by the sentencing judge. Moreover, as explained below, in finding that the appellant's forgery of the Form 535 aggravated the seriousness of his offence of fraud, the sentencing judge, in effect, punished the appellant for an additional offence of which he had not been charged or convicted.
It is a fundamental principle that 'no one should be punished for an offence of which he has not been convicted'.[69] The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence.[70]
[69] R v De Simoni (389); Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 5; Olbrich [18]; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26]; Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368 [9], [94].
[70] R v De Simoni (389); Savvas (5); Langdon [94].
This principle applies in several different situations. Among other things, it means that, in sentencing an offender for an offence, a sentencing judge must not take into account a fact or circumstance if it would, in effect:[71]
(a)treat the offender as guilty of a more serious offence than the offence of which they have been convicted; or
(b)constitute a circumstance of aggravation, so as to render the offender liable to a higher penalty.
This appeal is not concerned with either of these situations.
[71] Hladin [26]; Langdon [9] ‑ [10]; Dales v The Queen [1995] QCA 329; (1995) 80 A Crim R 50, 80, 88. As to category (a), see also RMM [208] - [214]; Evans v The State of Western Australia [2019] WASCA 73 [109].
Another emanation of this fundamental principle is that in sentencing an offender for one offence, the judge is not entitled to punish the offender for an additional offence to the one with which the offender was charged.[72]
[72] R v de Simoni (395 - 396); Diefenbach v The Queen [1999] WASCA 4; (1999) 108 A Crim R 19 [38], [41]; Hladin [26]; Dales (80, 88).
It is not always easy to determine where the line is to be drawn between permissible consideration of the circumstances of the offence and punishment for an offence not charged. Questions of fact and degree are involved.[73] What is required is a careful reading of the sentencing remarks to see to what extent, and for what purpose, uncharged acts might have been taken into account.[74]
[73] Langdon [95]; R v Newman and Turnbull [1997] 1 VR 146, 152.
[74] Hladin [29].
In our respectful opinion, in finding that the appellant had forged the signature on the Form 535 and that this was an aggravating factor, the judge infringed the principle outlined in [83] above. Forging a signature on the Form 535 and sending it to Mr Petty would itself have constituted a separate criminal offence. As already explained, such a forgery was not part of the State's particulars of the fraud offence charged. In those circumstances, in finding the facts relevant to the seriousness of the appellant's offence of fraud and in finding that the forgery was an aggravating factor, the sentencing judge, in effect, punished the appellant for an additional offence to the one with which he had been charged.
As outlined at [51] above, counsel for the appellant submitted to the sentencing judge that fairness precluded a finding that the appellant forged the Form 535. In response, the judge challenged the appellant's counsel to identify who else was responsible for the forgery. In our respectful view, whether counsel's attempt to identify an offender, in response to that challenge, was persuasive is not to the point. In our opinion, the question of who was responsible for forging the signature did not arise, because the State had confined its particulars of fraud to the appellant's email of 11 December 2014. Not having been charged with an offence of forging the signature on the Form 535, it was not for the appellant to identify who else might have committed such an offence.
For these reasons, in our view, ground 2 has been made out. Consequently, this court must resentence the appellant.

Resentencing

In resentencing the appellant, we have not adopted the judge's findings that the appellant created and operated the outlook.com email address and that he forged the Purchase Order.
The maximum sentence for the offence is 7 years' imprisonment.[75]
[75] Criminal Code, s 409.
The appellant's offence exhibited some serious elements. A significant amount of money was involved, in excess of $500,000, more than $300,000 of which has not been repaid to the victim. His fraud was by no means a spur of the moment offence. It involved attaching several false documents to his email of 11 December 2014. In the period from then until the receipt of payments a month later, the appellant maintained his deceit in his interaction with the victim. Further, by his fraud, the appellant gained a benefit for the company of which he was, in substance, the controller and owner.
However, the appellant's offence is not in, or close to, the most serious category of offences of this kind. Offences under s 409 of the Code may exhibit a number of more serious features. Many of those who commit offences of fraud commit a series of offences, whereas this was a single offence. Some take advantage of personal relationships of trust and confidence. Some offences are committed for reasons of greed, whereas, on the judge's findings, the appellant was motivated to obtain the money in order to keep his company afloat. In this case, some of the property was repaid prior to the trial.
The appellant has no previous convictions. It is not uncommon in fraud offences for an offender to have a record of similar offending, thereby engaging a heightened need for personal deterrence.
The appellant has not displayed any remorse for his offence, as is apparent from the manner in which he conducted the defence at trial.
The need for general deterrence in sentencing for offences of fraud is well‑established. There is no established range of sentences for fraud because the circumstances and seriousness of the offences, and the circumstances of the offenders, can vary so widely. We have had regard to the range of sentences imposed for offences of fraud, including in the cases discussed in Hladin v The State of Western Australia; Skipworth v The State of Western Australia;[76] The State of Western Australia v Chapman[77] and Wittensleger v The State of Western Australia.[78]
[76] Skipworth v The State of Western Australia [2008] WASCA 64.
[77] The State of Western Australia v Chapman [2012] WASCA 203.
[78] Wittensleger v The State of Western Australia [2014] WASCA 205.
In our view, there can be no doubt that the seriousness of the appellant's offending means that a term of immediate imprisonment is required.
We would sentence the appellant to a term of immediate imprisonment of 3 years, backdated to commence on 25 March 2019. We would order that the appellant be eligible for parole.

Conclusion

For these reasons we would make the following orders in the sentence appeal:
(1)Leave to appeal on ground 2 is granted.
(2)Leave to appeal on ground 1 is refused.
(3)The appeal is upheld.
(4)The sentence imposed by Stone DCJ on 17 April 2019 is set aside and, in substitution, the appellant is sentenced as follows:
(i)the appellant is sentenced to a term of 3 years' immediate imprisonment;
(ii)the sentence is backdated to commence on 25 March 2019; and
(iii)the appellant is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech
14 JANUARY 2020