Woodhouse v Leslie
[2023] WASC 11
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WOODHOUSE -v- LESLIE [2023] WASC 11
CORAM: SOLOMON J
HEARD: 30 NOVEMBER 2022
DELIVERED : 23 JANUARY 2023
PUBLISHED : 24 JANUARY 2023
FILE NO/S: SJA 1056 of 2022
BETWEEN: CLAYTON STEVEN WOODHOUSE
Appellant
AND
NATHAN JOHN LESLIE
Respondent
ON APPEAL FROM:
For File No: SJA 1056 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE HEATH
File Number : PE 41484 of 2021
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of fraud - Appellant sentenced to a term of immediate imprisonment - Where prosecution agreed that an Intensive Supervision Order was appropriate - Whether sentence manifestly excessive - Whether magistrate ought to have suspended term of imprisonment - Dinsdale v The Queen - Whether magistrate engaged in two step sentencing process
Criminal law - Miscarriage of justice - Where fresh evidence available after trial - Where fresh evidence impacts upon appellant's motivation - Whether strong probability that fresh evidence would have produced a different outcome at first instance
Legislation:
Criminal Appeals Act 2004 (WA) s 8(1), s 9(1), s 14(5), s 31(4), s 39, s 40(1)(e)
Criminal Code 1913 (WA) s 409(1)(c)
Sentencing Act 1995 (WA) Pt 10, s 9AA(5), s 76, s 6(2), s 84A
Result:
Leave to appeal granted
Appeal allowed
Sentence of 12 months' immediate imprisonment set aside
Appellant re-sentenced to 11 months 21 days' imprisonment, conditionally suspended for 12 months
Category: B
Representation:
Counsel:
| Appellant | : | D Grace KC |
| Respondent | : | J Whalley SC |
Solicitors:
| Appellant | : | David Manera Barrister and Solicitor |
| Respondent | : | State Director of Public Prosecutions |
Cases referred to in decision:
Alonte v Beswick [2013] WASCA 207
Brown v The State of Western Australia [2010] WASCA 228
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Dinsdale v The Queen (2000) 202 CLR 321
Fogg v Western Australia [2011] WASCA 11
Franco v Director of Public Prosecutions [2022] WASC 340
Gray‑Herewini v Lee [2013] WASC 200
Houghton v The State of Western Australia [No 2] [2022] WASCA 7
Kabambi v The State of Western Australia [2019] WASCA 44
Ninyette v Jones [2018] WASC 317; (2018) 68 MVR 186
O'Brien v Narang [2018] WASC 376
Roberts v The State of Western Australia [2014] WASCA 239
Rubin v Western Australia [2016] WASCA 2; (2016) 75 MVR 274
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shi v The State of Western Australia [2020] WASCA 197
Stanley v The State of Western Australia [2018] WASCA 229
Wheeler v R [No 2] [2010] WASCA 105
Wilson v Pymm [2015] WASC 449; (2015) 73 MVR 464
Yu v Western Australia [2019] WASCA 197
SOLOMON J:
Background
On 22 March 2022 the appellant pleaded guilty to one count of gaining a pecuniary benefit by fraud contrary to s 409(1)(c) of the Criminal Code 1913 (WA) encompassing 27 instances of offending in the total sum of $25,888.94.
In advance of sentencing a pre-sentence report and other documents were prepared including a report from the appellant's treating psychiatrist. The plea in mitigation and sentencing took place before Chief Magistrate Heath on 11 July 2022.
At the outset of submissions for the appellant, his counsel advised that it was 'a joint submission for an intensive supervision order' pursuant to Pt 10 of the Sentencing Act 1995 (WA). Senior counsel for the respondent on the appeal explained that to mean that for the purpose of sentencing, the prosecution did not suggest that an intensive supervision order 'would be an inappropriate sentencing disposition'.[1] In plain terms and stripped of the double negative that not infrequently accompanies begrudging concessions from State authorities, that means in my view that the prosecution accepted at the hearing that an intensive supervision order would be an appropriate sentence.
[1] Transcript, Clayton Steven Woodhouse v Director of Public Prosecutions for WA, Supreme Court of Western Australia, 30 November 2022, 17.
At the sentencing hearing, the undisputed facts presented to the Chief Magistrate were as follows:
The accused was employed by the law firm Robertson Hayles Lawyers between July 2017 and March 2021, first as a paralegal, and then as a barrister and solicitor practicing in criminal law.
Between 30 June 2020 and 3 March '21, the accused requested disbursements from the firm's finance manager for disbursements the accused said he would incur in the course of his employment. The disbursements related to air fares, car hire, accommodation, training, expert reports, and incidentals.
The firm's finance manager paid the requested disbursements from the firm's general account into the accused's bank account as requested. It was established that the accused had not, in fact, personally paid for the claimed expenses, and was not entitled to any reimbursement. As a result of an investigation by the firm in relation to the claims submitted by the accused and paid by the firm, a total of 27 irregularities were identified.
The accused's employment was terminated and his conduct reported to the Legal Practice Board of WA whereby his certificate to practice was suspended and subsequently cancelled. The total amount obtained by the accused was $25,888.94. Once the irregularity amount of $25,888.94 was brought to the attention of the accused, the accused volunteered to pay the victim back the full irregularity amount and did pay it back in full within a reasonable time frame.[2]
[2] Transcript Western Australian Police v Clayton Steven Woodhouse, Magistrates Court at Perth, Western Australia, 11 July 2022, 2 ‑ 3.
In submissions on behalf of the appellant it was accepted that the offending was serious and constituted 27 acts over a period of nine months. The amount was significant but not at the high end. As to the appellant's motive, it was submitted on the appellant's behalf that:
The game was money. All right. There's no doubt about that. So there has to be inherently some level of greed involved when someone is committing a fraud in order to obtain a monetary gain. That is conceded and, of course, accepted by the defence.[3]
[3] ts, 11 July 2022, 4.
On the basis of the psychiatric report, the appellant's counsel submitted that the appellant had undiagnosed attention‑deficit/hyperactivity disorder (ADHD) which carried with it the symptom of impulsivity. The report explained that people who suffer from ADHD, including the appellant, may experience impulsivity, and they find it much more difficult to think through the consequences of their actions before acting. It is very difficult for people with ADHD who experience this impulsivity to delay their gratification, and much of the time, they act in ways that are completely contrary to their interests. In the appellant's case, the report explained that these symptoms were present and persistent.
As to the appellant's personal circumstances, it was explained that the appellant had endured the shame and burden of losing his legal career. He had a wife and a three-year-old daughter.
In his immediate response to the suggestion of a non‑custodial sentence, the Chief Magistrate commented:
I have difficulty with the submission that an intensive supervision order would be appropriate. I would have thought a lawyer committing a fraud in the course of his practice, a term of imprisonment would be inevitable, and that the argument would have been as to whether or not it was appropriate to suspend it or not.[4]
[4] ts, 11 July 2022, 8.
Following some further exchange with counsel, the Chief Magistrate began his sentencing remarks as follows:
You have pleaded guilty to this offence at what can certainly be considered the earliest opportunity. You're entitled to the maximum discount provided for in the Sentencing Act in relation to that.[5]
[5] ts, 11 July 2022, 9.
The Chief Magistrate made reference in his remarks to the psychiatric report:
I have the benefit of Dr McKenchie's report, which identifies that at the time, you were suffering undiagnosed ADHD with characteristics of impulsivity, acting contrary to your best interests, and a lack of consequential thinking, which have contributed to this offending.[6]
[6] ts, 11 July 2022, 10.
His Honour acknowledged that as a consequence of the offending, Mr Woodhouse had since been suspended from practicing as a lawyer, leading to a degree of isolation from the legal profession, notwithstanding the number of character references tendered to the court from lawyers in support of his good character. His Honour noted further:
It is all the more tragic when I read from the submissions that you did not take the easy path into the law, but made a decision after working in other areas to qualify and achieve your ambition.[7]
[7] ts, 11 July 2022, 10.
The Chief Magistrate ultimately expressed his decision in the following terms:
In my view, fraud by a lawyer in the course of his practice can only have one outcome where there is a substantial or not insubstantial amount of money involved, and that is a term of imprisonment. I must, having determined that it is appropriate to imprison you, whether or not that term should be suspended.
There is clearly some element of undiagnosed mental health in this, which certainly makes you not an appropriate vehicle for deterrence, but this is a serious offence, and I – in my view, it is not appropriate to suspend the term either conditionally or otherwise or partially, and you will be required to serve the term. I'm going to sentence you to 12 months imprisonment.[8]
[8] ts, 11 July 2022, 11.
The appellant filed an appeal notice on 14 July 2022 and an application for bail shortly thereafter. Bail was granted by a judge of this court pending the outcome of the appeal after the appellant had spent nine days in prison.
Right to appeal
Pursuant to s 8(1) of the Criminal Appeals Act 2004 (WA), a person can apply to appeal against a sentence imposed in the Magistrates Court on one or more of the following grounds:
(a)That the court of summary jurisdiction –
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)That there has been a miscarriage of justice.
Section 9(1) of the Criminal Appeals Act provides that leave to appeal is required for each ground of appeal. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has reasonable prospects of succeeding. This means that the ground is required to have a real, rational, and logical prospect of succeeding.[9] I shall deal with leave in respect of each ground in turn.
[9] Ninyette v Jones [2018] WASC 317; (2018) 68 MVR 186; Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Grounds of appeal
Mr Woodhouse initially appealed his sentence on the single ground of an implied error in law by the imposition of a manifestly excessive sentence. The ground was particularised as follows:
1.An Intensive Supervision Order was the appropriate disposition in all the circumstances of the offence and the offender, particularly given that the Prosecution acting on behalf of the community supported that disposition.
2.In the alternative to 1, above, a wholly suspended term of imprisonment ought to have been imposed in all the circumstances of the offence and the offender.
3.The sentence of an actual custodial sentence was outside the range of sentences open to be imposed in all the circumstances of the offence and the offender.
On 14 November 2022 the appellant applied for leave to rely upon fresh evidence, including a psychological report by Ms Della Commons regarding the appellant dated 31 October 2022 (Commons report).
In the course of the appeal hearing, leave was granted to the appellant to amend the grounds of appeal to add three additional grounds; two of express error and one contending a miscarriage of justice based on the Commons report. The three grounds were subsequently articulated as follows:
1.By reason of fresh evidence that has come into existence since the sentence imposed by the Magistrates Court a miscarriage of justice has occurred.
2.The learned magistrate erred in law in failing to engage in the two-step approach enunciated by the High Court of Australia in Dinsdale v The Queen (2000) 202 CLR 321
3.In relation to the reduction in sentence for the plea of guilty, the learned magistrate erred in law by failing to indicate the extent of the reduction in open court, contrary to Section 9AA(5) of the Sentencing Act 1995.
Independently of the additional grounds of express error, at the hearing of the appeal, senior counsel for the appellant explained that the express errors were, in effect, encompassed by the original ground relating to implied error asserting manifest excess in the sentence. The express errors, it was said, 'must lead somewhere' and it was the express errors that led the Chief Magistrate to the manifestly excessive sentence.[10] It may also well be the case that if the court finds express error, it may not need to consider the implied error of manifest excess. It is therefore convenient to deal first with the contentions of express error. I shall then deal with the asserted implied error and then finally with the asserted miscarriage of justice. I shall thus address each of the following grounds in turn:
1.the express error by the failure to comply with s 9AA when dealing with the appellant's plea of guilty;
2.the express error by the failure to comply with the test in Dinsdale when considering suspension of the sentence of imprisonment;
3.the implied error by the imposition of a manifestly excessive sentence; and
4.the miscarriage of justice arising by reason of evidence contained in the Commons report.
Failure to comply with s 9AA(5)
[10] ts, 30 November 2022, 6.
A failure to comply with s 9AA(5) by failing to state the fact and the extent of the reduction to a head sentence for a plea of guilty to an offence does not automatically amount to a material error that requires appellate intervention. This is because the failure to state the fact and the extent of a reduction in sentence for a plea of guilty does not necessarily mean that a discount was not given. However, failure by a sentencing judge or magistrate to refer to the effect of a plea of guilty will ordinarily be an indication that the judicial officer has overlooked the plea of guilty and failed to take it into account in determining the sentence to be imposed.[11]
[11] O'Brien v Narang [2018] WASC 376 [38].
It may also be the case that the failure to take account of a plea of guilty is evidenced or at least reinforced by a consideration of the excessive nature of the sentence itself.[12] That is indeed how I understood the submission from senior counsel for the appellant when he explained that the express error led to, and was therefore encompassed by, the implied error. Senior counsel submitted that the excessive character of the sentence is manifest because if indeed the full discount of 25% was applied, the Chief Magistrate must have adopted 16 months as a starting point which, it was submitted, was outside the range of a just sentence in the circumstances.
[12] Roberts v The State of Western Australia [2014] WASCA 239 [49].
In my view it is not possible to conclude that the Chief Magistrate failed to take into account the appellant's plea of guilty and apply an appropriate discount. When the remarks of the Chief Magistrate are read fairly and as a whole, it is tolerably clear that there was no failure to comply with s 9AA. That is evident from the passage of His Honour's remarks that I have set out at [9] above. Although the reference to the discount appears at the beginning of the remarks and are not repeated at the end when the sentence was pronounced, the remarks were not lengthy. There was no necessity in the circumstances to make additional reference to the discount and in my view no error is apparent from the failure to do so.
I decline to grant leave in respect of this ground of appeal.
Failure to engage in Dinsdale two-step process
This ground of appeal relates to the Chief Magistrate's decision not to suspend the term of imprisonment. Section 76 of the Sentencing Act deals with the suspension of a term of imprisonment and provides:
76.When imprisonment may be suspended
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
In Dinsdale v The Queen, Kirby J discussed the history, construction and application of those provisions. His Honour explained that:
[T]he scheme of the legislation, and the two steps which s76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term .... This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. ... the structure and language of s76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.[13]
[13] Dinsdale v The Queen (2000) 202 CLR 321 [85] (Dinsdale).
Following the decision in Dinsdale it has become well established that the sentencing magistrate is required, in considering whether to suspend a term of imprisonment, to reconsider afresh all the matters relevant to the circumstances of the offence and those personal to the offender. The appellant contends that the Chief Magistrate failed in his remarks to reconsider afresh all the relevant matters. That error is said to be manifest in the passage set out at [12] above.
With great respect and recognising the pressures and constraints of the Magistrates Court, it does appear to me that this aspect of His Honour's remarks falls short of the embodiment of judicial clarity. But of course, that is not the test in fulfilling the requirements of Dinsdale as articulated by Kirby J. In Brown v The State of Western Australia,[14] the Court of Appeal considered a challenge to a sentence on the basis of a failure to satisfy the requirements explained in Dinsdale. It appears to me that the observations and conclusions of the Court of Appeal in that case, represent the minimal requirements to be met in satisfying the requirements of Dinsdale.
[14] Brown v The State of Western Australia [2010] WASCA 228 (Brown).
In Brown, the appellant had pleaded guilty in the District Court to a string of offences including stealing a motor vehicle and driving recklessly, burglary, stealing, and aggravated assault. He was sentenced to a total effective term of 2 years and 4 months' imprisonment. One of the grounds of appeal was that the sentencing judge had erred by failing appropriately to consider suspending the sentence of imprisonment by reconsidering all of the relevant factors. In substance, that is the same ground sought to be advanced by the appellant in this appeal.
The remarks of the sentencing judge alleged to reflect error in Brown were as follows:
A court should not impose a term of imprisonment except where the court considers that the seriousness of the offending is such that only imprisonment can be justified. In this matter, I have considered all sentencing options and I conclude that in view of the seriousness of the offending, an immediate term of imprisonment is the only appropriate sentence.[15]
[15] Brown [28].
Mazza JA (with whom Pullin and Newnes JJA agreed) noted that after the sentencing judge concluded his sentencing remarks, the following exchange took place between the judge and defence counsel:
COUNSEL: … Did your Honour make mention of exercising your discretion to refuse to consider suspension?
JUDGE: Of the sentence?
COUNSEL: Yes.
JUDGE: I said that I'd concluded that the only appropriate sentence was an immediate term of imprisonment.
COUNSEL: Thank you, your Honour.[16]
[16] Brown [29].
Mazza JA then referred to the content of s 6 and s 39(2) and (3) of the Sentencing Act and made reference to the requirements of Dinsdale. Mazza JA then concluded:
In my opinion, it is clear from the statement made by his Honour during his sentencing remarks, and from the exchange with counsel at the conclusion of those remarks, that he complied with s 39(3) of the Act. His Honour expressly stated on each of those occasions that the only appropriate sentence was an immediate term of imprisonment. In my opinion, those words can only mean that his Honour considered that it was not appropriate to impose any other sentencing option short of immediate imprisonment.
I do not accept the appellant's submission that when his Honour used the word "seriousness", in the passage of his sentencing reasons to which I have referred, he was only referring to the circumstances of the commission of the offence and not all of the relevant circumstances of the case.
The words used by his Honour, "the seriousness of the offending", are almost identical to the language used in s 6(1), (2) and (4) of the Act, which refer to "the seriousness of the offence" or "the seriousness of an offence". Moreover, the context in which the words were used was at the point in the sentencing remarks when his Honour was deciding whether or not to impose a term of imprisonment and whether that term should be served immediately. That is, he was speaking at the point where he was setting out the principles which had to be applied to the case and not in some general sense.
His Honour used the words "the seriousness of the offending" twice. First, in reference to the decision to impose imprisonment, and second, in forming the view that immediate imprisonment was the only appropriate sentence. In light of all this, it is clear that when his Honour used those words, he was using them in accordance with the meaning of that expression in s 6(2) of the Act. It is true, as the appellant points out, that his Honour did not make any express reference to the two-stage process in coming to his decision not to suspend the terms of imprisonment. It may be desirable, for the sake of clarity, for a sentencer to explicitly state that he or she has again taken into account all relevant sentencing considerations before rejecting the option of a suspended imprisonment order under s 39(2)(f) and (g). However, it is not an error to fail to do so if it is evident from a consideration of the sentencing remarks as a whole that the two‑stage approach required by the Act has been undertaken. It is plain from what his Honour said that he adopted the correct approach and he did not make the alleged express error.[17]
[17] Brown [37] ‑ [40].
In my view, two things relevantly emerge from the Court of Appeal's conclusions. First, the Chief Magistrate's remarks in this matter were sufficient in the circumstances to satisfy the requirement of Dinsdale so as to avoid error. Having concluded that a term of imprisonment was the appropriate sentence, the Chief Magistrate turned then to consider whether the term should be suspended. In that context he referred to the seriousness of the offence and concluded that the sentence ought not to be suspended. His Honour appropriately undertook the necessary two‑stage process and then at the second stage referred to the seriousness of the offence, which imported the considerations in s 6(2) of the Sentencing Act. The remarks were certainly not comprehensive, but on the authority of Brown, they were sufficient.
Secondly, it would have been desirable for His Honour to have been more fulsome in his explanation. I accept that the nature of the Magistrates Court does not generally afford the opportunity for more comprehensive explanations. However, I respectfully consider that these circumstances particularly warranted such a course. The appellant had no criminal record, and the prosecution was not seeking a custodial sentence and was expressly content with an intensive supervision order. In my view, the interests of justice may have been better served if more explanatory remarks had been conveyed. I understand that the perch of appellate luxury makes for a comfortable and convenient position to make such an observation. I appreciate that the observation is in respect of a court admirably dispensing justice in a far more pressured and difficult environment. However, the court system is indeed designed to permit just such an expanded opportunity for the reconsideration of issues so as to pursue a more refined and just system. The observation is not in my respectful view, an unrealistic and unwarranted admonition; it is the system working as it should.
In the circumstances, I would grant leave to the appellant in respect of this ground, but I would ultimately dismiss the ground.
Excessive sentence – implied error
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive are well established.[18] In brief summary:
(a)Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.
(b)An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
(c)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law, the standards of sentencing customarily imposed, the place that the criminal conduct occupies in the scale of seriousness of offending of that type, and the offender's personal circumstances.
(d)The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect.
(e)Merely showing that a lesser type of sentence was also reasonably open is insufficient to establish error.[19] An appellate court must demonstrate that the sentencing outcome was one that was not open to the sentencing judge or magistrate in the proper exercise of his or her Honour's discretion.[20]
[18] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[19] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [229] (Buss P, Mazza JA & Hall J).
[20] Shi v The State of Western Australia [2020] WASCA 197 [37].
The excessively unjust aspect of the sentence is said to be the failure to sentence the appellant with an intensive supervision order or alternatively to suspend the term of imprisonment.
The approach to an appeal against a refusal to suspend a term of imprisonment on the ground of implied error was explained by McClure P (with Mazza JA agreeing) in Fogg v Western Australia.[21] A court must not order immediate imprisonment unless it is positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgement which, by its nature, gives some latitude to the decision‑maker. In borderline cases, different types of sentences may be reasonably open. In such cases, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust and would reveal no implied error. Thus, it is for the appellant to satisfy the court that a judgment by the primary sentencing court that suspension was not appropriate was a conclusion that was not reasonably open.[22]
[21] Fogg v Western Australia[2011] WASCA 11[5] ‑ [10].
[22] Wilson v Pymm [2015] WASC 449; (2015) 73 MVR 464 [25]; Rubin v Western Australia [2016] WASCA 2; (2016) 75 MVR 274 [48] - [49].
In respect of the Chief Magistrate's decision not to suspend the sentence of imprisonment, the ground can thus only succeed if it was not open to the Chief Magistrate in the circumstances to be positively satisfied that suspension of the sentence was not appropriate. The fact that an appellate court might consider that a suspended sentence may also have been within the range reasonably open, does not establish error. The same principle applies to the Chief Magistrate's decision not to impose an intensive supervision order.
Offences of fraud
The maximum penalty for the offence is 7 years' imprisonment. The maximum summary penalty was 2 years' imprisonment and a fine of $24,000.[23] The latter is only a jurisdictional limit. The relevant maximum penalty for the purposes of this ground of appeal is 7 years' imprisonment.[24]
[23] Criminal Code 1913 (WA) s 409(1).
[24] Stanley v The State of Western Australia [2018] WASCA 229 [46].
Recently, in Franco v Director of Public Prosecutions,[25] Derrick J reviewed the standards of sentencing customarily observed for offences of this nature. In that matter, the appellant effectively obtained by fraudulent means a total of $39,110.90 from his employer over nine separate occasions. While acknowledging that the case cannot establish any precedent in terms of sentence and each case must be evaluated on its own particular facts, it is nevertheless worth noting some common and contrasting features.
[25] Franco v Director of Public Prosecutions [2022] WASC 340.
As this matter largely is, Franco v Director of Public Prosecutions involved a premeditated scheme that involved a significant but not an enormous amount of money fraudulently obtained from an employer. Both matters also involved early pleas of guilty from a person of otherwise good character, supporting a family and without any previous criminal record. In both matters, the appellant repaid the money within a reasonable time. The differences in the two matters included factors that would characterise this matter as more serious: in Franco v Director of Public Prosecutions the appellant's conscience did not permit him to spend the money which remained fully intact when the fraud was discovered; and here the appellant was a lawyer whom the public is entitled to expect to be a person of honesty and integrity.
As in this matter, the appellant in Franco v Director of Public Prosecutions contended that the sentence of 12 months' immediate imprisonment was manifestly excessive.
In reviewing the standards of sentencing customarily observed, Derrick J observed:
There is no generally appropriate type of sentence for fraud offences. Nor is there any established range of sentence for fraud offences. This is because of the very diverse circumstances in which fraud offences are committed and very diverse personal circumstances of the offenders who commit them.
The parties have not been able to locate any decisions of the Court of Appeal or any decisions of single judges of this court exercising their appellate jurisdiction that are apt comparators to the appellant's case. I have not been able to locate any such decisions. Having said this, it seems to me that a review of appellate decisions in this State, including appellate decisions of single judges of this court, permits two points to be made:
1.Sentences other than immediate imprisonment have been imposed for fraud offences at the lower end of the scale of seriousness even when the offender is not of good character; and
2.Only sentences of immediate imprisonment have been imposed for fraud offences at the higher end of the scale of seriousness involving serious and prolonged dishonesty and significantly larger sums of money than the total amount obtained by the appellant.
The appellant's conduct in committing the offences was, I have found, not at the lower end of the scale of seriousness or at the high end of the scale of seriousness. His conduct in committing the offences was around the middle of the scale of seriousness for fraud offences.
In reviewing appellate decisions of single judges of this court and in making the points stated in par 49 above, I have not overlooked that in this State comparable cases, in the context of deciding whether a judicial officer imposed the wrong type of sentence or a manifestly excessive or inadequate sentence, are comprised of the decisions of the Court of Appeal and its predecessor, the Court of Criminal Appeal.[26]
[26] Franco v Director of Public Prosecutions [2022] WASC 340 [48] ‑ [51].
The appellant accepted that his offending was serious. It was made all the more serious because he was a lawyer. His employer and the public were entitled to expect him to be honest. Moreover, his position as a lawyer negates at least to some degree, the significance of his prior good conduct and character, because it was the trust reposed in him that enabled his offending which was spread across 27 occasions.
In my view, the appellant's mitigating circumstances were such that it was open to the Chief Magistrate to suspend the sentence. However, it was in my view also reasonably open to the Chief Magistrate to impose a sentence of immediate imprisonment. I am unable to conclude that a sentence of immediate imprisonment was not within the range of available sentences.
In the circumstances, I would grant leave to the appellant in respect of this ground but I would ultimately dismiss the ground.
Miscarriage of justice
As noted above, the appellant seeks to rely upon what he characterised as 'fresh' evidence. The evidence was annexed to the affidavit of the appellant's solicitor, Mr David Manera. It comprised the Commons report dated 31 October 2022 and a letter from a company namely Citic Pacific Mining dated 1 November. The letter set out an offer of employment to the appellant as a Contracts Specialist.
This ground of appeal does not allege any error on the part of the Chief Magistrate. Rather, it asserts that by virtue of the matters disclosed by the fresh evidence, the sentence imposed ought now to be understood as a miscarriage of justice.
The first of those matters concerns the remark or concession made by counsel for the appellant at trial set out in [5] above. The effect of that concession was an acceptance that the appellant was driven to his dishonesty by nothing other than a financial motive in the form of greed. In contrast, the expert evidence of the appellant's treating psychologist is that the quest for money was driven by drug debts relating to amphetamine drug use. The use of drugs itself, according to the report, was to self‑medicate to address the symptoms of the appellant's undiagnosed ADHD condition. Although the undiagnosed ADHD condition was reported to the Chief Magistrate for the purposes of the sentencing, its link to the appellant's motive in carrying out the offences was not then known. These are matters that have only been appreciated, including by the appellant himself, through the psychological therapy he has received from Ms Commons. Senior counsel for the appellant summarised the position in this way: by virtue of the fresh expert evidence, it is now apparent that the motive was need not greed, and specifically a need borne of an undiagnosed medical condition.
Secondly, senior counsel submitted that the evidence provided information including the 'continued rehabilitation, the continued attendance before a psychologist, the great advances that had been made, the complete change in behaviour – if all of that had been put before the magistrate, it may have produced a different result'.[27] Those advances included the offer of employment embodied in the letter from Citic Pacific Mining which senior counsel characterised as a great outcome given the appellant's conviction. Senior counsel added that the appellant's wife is expecting their second child and has experienced difficulties with her pregnancy.
[27] ts, 30 November 2022, 22.
It was submitted on behalf of the appellant that although these matters transpired after the sentencing, they are relevant to whether the disposition results in a miscarriage of justice because if this information had been before the magistrate a different decision would have been made.
The relevant principles are set out in various cases, including Wheeler v R[No 2][2010] WASCA 105, Colwell v The State of Western Australia [No 2] [2012] WASCA 196, Gray‑Herewini v Lee [2013] WASC 200 and Alonte v Beswick [2013] WASCA 207. There are also a number of relevant statutory provisions. The principles may be summarised as follows:
(a)Generally, an appeal court in any criminal appeal must decide the appeal on the evidence and material that were before the lower court.[28]
[28] Criminal Appeals Act 2004 (WA) s 39.
(b)That general approach is subject to the exercise of the appeal court's discretion to admit other evidence for the purposes of dealing with the appeal.[29]
(c)There is a difference between 'fresh' evidence and 'new' evidence. Fresh evidence is evidence which either did not exist at the time of the trial, or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the trial, or which could with reasonable diligence, then have been discovered.
(d)The court's powers on appeal also include a discretion to have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal is heard.[30]
(e)At least in relation to an appeal from a superior court, the court may allow the appeal if it is of the opinion that a different sentence should have been imposed.[31]
(f)In my respectful view, the position in an appeal from a magistrate under s 8(1)(b) of the Criminal Appeals Act is determined more broadly by an assessment of whether there has been a miscarriage of justice. In the context of an appeal against conviction by a jury, the Court of Appeal in Yu v Western Australia explained that the unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[32] However, there is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available or with reasonable diligence could have been available unless the new evidence establishes that the accused should not have been convicted. It seems to me that the same position ought to apply in the assessment of whether there has been a miscarriage of justice under s 8(1)(b) of the Criminal Appeals Act in the context of this appeal. That is, the appeal should be upheld if fresh evidence gives rise to a significant possibility that a different sentence would have been imposed, whereas an appeal should only be upheld on the basis of new evidence if the court concludes that a different sentence should have been imposed.
(g)In the exercise of the court's discretion under s 40(1)(e), evidence will not usually be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time.
(h)In exercising the court's power under s 40(1)(e) the court takes into account the reasons why the additional material was not adduced before the primary court, the circumstances, if any, in which the additional material came to light, and its probative value.
(i)Events occurring after the imposition of the sentence which bring light to the implications of the offender's conditions of health existing at the time of the sentencing are relevant and admissible.
(j)Whilst s 14(5) is expressed in different terms to s 40(1)(e), it does not follow that evidence of matters that have occurred since a sentence was imposed will necessarily be admissible on an appeal against that sentence. The power contained in s 14(5) is discretionary. That discretion must be guided by the fact that the proceedings are appellate in nature and not simply an exercise in resentencing.
(k)There are good policy reasons why an appellate court should not intervene upon the basis of events that have occurred since a sentence was imposed. It is not the function of the courts to fulfil a continuing supervisory role over the effect of imprisonment upon an individual.
[29] Criminal Appeals Act 2004 (WA) s 40(1)(e).
[30] Criminal Appeals Act 2004 (WA) s 14(5).
[31] Criminal Appeals Act 2004 (WA) s 31(4).
[32] Yu v Western Australia [2019] WASCA 197 [104] ‑ [107].
The respondent accepted that the evidence in the Commons report regarding the appellant's drug use and consequential motive for offending could be said to be evidence of events occurring after the sentencing which shed light on the appellant's offending. In my view, I agree that these are matters which bring light to the implications of the offender's health conditions existing at the time of the sentencing and are therefore relevant and admissible. The evidence was not and could not have been reasonably available to the appellant at the time of sentencing and accordingly in my view it is fresh evidence.
The remaining evidence regarding the appellant's rehabilitation, including the offer of employment is not evidence that should be admitted on the principles set out above. The proposed evidence is insufficient to exclude it from the operation of the principles and policy referred to in [52(j)] and [52(k)] above. Therefore, the only further evidence to which I shall have regard is the evidence in the Commons report to which I have referred at [49].
In my view, fresh evidence of a mental health condition that alters the proper understanding of the appellant's motive for offending is significant. In my respectful view, such evidence should have led to a different sentence. That is particularly so when such evidence is combined, as it ought to be, with the observation of the Chief Magistrate set out at [12] above that the appellant's undiagnosed mental health condition rendered him an inappropriate vehicle for deterrence. At the very least, there is a significant possibility that it would have led to a different sentence.
In the circumstances, I have concluded that although there was no error in the Chief Magistrate's sentencing, the fresh evidence of the Commons report means that there has been a miscarriage of justice. Accordingly, I will grant leave, uphold the appeal on that ground, and set aside the sentence of 12 months' immediate imprisonment.
It then falls to me to resentence the appellant. In that context s 40(1)(e) permits me to take account of the additional matters I have referred to above that I did not consider ought to be admitted for the purpose of establishing a miscarriage of justice. In all the circumstances I have referred to above, including the seriousness of the offence, the mitigating factors, the whole of the Commons report and generally the personal circumstances of the appellant, I consider that the appropriate sentence is 12 months' imprisonment. However, giving reconsideration to all those factors in the context of the court's sentencing discretion under s 76 of the Sentencing Act, I would impose a conditional suspension of sentence under Pt 12 of the Sentencing Act.
Taking account of the 9 days spent in custody by the appellant, I will reduce the sentence commensurately, and accordingly I will order that the appellant is sentenced to 11 months and 21 days' imprisonment, conditionally suspended for 12 months. I shall also order a programme requirement under s 84A of the Sentencing Act, to address the appellant's substance misuse and any outstanding treatment needs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
24 JANUARY 2023
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