BHANGU -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 57 | Case summary

Court of Appeal (WA)|2024-05-21|Before: Buss P

At the hearing of this application for leave to appeal, we ordered that leave to appeal be refused and dismissed the appeal. These are our reasons for making those orders.
On 2 February 2024, the appellant was sentenced to a total effective sentence of 4 years 5 months' immediate imprisonment. The sentence was imposed in respect of five counts of gaining a benefit by fraud, contrary to s 409(1)(c) of the Criminal Code (WA). The appellant pleaded guilty to those offences a day before his trial was to commence. The offending involved the appellant making fraudulent insurance claims to three insurance companies in respect of damage to prime movers and trailers. The offending netted the appellant a total of $419,961.51. The offending occurred over a 12-month period from 16 December 2018 to 17 December 2019.
The appellant now seeks leave to appeal against his sentence on two grounds:
1. The sentencing judge erred in failing to give any mitigatory weight to the fact that the appellant had deposited into his solicitor's trust account all the moneys defrauded by him to make it readily available to the victims of his offending.
2. There has been a substantial miscarriage of justice such that a different and lesser sentence should have been imposed by the sentencing judge.
The second of these grounds recognises that, even if satisfied that the sentencing judge erred as alleged in ground 1, this court can only allow the appeal under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) if it is of the opinion that a different sentence should have been imposed. The question of whether this court should impose a different sentence on resentencing only arises in the circumstances of the present case if material error by the sentencing judge is established. Therefore ground 2 is not an independent ground of appeal but rather depends on ground 1 being established.

To your credit, you have put money in counsel's trust account to repay what you have defrauded. Whilst I will make orders about this, you have had the benefit of this money, interest-free, until this day. It has no doubt enabled you to continue to conduct and/or grow your business, and thereby to support your family in a way they may not otherwise have enjoyed. (emphasis added)

The sentencing judge referred to the appellant's prior good character and his family situation.[5] Her Honour also referred to the appellant's history of mental health conditions, although she was not satisfied that there was a causal link between those conditions and the appellant's offending.[6] The sentencing judge accepted that the appellant was remorseful, although that remorse did not manifest itself into acceptance of responsibility until shortly prior to the commencement of trial.[7] Her Honour allowed a 5% discount under s 9AA of the Sentencing Act 1995 (WA) in respect of the late plea of guilty.[8] The sentencing judge then observed:[9]

I have already noted you have taken steps to ensure that moneys are available to repay the three insurance companies what you took from them, or what you defrauded from them. This is to your credit.

However, as I also said, you've had the benefit of those moneys for three or four years. It is also clear that you engaged in this conduct for financial reward. I accept, however, that other than this offending, you have been a hardworking member of the community who has been willing to give freely of his time to community organisations and religious groups, and you have endeavoured to be a good family man.

(emphasis added)

The sentencing judge concluded that the seriousness of the offending meant that the only appropriate sentences were terms of immediate imprisonment. The sentencing judge then said:[10]

The matters in mitigation will be reflected in the length of the term.

The sentencing judge imposed a total effective sentence of 4 years 5 months' immediate imprisonment. The sentences were not backdated as the appellant had spent no time in custody. The appellant was made eligible for parole. The sentencing judge made orders for restitution requiring the appellant to repay the defrauded amounts to the relevant insurance companies.[11]
In support of ground 1, the appellant submits that the sentencing judge 'failed to give sufficient credit, or at all, to his restitution of funds defrauded by him in mitigation of sentence'.[12] The appellant submits that the sentencing judge's reference to the payment into the solicitor's trust account being to the appellant's 'credit' was no more than an acknowledgement that the appellant 'had made' restitution. However, the appellant says that the sentencing judge gave the payment 'no mitigatory effect', which the appellant says was a sentencing error.[13]
Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. Section 6(2) requires that the seriousness of the offence be determined by taking into account, among other things, 'any mitigating factors'. Section 8(1) defines mitigating factors to be factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on the offender, the court must state the fact in open court.
The sentencing judge's references to the appellant's payment of money into his solicitor's trust account being to the appellant's 'credit' recognised that payment as a factor which reduced his culpability or decreased the extent to which he should be punished. The sentencing judge's statement that the matters in mitigation will be reflected in the length of the term indicated that she was reducing the sentences she would otherwise have imposed because of those mitigating factors. In the context of the sentencing remarks as a whole, where the payment was discussed in the course of dealing with other mitigating factors, her Honour's reference to 'the mitigating factors' in this passage comprehended the payment. There is no merit in ground 1 so far as it contends that the trial judge failed to have regard to the payment as a mitigating factor.
Nor is there any merit in ground 1 to the extent that it contends that the sentencing judge failed to give sufficient weight to the payment as a mitigating factor. It is well established that failure to give adequate weight to a relevant sentencing consideration will only give rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court. This is a high threshold to overcome.[14] There is no proper basis in the present case for contending that the sentencing judge failed to exercise the court's sentencing discretion.
For the above reasons, ground 1 has no reasonable prospect of succeeding. Ground 2, which depends on ground 1 being established, also has no reasonable prospect of succeeding. At the hearing of the application for leave to appeal, we therefore made the following orders:
1. Leave to appeal is refused on both grounds of appeal.
2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See Wellstead v The State of Western Australia [2019] WASCA 130 [87] - [90].

[12] Appellant's written submissions, par 9.

[13] Appellant's written submissions, par 16.

[14] See, for example, the recent decision in SYO v The State of Western Australia [2024] WASCA 31 [121] - [124].

BHANGU -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 57 (21 May 2024)

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