Stephens v The Queen - [2004] WASCA 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STEPHENS -v- THE QUEEN [2004] WASCA 124

CORAM: MALCOLM CJ
MURRAY J
WHEELER J

HEARD: 3 MAY 2004

DELIVERED : 3 MAY 2004

PUBLISHED : 11 JUNE 2004

FILE NO/S: CCA 190 of 2003

BETWEEN: TERRY NORMAN STEPHENS
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :VIOL DCJ
File Number            :  IND 1648 of 2003

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal against sentence dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr D Dempster

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: On 3 May 2004 this Court dismissed the applicant's application for leave to appeal against sentence. These are the Court's reasons for the orders which were then made.
On 9 October 2003 the applicant pleaded guilty in the District Court of Perth to an indictment containing three counts. Each was a count of attempted fraud committed on 5 or 6 February 2001. Counts 1 and 3 alleged attempts to obtain credit by fraud in the sum of $8,000, from two different banks. Count 2 alleged an attempt to obtain a benefit in the sum of approximately $71,000 from a finance corporation. The note on the complaint in the Court of Petty Sessions made when the applicant pleaded guilty there, was to the effect that in relation to count 3 the applicant disputed the amount particularised and was prepared to admit only an attempt to obtain a sum of $2,000 credit. Nevertheless, in the District Court, a plea of guilty without reservation was entered by him in relation to that count.
The facts which were admitted on behalf of the applicant by his counsel were briefly as follows. He had, with the use of a computer and scanner, altered a birth certificate and Tasmanian motor driver's licence, several taxation group certificates and a council rate certificate. The effect of all this was to misrepresent his date of birth and his ownership of property in New South Wales and to create a new entry with the credit reporting agency.
In relation to count 1, he contacted the National Bank in January 2001 by telephone and made an application for a credit card. It appears that he did not request a limit of $8,000 but that was the sum that happened to be set by the Bank. On 5 February 2001 he attended the National Bank premises and supplied the Bank with copies of altered documents, but as a result of enquiries made by the Bank the application was declined.
In relation to count 3, on 6 February 2001 he attended the Commonwealth Bank premises and made an application for a Commonwealth Bank credit card. Again, the amount of $8,000 appears to have been the limit set by the Bank. Again, he supplied altered documents. On that occasion the application was approved and he was due to collect the card the following day.
In relation to count 2, on 5 February 2001 he attended at the Henley Saab business and entered into a contract to buy a Saab convertible sports car with a value of approximately $71,000. He made an application for finance for that vehicle and on the following day produced various altered documents to Henley Saab, as a result of which the finance application was approved. An arrangement was made for him to collect the vehicle on the following day. However, on the following day detectives executed a search warrant on a room at a motel and, as a result of that, located the altered documents and interviewed the applicant, who participated in a video record of interview admitting the offences.
In relation to counts 2 and 3, it was said by his counsel that he had in fact thought better of the applications which he had made and had made a decision not to proceed with those transactions. That appears to have been consistent with what he said to the police when interviewed. Before us, at the hearing of the appeal, he further said that in relation to the Saab he had contacted the salesman by telephone on 6 February saying that he did not wish to proceed. That does not seem to have been put to his Honour, the learned sentencing Judge, but adds little to what was put.
Following the interview by police he was, of course, arrested and charged with these three offences. He had a Court appearance in March 2001, at which time it appears that he had entered a plea of not guilty. The matter was put through to an election day. He was granted bail but was not in fact released to bail because of some difficulty with the surety documentation. At Canning Vale Remand Centre he suffered a heart attack during the induction process and was taken to hospital. By then his bail papers were in order and he was released from custody. He and his family then left Western Australia and were returned to this State as a result of an extradition warrant in August 2003.
His counsel informed the learned sentencing Judge that the traumatic experience of being imprisoned and suffering a heart attack while being imprisoned was such that he had, in panic, decided to leave the State. He had apparently contacted the office of the DPP in Perth to arrange his surrender to Western Australian police in relation to the warrant. The precise details of the discussions which took place are not before us, but it seems in any event to have been the case that the applicant did not return to Western Australia until after the issue of the extradition warrant. This was not, therefore, a case of voluntary return prompted solely by pangs of conscience.
Upon his return to Western Australia, he immediately pleaded guilty to the three counts. The learned sentencing Judge said, during the course of his sentencing remarks, that he would give "recognition and benefit" to the applicant for the plea of guilty and other mitigating factors. To the extent that there was credit for the plea of guilty, one would expect only a very limited amount of credit to have been given. Having regard to the earlier plea of not guilty and to the applicant's fleeing and remaining out of the jurisdiction for a considerable time, it is apparent that any remorse and desire to facilitate the course of justice which might have been evidenced by that plea came late indeed.
In mitigation, the applicant's counsel advised the Court that he had only one "major" prior conviction in this State. That was putting the best face possible on the facts. The applicant had a considerable number of prior convictions for offences involving dishonesty in Western Australia. The "major" prior conviction was in respect of some 25 counts of fraud for which he was sentenced in August 1996 in the District Court. He had also a record of offending of a relatively minor kind in other States, including convictions for dishonesty which post-dated the offences the subject of this application (in particular, a conviction of two counts of obtaining credit by fraud is recorded in the New South Wales criminal history dated May 2001).
The applicant's counsel advised the sentencing Judge, accurately, that his response to supervision on parole in this State, on the one occasion on which he had parole supervision, was good, and that he had complied with conditions which included substance abuse counselling and involvement with Gamblers Anonymous and psychological counselling. He had had a problematic childhood, adolescence and young adulthood, and had a number of psychological issues in relation to self-esteem. Those submissions were borne out by the pre‑sentence report, although it is to be noted that factual anomalies in portions of the history given by the applicant, which were commented on by the community corrections officer, cast some doubt upon the accuracy of the background information given by the applicant overall.
Both a psychological report and the pre‑sentence report commented in relatively strong terms on the efforts apparently made by the applicant to "minimise" his behaviour. The psychological report suggested that the risk of re-offending might well be high.
His Honour's sentencing remarks are brief, and we reproduce them in full:
"The position is that you have pleaded guilty to three counts of attempted fraud and it is correct that the offences – at least one of them, if not two of them – would have been completed without the intervention of the authorities, and there was an attempt to obtain a considerable amount of money and a vehicle.
The mode of operation was one which was reasonably sophisticated and one which clearly involved a knowledge of the system and a way in which the system could be used to gain benefits dishonestly. They are therefore serious and they must be looked at in the light of your record, which involves a long record for dishonesty and fraudulent conduct. There are some mitigating factors which have been mentioned by your counsel but there is a limited amount which can be said on your behalf, particularly in the light of what is contained in the pre-sentence report and psychological report.
There seems to be a rationalisation of your conduct by you in the sense that you don't appear to accept that there has been a long history of an attempt by you to obtain money and goods without working for them in effect, and it seems to be the case that you don't seem able to alter your criminal disposition. There is a need to protect the public from offences such as these and there is a need for deterrence in your case.
The only disposition which is open to me, in my view, is a gaol term to be served immediately. I will give recognition and benefit to you for the plea of guilty and any other mitigating factors. On count 1 – this would be the terms that you would have been sentenced to under the previous legislation: on count 1, 2 years' imprisonment; on count 2, 1 year imprisonment – that would be cumulative on count 1; and on count 3, 1 year's imprisonment and that would be concurrent with counts 1 and 2.
That would be a term of 3 years' imprisonment and under the legislation as it now stands, the transitional legislation, that is being required to be reduced to 2 years' imprisonment. I will make you eligible for parole and that will mean that you will be required to serve 1 year's imprisonment before you are eligible for release, and I am ordering that your imprisonment should commence from 25 August 2003."
In his grounds of appeal and his argument before us, the applicant made a number of points. Some are relatively small matters of fact, and his assertions appear to be factually erroneous. They include assertions that he pleaded guilty to only a particularised sum of $2,000 in respect of count 3, and that his counsel failed to advise the Court of his participation in substance abuse and Gamblers Anonymous programmes. There is also an assertion that the Court was not made aware that the applicant had been in contact with the DPP about his surrender, and that also is incorrect when one looks at the transcript.
The applicant also took issue with the assertion by his Honour that at least one and perhaps two of the offences "would have been completed without the intervention of the authorities". He continues to assert that he made a decision to desist before the offences could have been completed. However, it seems to us that the point which his Honour was making was that they were relatively sophisticated attempts in the sense that they could have been completed; that is, the alterations to the documents were not detected by the institutions to which applications were made in respect of counts 2 and 3.
More substantial points made by the applicant are that he received insufficient credit for his plea of guilty together with other mitigating factors, and that insufficient weight was given to his attempts to rehabilitate himself. In relation to rehabilitation, both the material which was before his Honour in the pre‑sentence report and the fresh material relating to the applicant's time in prison to date which was put before us, reveals that the applicant has complied with orders made about counselling and has attempted rehabilitation in the sense that he has attended courses which have been available to him and has generally done what is required of him in prison. Against those positive aspects however, must be placed the clear indications in the materials available to his Honour that the applicant persistently minimised the seriousness of his offending, and his record of offending up to and after the time at which these offences were committed. In relation to the plea of guilty, as we have indicated, any credit which the applicant received for it should, in our view, have been minimal having regard to the circumstances in which it came to be entered.
When one looks at the structure of the sentence overall, in relation to each of the counts, the applicant was liable to a maximum sentence of 3½ years' imprisonment (or, if one has regard to the Sentencing Legislation Amendment and Repeal Act2003 to a term of 2 years and 4 months in respect of each count). Although they were close together in time, and relied upon the alteration of the same group of identifying documents, the offences were distinct attempts made on distinct potential victims, and all sentences in respect of them could well have been ordered to have been served cumulatively, leaving aside considerations of totality. In those circumstances, it did not seem to us that a sentence of 2 years' imprisonment overall was in any way disproportionate to the offending and to the personal circumstances of the applicant. Finally, the applicant put before us some fresh material in relation to hardship to his family. It is said that his wife suffers a disability which makes it very difficult for her to cope while he is imprisoned. In that respect, he provided a copy of an ACROD eligibility form completed by a medical practitioner which, although it is clear that the complete document is not before us, we are prepared to accept relates to the applicant's wife. It certifies that she suffers from osteoarthritis of the knees and that walking 50 metres causes her condition to deteriorate. While that is no doubt a difficulty for her, it does not seem to us to be the sort of exceptional hardship which would call for some further reduction in the applicant's sentence on compassionate grounds. In any event, the risk of hardship to his wife on which he now seeks to rely did not deter the applicant from committing the offences for which he was sentenced.