Watson v The Queen (No 2)
[2020] ACTCA 30
•22 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Watson v The Queen (No 2) |
Citation: | [2020] ACTCA 30 |
Hearing Date: | 21 May 2020 |
DecisionDate: | 22 June 2020 |
Before: | Elkaim J, Robinson AJ and Crowe AJ |
Decision: | See [69] |
Catchwords: | CRIMINAL LAW – APPEAL – Conviction – Whether primary judge erred in law in refusing appellant to rely on proposed defences – whether proposed defences tenable in law and fact – whether the primary judge misdirected himself – whether the defendant was forced to enter guilty pleas and did not receive a fair trial CRIMINAL LAW – APPEAL – Sentence – Manifest excess – recommendation of full-time imprisonment – loss and reversal of onus – breach of trust as aggravating feature – good character |
Legislation Cited: | Building Act 2004 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33(1) Human Rights Act 2004 (ACT) |
Cases Cited: | Campbell v The Queen [1981] WAR 286 R v Alhassan [2010] ACTSC 84 Royall v The Queen (1991) 172 CLR 378 |
Parties: | Andrew Gregory Watson (Appellant) The Queen (Respondent) |
Representation: | Counsel J Masters with A Costin (Appellant) K Lee (Respondent) |
| Solicitors Marjason & Marjason Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | AC 5 of 2020 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Burns J Date of Decision: 28 January 2020 Case Title: R v Watson Citation: [2020] ACTSC 30 |
THE COURT:
On 26 September 2019, Andrew Gregory Watson (the appellant) pleaded guilty to four counts of using a false document contrary to s 347 of the Criminal Code 2002 (ACT) (the Criminal Code) and four counts of obtaining property by deception contrary to
s 326 of the Criminal Code. An Agreed Statement of Facts was then tendered for the purposes of sentence. Thereafter, the appellant was sentenced to periods of imprisonment by Burns J (the trial Judge) to which it will be necessary to return to in detail.
By an Amended Notice of Appeal, the appellant appeals against both his convictions for the offences and also against the sentences imposed upon him.
Procedural history
To place the pleas of guilty in their proper context, for the purposes of the conviction appeal, it is necessary to set out some of the procedural history.
Mr Watson entered pleas of not guilty in the Magistrates Court on 14 February 2018 and was committed for trial to the Supreme Court. On 20 August 2018, the Crown filed an indictment containing 8 counts. On 1 April 2019 a jury was empanelled, and preliminary issues were addressed in the absence of the jury. After discussion, on 2 April 2019, the jury was discharged and the trial was adjourned to allow the Crown to consider its position in respect of latent duplicity in the counts in the indictment. The Crown, subsequently, filed a new indictment containing 76 counts.
There were other interlocutory applications but those do not have a bearing on the outcome of this appeal.
A second trial commenced on 25 September 2019 and a jury was empanelled. In the course of his opening address, counsel appearing for Mr Watson told the jury that the central plank of the case to be put to the jury was the contention that the Crown had to prove that Mr Watson was not acting on behalf of ANDC Pty Ltd (or “the company”) when Mr Watson carried out the acts and omissions alleged to constitute the offences. In light of the fact that it was common ground that Mr Watson alone controlled this company as its sole Director and Secretary, this statement by counsel was of some significance to the trial in view of the Crown case.
It was the Crown case that ANDC Pty Ltd was a licenced builder and carried out residential building construction work in the ACT. Under the Building Act 2004 (ACT), builders in the ACT are not legally permitted to, relevantly, engage in residential construction works unless they are covered by Home Owners Warranty Insurance. Building work cannot be commenced unless the builder obtains a Commencement Notice from a building certifier. Such a notice cannot be issued without that builder holding Home Owners Warranty Insurance. ANDC Pty Ltd applied for cover in its own name and was refused cover. Thereafter, Mr Watson himself, in the name of
ANDC Pty Ltd, forwarded false Home Owners Warranty Insurance documentation on four occasions to a building certifier knowing they were false. This had the effect of allowing ANDC Pty Ltd to commence four residential projects and receive payments under those building contracts without there being insurance in place (to avoid confusion, we will refer to those who contracted with ANDC Pty Ltd as “the Owners”).
Unsurprisingly, the trial Judge took up the issue raised by counsel in his opening address. The trial Judge did so in the absence of the jury. There was robust debate between the bench, the Crown and counsel for Mr Watson. It is appropriate to set out the conclusion that the trial Judge reached. He said:
I am going to tell the jury that the assertion that the accused may have been acting as a servant or agent, or indeed as the nominee of the company, or even as the company itself, is [irrelevant]. I am going to tell the jury that the fact that the company was the holder or was the builder is also irrelevant to the question of his liability. I am going to say that it is also irrelevant whether the building work was undertaken or whether the company may have been entitled to payment for any of the building work.
I will further tell the jury that it is irrelevant that circumstances have not arisen under which the owners could have claimed under the HOWI [Home Owners Warranty Insurance]; that it is further irrelevant that the maximum cover under the HOWI did not cover the full cost or amount of the cost of the building. It is also irrelevant who performed the work under the contracts, and it is further irrelevant that he did not, that is, the accused, did not personally receive a benefit.
At this point counsel for Mr Watson asked for an adjournment for the balance of the day and the trial Judge sent the jury home. Prior to finally adjourning the proceedings for that afternoon, counsel for Mr Watson raised another matter arising out of the opening addresses. That matter concerned what the Crown contended was the “gain” for the purposes of s 347 of the Criminal Code. There was a further debate between the bench, the Crown and counsel for Mr Watson. What constituted the “gain” fluctuated in argument between a “Commencement Notice” or the money paid by the Owners to ANDC Pty Ltd in respect of the building work on the respective building agreements. By the end of that debate the Crown had unequivocally elected for the gain to be particularised as the money paid by the Owners to ANDC Pty Ltd and not the Commencement Notices.
As a consequence of the above matters, the trial Judge invited the parties to make further opening addresses the next day.
When the trial Judge resumed the next morning there was an immediate exchange as follows:
MR MASTERS: Yes, your Honour. Yesterday your Honour outlined what you propose to tell the jury.
HIS HONOUR: Yes.
MR MASTERS: As a result of what you were going to tell the jury, the accused cannot see how he can actually run a viable defence. Mr Watson is going to be entering a guilty plea, your Honour, on the basis that your Honour’s proposed directions to the jury are correct in law and the jury would be compelled to follow those directions. The Crown has amended the indictment to reflect eight counts and in doing so I’d like to put on record that the accused waives any right in the future to rely on duplicity, because that was a concern your Honour…
Thereafter, the accused pleaded guilty to eight counts in a further indictment (being four counts of using false document and four “rolled up” counts of obtain property by deception). The Crown tendered an Agreed Statement of Facts.
Convictions following pleas of guilty
A plea of guilty to an offence is an admission of all the elements of that offence. It has long been recognised that a court has power to set aside a conviction based on a plea of guilty when the accused did not appreciate the nature of the charge or did not intend to admit he was guilty of that charge. In Meissner v The Queen (1995) 184 CLR 132 at 157 (Meissner) Dawson J set out the jurisprudential underpinnings of this power as that of a miscarriage of justice and observed that it could occur in a number of ways:
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
(Citations omitted)
In this case it is clear enough that the appellant had changed his plea in consequence of a ruling that the trial Judge made foreshadowing his proposed directions of law to the jury.
The facts in R v Chiron [1980] 1 NSWLR 218 provide guidance for the appellant’s challenge to his convictions. The trial Judge in that case ruled that evidence of “similar facts” which the Crown proposed to lead in Chiron’s trial for rape was admissible. The gravity of this ruling in the context of the trial was expressed to be “sudden death” to the chances of acquittal. Thereafter, Chiron changed his plea to guilty. On appeal, Chiron obtained a finding that the trial Judge’s ruling had been in error. By majority, the NSW Court of Criminal Appeal quashed the conviction and ordered a retrial. The majority Judges, Street CJ and Nagle CJ at CL arrived at their conclusion by different paths. Street CJ at [5] regarded the admission of guilt involved in the change of plea to guilty as tainted. It was not a free and voluntary confession and not properly available to the jury as a basis for returning the verdict of guilty. Nagle CJ at CL at [14] regarded the plea of guilty as having been made by the accused person freely and voluntarily but, nevertheless, induced by an incorrect ruling of the trial Judge as to the admissibility of material evidence and thereby resulting in a “miscarriage of justice”.
Further elucidation of the jurisprudence is contained in R v Toro-Martinez [2000] NSWCCA 216 at [16]-[28].
We accept that, in these circumstances, an erroneous “ruling” by the trial Judge could lead to a miscarriage of justice. For the purposes of resolving the present appeal, whether the trial Judge’s ruling set out at [8] above is correct will be of critical importance.
Statutory framework
It is convenient to separately identify each charge by reference to the statutory provisions relevant to that charge.
Using false document
The elements of the offence are contained in s 347 of the Criminal Code which provides as follows:
347 Using false document
A person commits an offence if the person uses a false document, knowing that it is false, with the intention of—
(a)dishonestly inducing someone else to accept it as genuine; and
(b)because the other person accepts it as genuine, dishonestly—
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing the exercise of a public duty.
A number of definitions contained in s 300 of the Criminal Code are relevant. They are:
dishonest means—
(a)dishonest according to the standards of ordinary people; and
(b)known by the defendant to be dishonest according to the standards of ordinary people.
…
gain means—
(a)a gain in property, whether temporary or permanent; or
(b)a gain by way of the supply of services;
and includes keeping what one has.
…
obtain includes—
(a)obtain for someone else; and
(b)induce a third person to do something that results in someone else obtaining.
(Notes omitted)
In addition to those definitions, the definition of “property” applicable pursuant to s 144 of the Legislation Act 2001 (ACT) (the Legislation Act) should also be mentioned. That definition appears in the dictionary, Part 1 to the Legislation Act as follows:
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
NoteA thing in action is an intangible personal property right recognised and protected by the law. Examples include debts, money held in a bank, shares, rights under a trust, copyright and right to sue for breach of contract.
Section 160(1) of the Legislation Act provides that a reference in an act to a person includes a reference to a corporation as well as individual.
Obtaining Property by Deception
The elements of this charge are contained in s 326 of the Criminal Code. It is in the following terms:
326 Obtaining property by deception
A person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property.
(Note omitted)
It is apparent that the definitions of “dishonest” and “obtain” in s 300 of the Criminal Code and the definition of “property” applicable under the Legislation Act are relevant to this charge. The following section of the Criminal Code is also relevant to this offence:
328 Meaning of obtains for div 3.3.2
(1) For this division, and for the application of section 313 (Receiving) to this division, a person obtains property if—
(a) the person obtains ownership, possession or control of it for the person or someone else; or
(b)the person enables ownership, possession or control of it to be retained by the person or someone else; or
(c)the person induces a third person to pass ownership, possession or control of it to someone else; or
(d) the person induces a third person to enable someone else to retain ownership, possession or control of it; or
(e) section 330 (2) or (3) (Money transfers) applies.
(2) The definition of obtain in section 300 does not apply to this division, or for the application of section 313 (Receiving) to this division.
Grounds of appeal against conviction
In the Amended Notice of Appeal against conviction, the appellant expressed the grounds as:
3.Justice Burns erred in law in refusing the appellant the opportunity to run defences including:
(a)that the Respondent prosecuted the appellant for incorrect offences;
(b)on the facts and proposed evidence relating the Counts of Use False Document, it was not possible in fact or law to convict the appellant of counts 1, 3, 5 and 7 of the indictment;
(c)on the facts and proposed evidence relating to the Counts of Obtain Financial Advantage by Deception it was not possible in fact or law to convict the appellant of counts 2, 4, 6 and 8.
4.On the evidence, the conduct of the accused was not capable, at law, of making out any of the offences.
5.The trial Judge misdirected himself when he held in relation to Counts 1, 3, 5 and 7 that:
(a)the appellant, in his personal capacity, "used" the false document when it was the corporation known as ANDC Pty Ltd (ANDC) that used the documents for an application for a Commencement Notice under the Building Act 2004 (ACT) ["the application"];
(b)it was not alleged that the document was being used for any other purpose;
(c)only the appellant and not ANDC was capable of using the false document for the application;
(d)the assertion that the accused was acting as a servant, agent or nominee of ANDC was irrelevant;
(e)the appellant obtained a gain.
6.In relation to Counts 2, 4, 6 and 8, His Honour erred in law in not allowing the appellant to run a defence on the basis that:
(a)he, in his personal capacity or otherwise, did not obtain a financial advantage;
(b)that the financial advantage gained, being contractual payments, was not brought about by the deception but rather by performing the contract.
7.By depriving the appellant of the right to run his defences, he was effectively forced to enter guilty pleas and did not receive a fair trial contrary to the Human Rights Act 2004 (ACT) and the common law.
For the purposes of the appeal, we will treat the conclusion expressed at [8] above as a ruling of law as to the way in which the jury would be charged by the trial Judge in deciding on its verdicts. (The precise status of the proposed direction extracted in [8] is debatable. However, it is not necessary for the purposes of this appeal to enter into that discourse.)
The grounds of appeal focus on the contention that the appellant, himself, as opposed to the company, could not be lawfully convicted on the offences charged in the indictment as a matter of law.
Obviously, so far as the facts were in issue, these were a matter for the jury in a trial. The appellant contends that the facts put forward by the Crown could not lead to a conviction. We have to proceed on the basis of determining whether the appellant’s contention is correct at law.
Using false document
The first point taken is that the appellant himself did not “use” the false documents. The appellant contends that it was the company that used the false documents. It was the company that required the insurance and not the appellant, for it was the company that was to engage, and did engage, in the building work.
It is important to note that the appellant does not challenge the facts contained in the Agreed Statement of Facts which was tendered without objection after his plea of guilty on 26 September 2019. The appellant’s argument is a legal one which must assume the facts as asserted in the agreed statement; see the extract from Meissner in [13] above.
The difficulty for the appellant is the admission contained in the Agreed Statement of Facts that he submitted the false insurance certificates to ACT Metropolitan Building Certifiers. Contrary to the submission of the appellant it is not to the point that the proposed building work was to be done by ANDC Pty Ltd. “Uses” for the purpose of s 347 means the act of deploying or actually dealing with the relevant document; see Sultan v The Queen [2008] NSWCCA 175 at [35]-[42] per Spigelman CJ (Price and McCallum JJ agreeing).
Here, it is uncontested that the appellant himself forwarded the false document with the intention and hope that the company would obtain Commencement Notices. That is a use of the false document. It is putting the false document into circulation to achieve that aim.
The appellant had the intention at that time of:
(a) inducing ACT Metropolitan Building Certifiers to accept it as genuine; and
(b) obtaining a gain of property (money under the building contracts).
Of course, the intended gain of property would not be instantaneous. The deception of ACT Metropolitan Building Certifiers concerning insurance would lead to the intermediate step of a Commencement Notice issuing which, in turn, would allow the building work to start. After the building work commenced, the Owners would commence paying amounts due to the company and this would constitute a “gain”.
It was not in contest that the intended gain could be a gain to “someone else” which was, in this case, the company. We reject the submission that because the gain intended by the appellant was one which the company would make when it carried out the building work it must follow that only ANDC Pty Ltd could “use” the false insurance certificates. The plain meaning of s 347 and the context of the extended definitions which apply to the section are contrary to that proposition.
Obtaining property by deception
Whether the appellant obtained the property in question by deception is a question of fact for the jury. However, the appellant contends that he could not be guilty of these offences on the admitted facts.
The required steps, as a matter of law, in forming a conclusion can be set out as follows.
Was it the appellant himself that perpetrated a deception as opposed to the company? For the reasons given above in relation to “uses”, it was the appellant himself.
Was there a deception? According to [29], [35], [41] and [47] of the Agreed Statement of Facts, ACT Metropolitan Building Certifiers issued Commencement Notices in relation to the building work to be done for the Owners as the result of receiving, in each case, a false insurance certificate. It is clear beyond argument that ACT Metropolitan Building Certifiers only issued the Notices because of the receipt of the false certificates. Had the appellant not provided those certificates the Notices would not have been issued.
Did the appellant “obtain” property? Again, it was not in dispute that the property in question may be obtained by the company, as opposed to the appellant himself, by reference to s 328(1)(a) of the Criminal Code.
Did the appellant obtain property by that deception? In [30], [36], [42] and [48] of the Agreed Statement of Facts it is asserted that the Owners paid various sums to ANDC Pty Ltd having been deceived by the appellant as to the legal entitlement of the company to perform the relevant building works. The appellant contends that the property (money) paid under the building contracts was not obtained by the deception but obtained instead by the carrying out of building work under the respective building contracts. It is not necessary that the property be obtained instantaneously. As Penfold J in R v Alhassan [2010] ACTSC 84 at [22] observed, in relation to an analogous provision of the Criminal Code, that there is clear “scope for the obtaining to occur some time after the deception”. The causal link is established by the holding out that the company was legally entitled to engage in the building work, whereas it was not. It is not to the point that the company also had to engage in the building work to earn the contractual payments.
We do not accept that his Honour applied a “but for” test in relation to causation. It was implicit in his Honour’s proposed direction that the test to be applied by the jury was a common sense test. Such an approach accords with authority; see Royall v The Queen (1991) 172 CLR 378 in which the Court adopted the comments of Burt CJ in Campbell v The Queen [1981] WAR 286 at 290.
Indeed, we see the submission that the property (or gain) must, as a matter of law, have been obtained by the company only by reason of its performance of the contracts as contrary to the common sense analysis of causation in the circumstances of this case.
The trial Judge’s proposed direction
We find no error in the trial Judge’s conclusion set out at [8] above in what we have treated as a ruling of law as to the way in which the jury would be charged by the trial Judge in deciding on its verdicts. There is no miscarriage of justice. The appellant was rightly convicted on his pleas of guilty.
Fair trial
The appellant also contends that he did not receive a fair trial. He contended that the trial Judge involved himself in restructuring the prosecution and advised the Crown concerning multiple faults in the indictment. We have closely examined the transcript of the trial concerning the way in which the proceedings unfolded. We are of the view that the trial Judge did nothing more than express a view as to the law to be applied and sought a refinement consequent upon the Crown’s opening as to what the “gain” was alleged to be for the purposes of the Crown’s case. This latter matter was raised by counsel for the appellant, himself, before the trial Judge. It is not open to the appellant to complain about the Crown placing its case on the footing, after argument, that the “gain” it relied upon is money and not the Commencement Notice. In the circumstances of this case, once it is found that the appellant was rightly convicted on his pleas of guilty, there is no element of the trial which was unfair to him. The Human Rights Act 2004 (ACT) has no application to the facts.
The sentence imposed by the trial Judge
The trial Judge sentenced the appellant to the following terms of imprisonment set out in the table below:
COUNT
SENTENCE
COMMENCING
RELEASE DATE
Count 1 17 months 28 January 2020 27 June 2021 Count 2 22 months 28 January 2020 27 November 2021 Count 3 17 months 28 July 2020 27 December 2021 Count 4 22 months 28 July 2020 27 May 2022 Count 5 13 months 28 May2021 27 June 2022 Count 6 17 months 28 May 2021 27 October 2022 Count 7 16 months 28 August 2021 27 December 2022 Count 8 19 months 28 August 2021 27 March 2023
Eligible for Release: 27 January 2021
Effective Total Sentence: 3 years, 2 months
The trial Judge, having imposed the above sentences, then ordered that 12 months of that sentence be served by way of full-time imprisonment and that the balance be suspended upon entry into a Good Behaviour Order for a period of 2 years and 3 months.
On 1 April 2020 the appellant was granted bail and his sentence stayed pending the determination of this appeal. At that time, the appellant had served 64 days of his sentence.
Grounds of appeal on sentence
In the amended notice of appeal, the grounds concerning sentence were expressed as follows:
9. …His Honour Burns J made the following errors of law in relation to sentencing.
(a) Over objection, he allowed the Respondent to recommend that only a full time period of imprisonment was appropriate;
(b) He attached too much weight to the submission by the Respondent that the victims suffered financial loss when there was no evidence that they had suffered loss due to there being no Homeowners Warranty Insurance;
(c) He reversed the onus onto the appellant to prove that the victims did not suffer financial loss;
(d) The Respondent erroneously submitted that an aggravating feature was that the appellant breached the trust of the victims, when in fact and law there was no relationship of trust. As a consequence, his Honour attached no weight or insufficient weight to the appellant's previous good character;
(e) He effectively made the appellant's good character an aggravating feature rather than a mitigating consideration;
(f) Alternatively, he reduced the weight of the appellant's good character, by holding that it was the appellant's good character that induced the victims into enter into the contracts when there was no evidence of this.
10. The individual sentence for each count was manifestly excessive.
11. The total sentence imposed was in all the circumstances manifestly excessive.
Over objection, he allowed the respondent to recommend that only a full time period of imprisonment was appropriate
In the course of the Crown’s submissions at the sentencing hearing, the Crown submitted that in the light of the maximum penalties, the objective seriousness and need for denunciation and deterrence in a case such as the present, nothing other than a sentence of full-time imprisonment was warranted. The submission continued, that the applicable sentencing principles would not adequately be addressed by the mere imposition of a fine and a Good Behaviour Order or community service work as has been suggested.
We see no error in this submission being made to the Court nor do we regard it as material to the outcome of the appeal on sentence.
Attached too much weight to the submission by the respondent that the victims suffered financial loss when there was no evidence that they had suffered loss due to there being no Home Owners Warranty Insurance
Reversed the onus onto the appellant to prove that the victims did not suffer financial loss
These two grounds can be taken together. It is first necessary to consider what loss was caused by the offences. The Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) at s 33(1)(e) directs attention to loss resulting from the offence.
The deception allowed building work to be carried out in circumstances where that building work could not lawfully be carried out. This could have led to three sources of financial loss. First, it would create the opportunity for unrectified defective building work to occur. Second, when the building authority found out about the deception, steps could have been taken to immediately stop further work. In fact, this did happen on three uncompleted projects when the insurance fraud was discovered. This would have had the consequence that the building work could have become much more expensive when a new contractor was engaged to carry out the residue of the contract and it could have led to delay in completion of the works. Third, the insurance policy in question was not available to be called upon.
It is common ground that the failure to obtain the Home Owners Warranty Insurance was not the cause of any loss, in the circumstances of this case, because that insurance did not respond to the circumstances which later occurred.
The trial Judge set out his remarks on loss at [26]-[30]:
26. It is similarly not an element of the offence created by s 326 of the Criminal Code that a loss is occasioned to another. The gravamen of that offence is the obtaining of property dishonestly. I accept that it would mitigate the seriousness of the present offences if you were to establish the victims had suffered no loss or negligible loss by reason of these offences.
27. However, it is incumbent on you to establish that fact as a matter of mitigation on the balance of probabilities. To focus on any potential loss by reason of the absence of insurance is too narrow an approach, focusing only on the precise means by which these frauds were effected. There is evidence that some building works were undertaken on the three projects where “Stop Work” notices were issued but the evidence does not establish that no significant loss was occasioned to your victims.
28. There is no evidence at all about the fourth project, the knock down and rebuild at Lyons, on behalf of the Hogarths. Therefore, you have not established that they suffered no significant loss by your crimes.
29. Leaving aside economic loss, it is very clear that your actions caused significant anxiety and stress to the victims who provided Victim Impact Statements. Construction of a home or major renovations to an existing home are major financial commitments for the vast majority of people, and are apt to cause anxiety and stress. Your offences plainly increased the stress and anxiety of the victims who provided the Victim Impact Statements. I do not accept that the relevant effect of your offences on your victims for sentencing purposes should be confined to an inability to make a claim against HOWI.
30. Were it not for your use of the false HOWI certificates, ANDC Pty Ltd could not have undertaken any of the contracted works. Every fault or failing in the performance of the contract works is a consequence of that simple proposition. You have failed to demonstrate that the victims suffered no financial loss or other adverse consequence by reason of your offending.
In the extracted paragraphs above, we take the trial Judge as referring to the situation of the kind set out in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64] where the majority said:
But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known.
(Footnote omitted)
There was no finding by the trial Judge that the building work actually carried out was not worth the money paid for it.
We see no error in the trial Judge’s reasoning.
The respondent erroneously submitted that an aggravating feature was that the appellant breached the trust of the victims, when in fact and law there was no relationship of trust. As a consequence, his Honour attached no weight or insufficient weight to the appellant's previous good character
The trial Judge made no finding that there had been a breach of trust.
His Honour effectively made the appellant's good character an aggravating feature rather than a mitigating consideration
The trial Judge noted that the appellant had no criminal record. The trial Judge continued “Prior good character is entitled to some weight, but it must be recalled that in part, it was your prior good character and reputation which put you in a position to commit these offences”.
It cannot be said that the trial Judge took into account prior good character as an aggravating feature.
Alternatively, he reduced the weight of the appellant's good character, by holding that it was the appellant's good character that induced the victims into enter into the contracts when there was no evidence of this
This ground proceeds on a misstatement of the trial Judge’s remarks. The trial Judge referred only to the fact that good character and reputation put the appellant in a position to enter building contracts or, more accurately, to cause the company to enter into building contracts with members of the public. Although unexpressed, the trial Judge probably had in mind the publicly known processes of the requirements to obtain a building licence and the requirements of the maintaining of it.
The individual sentence for each count was manifestly excessive
The maximum penalty for each offence is 10 years’ imprisonment, a fine not exceeding $150,000, or both. At the heart of the matter, the appellant used a forged document to bypass statutory preconditions to the carrying out of building work. The total of the payments under the building contracts was approximately $1.4 million. The deception was “planned, premeditated and sophisticated” and the object of the deception was to obtain a financial benefit for himself through a company of which the appellant was the sole Director.
The trial Judge accepted that during the period covered by the offences that the appellant was suffering from stress and acute anxiety primarily arising out of his inability to profitably conduct the construction business. However, the trial Judge considered that the appellant continued to attempt to minimise his culpability and downplay the seriousness of the offences. The trial Judge had regard to the fact that the appellant had not been previously convicted of a criminal offence and also made a finding that it is unlikely that the appellant will reoffend particularly because he will not be any longer conducting his own business. His Honour expressed the view that there are reasonable prospects for rehabilitation. The appellant’s plea of guilty on the second day of the trial entitled him to a discount of 5%.
In these circumstances, a case of manifest error has not been demonstrated. The differing individual sentences are explained on the basis of the varying amounts obtained under the contracts. This being some reflection of the objective gravity of the offending which the trial Judge described as serious examples of this form of offending and that he placed within the mid-range of such offences.
The total sentence imposed was, in all the circumstances, manifestly excessive
Apart from its assertion, there was no analysis directed to this ground by the appellant.
The head sentence of three years and two months cannot be shown to be manifestly excessive. The trial Judge had regard to the purposes of sentencing set out in s 7 of the Sentencing Act. He said:
54.…The predominant sentencing consideration is the prevention of such offences by deterring others from committing the same or similar offences.
55.It is also important to denounce your conduct, to make you accountable for your actions and to recognise the harm done to your victims and the community. Rehabilitation remains an important consideration but cannot justify imposition of sentences that do not adequately address the other considerations to which I have referred. In my opinion, terms of imprisonment are the only just and appropriate sentences for these offences.
56.Despite the fact that you have no prior convictions, I am satisfied that at least part of the sentences should be served by way of full-time imprisonment. Anything less would not act as an effective deterrent to others in the building industry, having regard to the potentially large sums of money involved.
The trial Judge then gave reasons for the accumulation which were not the subject of analysis. Significantly, the minimum term to be served was of 12 months whereupon the balance will be suspended. It was not made to be contingent upon the parole authority. That is favourable to the appellant and reflects findings as to the unlikelihood of reoffending, particularly as the appellant was no longer conducting his own business and as such would have reasonable prospects for rehabilitation. It is to be remembered that the minimum term of imprisonment is one “that a judge determines justice requires that he must serve having regard to all the circumstances of his offence” (Knight v Victoria [2017] HCA 29; 261 CLR 306 at [8], citing R v Knight [1989] VR 705 at 710-11).
Orders
The orders of the Court are:
(a)The appeal is dismissed.
(b)The appellant’s bail is revoked.
(c)The appellant is to be taken into custody and resume the sentence imposed upon him giving him credit for 64 days as having been served.
(d)The trial Judge’s orders that the appellant’s sentence be suspended after a period of 12 months whereupon the appellant can enter into a Good Behaviour Order for a period of 2 years and 3 months on the terms ordered by the trial Judge is confirmed.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Acting Justice Robinson and Acting Justice Crowe. Associate: Date: 22 June 2020 |
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