Beck v R

Court of Criminal Appeal (NSW)|2024-10-14|Before: Dhanji J, Faulkner J

JUDGMENT

BASTEN AJA: The applicant, Andrew Beck, seeks leave to appeal from two sentences imposed on him in the District Court on 15 March 2024. The specific grounds on which the applicant challenged the length of the sentences must be rejected. However, for reasons other than those identified by the applicant (or by the Commonwealth Director) the sentencing exercise miscarried and the applicant must be resentenced.

The sentences

The judge summarised the detail of the offending, which had been the subject of a statement of agreed facts. She also noted that the applicant had a prior history of dishonestly obtaining financial advantages and was subject to an intensive correction order at the time of the offending the subject of the sentencing proceedings.
Relevantly to the grounds relied upon by the applicant, the sentencing judge gave careful attention to the personal circumstances and history of the applicant, to the details of which it will be appropriate to return in addressing the grounds of appeal.
The judge imposed an aggregate sentence for the two federal offences and indicated the individual sentences which would otherwise have been imposed. The aggregate sentence was imprisonment for 22 months, divided into a custodial period of 14 months, followed by a recognizance release order with effect for a further eight months. This structure complied with s 19AC of the Crimes Act 1914 (Cth), which requires the fixing of a recognizance release order rather than a non-parole period when imposing a sentence or sentences not exceeding 3 years. That provision relates only to federal sentences and takes no account of any contemporaneous State sentence.
The conduct the subject of sequence 2, involved a single episode of offending over a 30-minute period, affecting two suppliers. No financial loss was suffered because the offending was quickly discovered. However, the offending involved, as the sentencing judge properly found, a serious breach of trust, and was "premeditated, calculated and planned". The sentencing judge held that the course of deception fell just below the mid-range of objective seriousness for that offence; she indicated that she would have imposed an individual sentence of imprisonment for 18 months in relation to that offence.
Sequence 3 was described as a "rolled-up offence" in that it involved the obtaining of personal financial information from eight separate victims, through a course of conduct that occurred over a period of almost two months and involved a breach of the privacy of the individual victims; it was deliberate and repetitive and also premeditated and planned. However, being charged as a single rolled-up offence, it was subject to a lower maximum penalty, namely imprisonment for five years. The judge considered that the course of deception fell within the mid-range of objective seriousness. The individual sentence which would have been imposed was indicated as also being imprisonment for 18 months.
As to the State offence, the judge noted that there were 14 transactions involving 12 victims; the amount defrauded totalled some $66,600; the offending was "blatant, frequent and systematic", and occurred over a period of two months and thirteen days. She accepted that the offending "lacked sophistication" as the offender used his own name and address and phone details when facilitating the purchase orders. It was clearly a deliberate and planned course of conduct. The judge imposed a sentence of two years and six months with a non-parole period of 15 months and a balance of term of 15 months.

Structure of sentences

As noted above the aggregate sentence covered the federal offences, but not the State offence. The limited basis upon which the aggregate sentence was available should be explained. Part 1B of the Crimes Act 1914 (Cth), which deals with sentencing for federal offences, has no provision for aggregate sentences, but State law does in s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) providing that a court may sentence an offender by way of an aggregate sentence of imprisonment when sentencing for more than one offence. The availability of that power in relation to federal offences depends on the State law being picked up and applied by s 68 of the Judiciary Act 1903 (Cth). Although s 68 does not state that its operation is subject to another law of the Commonwealth otherwise providing, that qualification has been accepted as implicit. [1]
A court is not authorised to fix a single non-parole period, or make a single recognizance release order, in respect of both federal and state offences: Crimes Act 1914, s 19AJ. Further, although the express provisions with respect to non-parole periods and recognizance release orders require the court to make such an order with respect to separate offences, [2] those provisions are not inconsistent with the power to impose an aggregate sentence. As explained in Putland v The Queen, s 4K of the Crimes Act 1914, expressly permits the joining of different counts in a summons and aggregate sentencing on conviction, but only in relation to summary offences. No similar provision was made with respect to indictable offences because such powers were known to exist in state laws in relation to such offences. Section 4K was therefore consistent with the view that the joining of different counts in an indictment and aggregate sentencing on conviction under an indictment were not inconsistent with other provisions of the Crimes Act 1914. [3] That conclusion was accepted and applied to aggregate sentences by this Court in Director of Public Prosecutions (Cth) v Beattie. [4]
Accordingly, it was appropriate for the sentencing judge to impose an aggregate sentence for the two federal offences and to specify a recognizance release order with respect to those sentences, which did not exceed three years imprisonment.
Because the conduct identified in sequence 3 was preliminary to the actual obtaining of financial benefits by deception, which was the subject of the State offence, it was necessary for the judge to ensure that the applicant was not punished twice for aspects of the same conduct. That difficulty was avoided by the imposition of a sentence of 30 months with respect to the State offence, which carried a maximum penalty of ten years' imprisonment.
The sentence was structured so that the aggregate federal sentence commenced on 16 December 2023, with the period in custody (14 months) expiring on 15 February 2025, at which point the applicant was to be released on recognizance. However, the State sentence was fixed to commence on 15 March 2024, with the 15-month non-parole period expiring on 14 June 2025, that is some four months after the applicant was ordered to be released on recognizance. (Release under the State sentence was not conditional on the exercise of the discretionary power of the State Parole Authority, but mandated by the Crimes (Administration of Sentences) Act 1999 (NSW), s 158.)
While on one view the effect of the recognizance release order was that, at its commencement, the applicant would no longer be subject to federal custody, he would not be at large in the community, which is both the requirement and the purpose of the release order. That problem could arise in circumstances where a later federal sentence is imposed, a matter dealt with in s 19AC(2). However, that provision does not address a problem such as the present, where the later sentence is for a State offence. Indeed, as s 19AJ confirms, the court cannot make a recognizance release order in respect of a State sentence.
The problem in the present case was compounded when the sentences were entered on the Court's records: the State sentence was subject to a direction that the offender be released on recognizance on 15 February 2025, which was inconsistent with the period of mandatory custody under the State sentence.
Section 20(1)(b) of the Crimes Act 1914 provides for the conditional release of offenders after conviction. The terms of that provision are not consistent with the offender remaining in custody under another sentence. Both sentences, it may be noted, were imposed in the exercise of federal jurisdiction. [5] It follows that, at least as a practical matter, if not to avoid inconsistent orders, the commencement date of the State sentence should have preceded the commencement of the federal sentence by at least one month, which was not possible where the backdating of the federal offence absorbed the whole of the presentence custody of the applicant.
In fixing the commencement dates of the federal sentence, the Crimes Act 1914 provides: 19 Cumulative, partly cumulative or concurrent sentences … (3) Where: (a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each federal sentence commences but so that: (c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (d) if a non-parole period applies in respect of any State or Territory sentences - the first federal sentence to commence after the end of that non - parole period commences immediately after the end of the period. (4) For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.
The power to backdate a federal sentence is provided by s 16E of the Crimes Act 1914, which picks up State law in that respect. [6] As explained in Director Public Prosecutions (Cth) v Swingler, [7] federal sentences can be ordered to commence at any time in the future, provided there is no gap or hiatus between the expiration of one sentence, and the commencement of another. [8]
The structure of the sentence imposed by the sentencing judge was not available. Accordingly, it will be necessary to resentence the applicant. Before addressing that issue, it is necessary to address the grounds on which the applicant contended that the sentences imposed were excessive.

Grounds of appeal

The applicant's notice of appeal contained a single ground in the following terms: "The sentencing judge failed to properly consider evidence about my mental condition."
By an affidavit dated 4 September 2024 the applicant set out what appeared to be six further grounds, namely: "1 That my solicitor [did] not provide the report from Dr Dulip Pri Wettasinghe, dated 21 January 2024 from Ramsay [Health] Northside to the Court. Labelled E. 2 While on remand my mental health couldn't be treated while in custody and was never mentioned in Court. 3 While I have been in custody I have not been medicated and have also been advised by Justice Health that I can't be medicated while in custody. 4 I have been on 2 RITS regarding my mental health and been moved to 4 different Corrective centre[s]. 5 On my 2nd day of custody I experienced a murder that took place in the cell next to me for 3 hours. After I knocked up and was told they were busy. I also had to walk past the cell and seen the body and all the blood over the cell. No support was offered. Even when asked for. 6 No comparable sentences were given to the Court even one I've asked and given to my solicitor."
Counsel for the Director summarised these issues in three points, a summary accepted by the applicant in the course of his oral submissions: "1 The sentencing judge failed to properly consider evidence of the applicant's mental health conditions; 2 The applicant's legal representatives failed to tender a report by the applicant's treating psychiatrist, failed to inform the sentencing court that he had not received treatment for his mental health when remanded in custody and failed to rely upon comparative sentences, thereby resulting in a miscarriage of justice; 3 The applicant is serving his sentence more onerously than anticipated because he is unable to receive his medication, a factor which was unknown to the sentencing judge at the time of sentencing him."
The applicant's oral submissions emphasised the failure of his legal representative to tender a copy of a report by Dr Wettasinghe dated 21 January 2024. However, much of that report detailed matters of history which were otherwise before the Court. One matter which was seen by the applicant as significant was a note of his medications, which included Vyvanse and Venlafaxine. In fact, the latter drug (an antidepressant) was identified in a report from Dr Matthew Hannon who had been the applicant's treating psychiatrist in May 2023 and who had been his consultant whilst at Ramsay Clinic Northside in July/August 2023. Dr Hannon's report was before the sentencing judge. The change noted by Dr Wettasinghe was from one drug which he had been receiving for ADHD (Concerta) to Vyvanse.
In the course of oral submissions, the applicant stated that Concerta had been a drug he had taken for his ADHD when he was younger and that Vyvanse was the currently appropriate medication. However, it was a schedule 8 drug under the Poisons Act 1966 (NSW) and was not available in a low security institution because the medical facilities would be unavailable. Accordingly, he was unable to maintain his medications whilst in custody if he wished to transfer to a low security institution.
Apart from the information that he was prescribing Vyvanse, Dr Wettasinghe's report was almost entirely repetitive of other material before the Court. Importantly, a report of Dr Sathish Dayalan, forensic psychiatrist, dated 1 August 2023, was tendered as part of the defence case on sentence. Dr Dayalan provided a detailed account of his psychiatric history, his family history, his mental state at the time of the offences, his progress since the offences, a medical and addiction history and proffered a psychiatric opinion proposing an order under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which would permit him to be treated in the community. Dr Dayalan stated: "The impact of incarceration will be more onerous upon Mr Beck given his psychiatric conditions. His limited social skills and limited capacity to adapt to new environments will render him vulnerable to exploitation by antisocial inmates as evident from his previous experience in custody. The prospects of receiving treatment for ADHD and specialised intervention for autism are quite limited within a correctional environment."
The sentencing judge expressly referred to Dr Dayalan's report, including that paragraph. [9] She concluded: "I find that any period in the custodial environment will weigh more heavily on the offender by reason of his particular constellation of diagnosed mental conditions."
The judge also gave detailed consideration to his upbringing and family history, and accepted that he had "a biological and psychological vulnerability to depressive anxiety disorders directly related to the trauma, isolation, abandonment and other stressful and disadvantaged experiences he had as a child". [10]
The applicant also submitted that he had drawn his lawyer's attention to a useful precedent, which was not referred to at the sentencing hearing. While it appears that no comparative sentence material was provided to the Court, nor was material provided to this Court. It is clear that the most favourable material was to be found in the applicant's subjective circumstances, circumstances which were unique to him, were accepted by the sentencing judge and taken into account, and as to which comparable sentencing precedents would be of little or no assistance. Furthermore, there was no substance in the suggestion that the sentence was manifestly unreasonable, to be inferred from the submission that the applicant was seeking a non-custodial sentence.
There was insufficient support for any of the complaints raised by the applicant to warrant a grant of leave to appeal. Nevertheless, there should be a grant of leave to appeal in order to restructure the sentences.

Resentencing

To avoid the problem identified at [15]-[18] above, the applicant should be resentenced, but three markers fixed by the sentencing judge should be maintained. First, the sentence should commence on 16 December 2023; secondly, the applicant should be released subject to supervision on 14 June 2025, and thirdly, the period of supervised release should extend for 15 months.
That can be achieved by first fixing the commencement date for the State sentence which carried the longer sentence (30 months), namely as 16 December 2023. The period of 15 months' mandatory custody would thus expire on 15 March 2025.
The federal aggregate sentence should commence at a date when the recognizance release order can take effect according to its terms, and thus when the applicant will not be in mandatory custody serving another sentence. That can be achieved by backdating the federal sentence to a date no earlier than 16 January 2024. But to retain the sentencing judge's periods of mandatory custody and supervised release, the custodial period of 14 months should be reduced to 7 months, to allow 15 months release on recognizance. To maintain the release date of 14 June 2025, the federal sentence should commence 7 months before that date, namely on 15 November 2024. That will make the commencement date of the recognizance release order 14 June 2025.
Further, rather than have concurrent periods of supervised release under different authorities, the State sentence should be a fixed term of 15 months. While it may be that this sentence fails to reflect the seriousness of the State offending, the adjustment is necessary to permit coherent punishment under two legal systems, of a kind approved by the High Court in Mill v The Queen. [11]
Otherwise, the Court should not interfere with the sentencing judge's discretion in fixing the putative individual sentences for the two federal offences and the conditions of the recognizance release order. For transparency, the conditions will be restated, together with a further condition required by s 20(1A) that the applicant not travel interstate or overseas without the written permission of his probation officer.

Orders

Accordingly, I propose the following orders: 1. Set aside the sentences imposed in the District Court 15 March 2024. 2. With respect to the State offence (sequence 7), impose a sentence of 15 months' imprisonment, being a fixed term to commence on 16 December 2023 and expire on 15 March 2025. 3. With respect to the federal offences (sequences 2 and 3), 1. impose an aggregate sentence of 22 months, to commence on 15 November 2024, and expire on 14 September 2026, and 2. direct, pursuant to s 20(1)(b) of the Crimes Act 1914, that the offender be released on 14 June 2025 upon him giving security in the sum of $1000 without surety, on condition that he be of good behaviour for a period of 15 months until 14 September 2026, and comply with the following further conditions: 1. the offender be subject to the supervision of a probation officer, that is a Community Corrections Officer; 2. the offender report to the Community Corrections Office at CITY within 7 days of release from custody; 3. the offender obey all reasonable directions of the Community Corrections Officer; 4. the offender not travel interstate or overseas without the written permission of the probation officer.
DHANJI J: I agree with Basten AJA.
FAULKNER J: For the reasons given by his Honour, I agree with Basten AJA.

Endnotes

Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 at [7] (Gleeson CJ); [41] (Gummow and Heydon JJ, Callinan J agreeing).
Crimes Act 1914, ss 19AB, 19AC.
Putland at [23] (Gleeson CJ), [53] (Gummow and Heydon JJ).
[2017] NSWCCA 301; 270 A Crim R 556 at [145]-[146] (Price J, Walton J and I agreeing); affirmed in Kannis v R [2020] NSWCCA 79 at [10] (Johnson J, N Adams and Ierace JJ agreeing).
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [67] (Bell, Gageler, Keane, Nettle, and Gordon JJ).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(2).
[2017] VSCA 305; 269 A Crim R 526 at [77] (Ferguson CJ, Maxwell P and Weinberg JA).
See also Mercanti v The Queen [2011] WASCA 120; 249 FLR 223 (Hall J, McLure P and Buss JA agreeing).
Sentencing judgment, p 22.3.
Ibid.
(1988) 166 CLR 59 at 67; [1988] HCA 70. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2024

Poisons Act 1966(NSW)

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