Brown v R, R v Brown

Brown v R, R v Brown - [2010] NSWCCA 73 - NSWCCA 2010 case summary — Zoe

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The arson offence 13 The arson offence arose from discussions between two of the Lupica brothers and the respondent about their financial situation in which a discussion took place about the benefits of setting fire to the premises in Jean Street, Rydalmere. According to the respondent, Anthony Lupica initiated the discussions and he tested various explosive devices in front of the respondent in the weeks leading up to the fire. 14 During May and June 2007, Anthony Lupica arranged for parts of the business to be moved from the Rydalmere address to the newly leased property in Parramatta. Older machinery and stock were left in the Rydalmere premises to be destroyed by the fire. 15 On 19 June a member of the Lupica family was at the Rydalmere premises dismantling wooden partitions and piling them up within the premises rather than placing them in a skip. 16 On 20 June the respondent hired a motor vehicle using his credit card and bonus points. He then travelled with Anthony Lupica to a service station where Lupica filled three 20-litre containers with petrol. They then travelled to the premises in Parramatta where Lupica attempted to disguise the vehicle and replaced the registration plates with those that he had previously stolen. 17 Lupica then travelled in the hired vehicle with the containers of petrol to Rydalmere. He left his mobile phone with the respondent so that he could use it to make calls in the Parramatta area and thus create an alibi for Lupica. Lupica set the fire in the Rydalmere premises and then returned to Parramatta. He and the respondent then replaced the registration plates and used air fresheners to remove any petrol odour from the vehicle. They then drove the hire car to Lupica's premises where they parked it. The respondent then drove the two of them in Lupica's vehicle to Rydalmere fire station to make observations. They then drove to the Rydalmere premises to check on the progress of the fire. The vehicle driving near the premises without headlights illuminated was captured on the CCTV of neighbouring premises. They then returned to Parramatta in the early hours of the morning. Later that morning they collected the hire vehicle. 18 The fire in the Rydalmere premises was observed at about 1.10am on 21 June and reported to the fire brigade. It was extinguished at about 2.50am. The premises were completely destroyed with severe structural damage but the efforts of the fire fighters were able to contain it from spreading to adjoining properties. Investigators formed the opinion that the fire was deliberately lit. 19 As a result of the fire Anthony Lupica made an insurance claim on behalf of Charsam for nearly $2 million. 20 On 8 August 2007 police interviewed the respondent. He denied any knowledge of the fire and gave an account consistent with the alibi that had been established for Anthony Lupica. Police spoke to him again on 23 January 2008 and the respondent participated in an induced statement in which he disclosed the fraud by Charsam and his involvement in the fire. He also was prepared to engage in conversations with the Lupicas while wearing a listening device obtaining what police described as "significant admissions". 21 On 11 October 2007 there was an anonymous call to Crime Stoppers in which detailed information was given as to the involvement of the respondent and Anthony Lupica in the arson. The caller was later identified as a friend of Ms Roberts, a former partner of the respondent. On 8 November Ms Roberts entered into a lengthy induced statement setting out her detailed knowledge of the circumstances surrounding the fire at the Rydalmere premises. This statement led to further police investigations that supported the reliability of her account. Ms Roberts also attended meetings with the respondent during which police lawfully recorded their conversations.

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The Form 1 matters 22 The respondent's company imported a brand of outdoor sinks intending to become a distributor. However, as the respondent's company did not reach the projected sales, the exporting company entered into distribution agreements with Kmart stores. From late 2006 the respondent and Ms Roberts commenced taking the sinks to Kmart on the pretence that they were purchased from that store and seeking a refund by way of credit. The respondent was charged with a number of these fraudulent transactions and they appear on the Form 1. 23 The respondent owned a box trailer that was insured for $10,000. The respondent loaded it with some of the stock owned by his company. He took the trailer and stock to the Rydalmere premises knowing of the plan to set them on fire and parked the trailer on the site intending that it would be destroyed in the fire. He had previously attempted to sell the trailer but he rejected the largest offer of $900. After the fire the respondent made an insurance claim that would have resulted in a payout of about $5,000. The claim progressed to the point of settlement until police advised the insurer of the arson offence. This offence is included on the Form 1. 24 An acquaintance of the respondent operated a company that sold garden products. The respondent would assist in displaying and selling some of the company's stock. In 2007 the respondent was supplied with some stock for him to display and sell. The respondent, or Ms Roberts at his request, took some of the stock to various Bunnings stores and pretended that it had been purchased from the store and was being returned. The respondent was charged with a number of these frauds and they appear on the Form 1. 25 The respondent's offences, in particular the conspiracy and arson offence have resulted in very substantial losses to PayNow and different insurance companies. Collins, the owner of the Rydalmere premises, lost about $10,000 above what he recovered by way of compensation from insurance. Subjective matters 26 The respondent was born on 22 January 1977 and hence was aged 32 years at the date of sentence. He has no criminal record of any relevance. His upbringing was uneventful. His parents separated about ten years ago and since that time he has had little contact with his father but had continued support of his mother. He was in a stable relationship and expecting a child in early 2009. He has tertiary education and obtained a Bachelor of Commerce in 1999. He was employed chiefly in finance companies before entering into the aviation industry. He was self-employed in this industry from 2002 to 2007. He was employed at the time of sentencing with a security glass company. 27 There was a pre sentence report dated 2 February 2009 before the Judge. It records that the respondent had been suffering depression for a period of about 3 years and sought psychiatric treatment in 2008. He was placed under medication. He did not consume alcohol or illicit drugs. He stated that his earlier marriage broke down in July 2007 causing him financial and emotional difficulties. At about this time his aviation business collapsed. In 2007 he moved in to live with his mother to conserve money and sought employment with Charsam because he had no income. 28 Under the heading "Attitude to the Offences" the following appeared:

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Application for leave to appeal 37 The substance of the respondent's appeal is that the Judge failed to give sufficient weight to the respondent's future assistance which, it was submitted, ought to have resulted in a sentence other than full-time custody. This Court was asked to read for itself the letter of comfort, Exhibit B, and have due regard to the fact that the respondent would be required to give evidence at committal proceedings as well as at a criminal trial in relation to both the charge of fraud brought against his alleged co-offenders and the charge of arson against Anthony Lupica. In effect the complaint was that the Judge failed to find that the assistance given and proffered by the respondent was "exceptional". 38 The Judge determined that the respondent should receive a combined discount of 50 per cent: 20 per cent for the early plea and 30 per cent for assistance divided equally between past and future assistance. He made no finding as to the quality of the assistance. However, having regard to the decisions of this Court as to the appropriate discount for assistance, the discount was at a high level although not at the very highest. A discount for assistance, in association with a discount for a plea of guilty, is generally between 20 and 50 per cent. Although this Court has accepted that the combined discount may exceed 50 per cent, such a discount should be reserved for exceptional cases: SZ v R [2007] NSWCCA 19 at [53]. Unless there is evidence that the offender will serve his or her sentence in more onerous conditions as a result of giving assistance, the combined discount should not normally exceed 40 per cent: R v Sukkar [2006] NSWCCA 92 at [5]. None of these principles was referred to by his Honour. 39 In the present case there was no evidence before the Judge concerning the effect upon the respondent of having given assistance and, because he had been on bail, there was no material as to what form the respondent's custody would take. The court no longer assumes that an offender who has given assistance will spend any custodial period in more onerous conditions: R v Mostyn [2004] NSWCCA 304. 40 In SZ with the concurrence of Simpson J, I stated:

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I have read exhibit B and I will not read it out loud. I take note of the contents because I am going to make a finding that his assistance to the police should be taken into account when sentencing. 43 Nowhere did the Judge explain why, in the lack of any evidence as to the deleterious effects of giving assistance upon the respondent, a discount of 50 per cent was appropriate. There is no indication that he appreciated that to reduce the non-parole period from the statutory relationship after having given a 50 per cent discount was to run the risk of the non-parole period falling foul of the requirement in s 23(3) of the Crimes (Sentencing Procedure) Act that "a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence". 44 Counsel for the respondent before this Court criticised the Judge for failing to refer to the provisions of s 23. There is no requirement for his Honour to refer to the section but it seems to me that, if there is to be any criticism of the Judge for apparently failing to have sufficient regard to the section, it is because the sentence imposed on its face breaches s 23(3) and not because a consideration of that section would have resulted in a non-custodial sentence. 45 As I have noted, the respondent complains that the Judge did not find that the respondent's assistance was exceptional thus justifying a greater discount than he was awarded. In light of the fact that his Honour gave the respondent 50 per cent in the absence of any evidence that the respondent's custodial situation would be more onerous, that argument cannot be sustained on the material before the Judge. On the face of it the discount was excessive. To meet this situation the respondent sought to rely upon two affidavits: one from his current partner and one from himself. It should be noted that the respondent did not give evidence before the Judge and called no witnesses other than the officer-in-charge. 46 The affidavit by Ms McGarrigal, the respondent's current partner, was described as "new evidence". Counsel sought to justify its reception on the basis that, without it, there would be a miscarriage of justice. There was no affidavit from the counsel or solicitor who represented the respondent at the sentencing hearing to explain why the deponent was not called before his Honour. There is nothing in the material to suggest that in any way they were incompetent in the manner in which they represented the respondent. Defence counsel at the sentencing hearing was highly experienced in the criminal law and produced for the Judge's assistance 13 pages of written submissions that addressed every aspect of the respondent's case including his assistance and s 23. 47 This is a court of error and it will not normally receive evidence that could, and should, have been called before the sentencing judge: see R v Fordham (1997) 98 A Crim R 359. Such evidence will be received where the interests of justice require it: R v Many (1990) 51 A Crim R 54. But the interests of justice are not made out simply because evidence that was available was not called at the sentence hearing and no explanation is given for that decision. 48 It was argued that the evidence should be received because the Crown was under an obligation to provide information to the sentencing court as to the assistance given by an offender and its consequences and, therefore, should have called Ms McGarrigal. This argument has no merit. In R v Cartwright (1989) 17 NSWLR 243 Hunt CJ at CL and Badgery-Parker J held that there was an onus upon the Crown to establish the extent and effectiveness of any assistance but the Crown's duty goes no further than this. There was also a complaint that the Crown had sought unjustifiably to diminish the significance of the assistance given. But this is also without merit. 49 I have read the affidavit of Ms McGarrigal in order to determine whether it should be received, but I do not believe there is any basis for this Court to take the evidence into account. It concerns the circumstances surrounding the respondent giving assistance and the consequences to her and the respondent. It is, in any event, of little, if any, weight and would not in my opinion have had any effect upon the sentence imposed on the respondent. 50 The affidavit of the respondent is in a different position insofar as it refers to the situation since he was sentenced. The Judge made no finding at all about the respondent's future custodial situation. He could not do so because there was no evidence before him relevant to that issue. Defence counsel submitted that the respondent "might well be expected to suffer harsher custodial conditions as a consequence of his assistance and undertaking to assist". However he had no basis for that submission. 51 This Court will receive evidence of events that occur after sentence in very exceptional cases. The fact that the respondent's custodial situation has changed since he was sentenced is not necessarily sufficiently exceptional: Tyler v R [2007] NSWCCA 247 at [130]. 52 One of the situations in which such evidence will be received is where it concerns the physical or mental health of the offender in circumstances where the condition existed at the time of sentence but its existence was unknown or not fully appreciated at the time: R v Ashton [2002] NSWCCA 498; 137 A Crim R 73. By analogy, in the present case there was the potential for the respondent's custodial situation to be affected by the giving of assistance but there was no way of knowing whether it would be at the date of sentence because he was not in custody. Yet it is to be assumed that his custodial situation would not be harsher as a result of his assistance. Therefore, in my opinion it is open to this Court to receive evidence of the custodial situation of the respondent after his imprisonment where it relates to the assistance he proffered. 53 I am not to be taken as suggesting that this Court will generally allow evidence of a change in an offender's custodial situation after sentence simply because for some reason or other the offender is placed on protection. This Court does not review administrative arrangements within the prison system: Goss v R [2009] NSWCCA 190. 54 However, I do not believe that the evidence is of any significance. I accept that the respondent is fearful that his assistance may become known and open him to threats or violence, but that has not occurred. He is housed in protection but has association with other protected prisoners. He is able to undertake courses even though he has not done so because he is scared of threats or violence. He states that had he not given assistance he would have been placed in a minimum security prison. Of course had he not given assistance he would not have received a discount of 50 per cent of his sentence. 55 The assistance given by the respondent was of a high order, but whether it was exceptional or not is a matter upon which minds might differ. There was no apparent danger to the respondent in what he did. There is no real suggestion that the Lupicas were violent or posed a substantial threat to the respondent at the time he was obtaining admissions from them through his recorded conversations. Nor is there any reason to suppose that the respondent or his partner is under any significant danger by reason of the assistance given. As I have indicated, a discount of 50 per cent is overly generous and the assistance could not have justified a penalty of less than full-time custody. 56 The application for leave to appeal should be refused.

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The reference to "Verrier" is a reference to Verrier v Director of Public Prosecutions [1967] 2 AC 195 a decision that concerned an offence of conspiracy to defraud by false pretences. 59 In the present case the conspiracy charged was not an agreement to commit a particular substantive offence. It was an over-arching offence to cover the whole of the fraudulent conduct of the respondent and his co-offenders over the period charged in the offence, some four months. It involved the respondent and his co-conspirators creating false invoices and other documents to substantiate the deception made to PayNow as to the outstanding debts owed to Charsam. The respondent as the accountant provided a debtor's list to PayNow that he knew was false. He sent faxes listing 52 businesses purporting to be debtors to Charsam and was involved in making false documents to verify these debts. He engaged with the others in falsely verifying the debts by signing the forms sent by PayNow. He was prepared to use his own company as an alleged debtor and he verified the non-existing debt. 60 The respondent was to be punished for his involvement in the conspiracy and not just for the acts that he himself performed: Tyler and Chalmers v R [2007] NSWCCA 247; 178 A Crim R 247. The extent of his role was a significant factor to be taken into account in determining the appropriate penalty as was the amount of money involved: R v Koh [2001] NSWCCA 324. The respondent was a major participant in the fraud and it is highly likely that it could not have been carried out without his involvement as the company's accountant. It is of little significance that the company had already been acting fraudulently in maintaining two sets of accounts, as the fraud, in which the respondent was concerned, was a separate and independent act of deception. The respondent must have been aware of the extent of the fraud and the amount of money involved. It may have been the case that he was not to benefit directly from the fraud as his co-conspirators were, but the fraud was aimed at keeping the company afloat and, therefore, his employment with the firm. In any event the lack of direct benefit to the offender is not a matter of very great moment. The offence is principally concerned with its effects upon the victim. 61 The sentencing remarks inadequately dealt with an assessment of the objective seriousness of the respondent's offending. His Honour refers to the amount involved as "over a million dollars" and to the Crown's submission that the position of an accountant is a position of trust, at least so far as persons outside the company are concerned. Apart from indicating that the offences should be treated as having a maximum period of imprisonment for 5 years, there is no other consideration of the seriousness of the respondent's conduct. 62 The relevance of the maximum penalties for statutory offences was to give some guidance to the seriousness of the respondent's conduct and the appropriate penalty to be imposed for it. It was a serious error to fetter the sentencing discretion to the maximum penalty for a single offence committed in the course of the conspiracy, whatever offence was chosen. The conspiracy involved the commission of numerous criminal offences including offences contrary to s 300 as well as offences contrary to s 178BA. If the approach of the Judge were correct, the offender was placed in a better position by the fact that he had been party to a conspiracy than if he had committed the offences by himself. The result of this error was to grossly under-estimate the seriousness of the respondent's conduct and the appropriate penalty. 63 The only matters of mitigation to the objective seriousness of the offence were the respondent's depression and diabetes. His illnesses might go some way to explain why a person of no prior convictions so readily involved himself in such serious criminality with the Lupicas. But it is clear that the respondent was in need of money with the collapse of his aviation business. The significant relevance of the matters on the Form 1 was that they indicated dishonest conduct committed by the respondent independently from the Lupicas and both before and after he was employed by them. 64 In light of the nature of his criminality, its extent and the period of time over which it extended, there was in my opinion very little mitigation in the fact that his judgment might have been affected by his depression. This was not simply "inappropriate behaviour" as Dr Roberts described it: it was seriously criminal. The substantial significance of the respondent's illnesses was that with treatment he was unlikely to offend again and, therefore, personal deterrence had no role to play. In my opinion the sentence to be imposed had to have an element of general deterrence notwithstanding the respondent's depressive illness. The Crown's first ground of appeal is made out. The Judge's discretion miscarried in relation to the sentence imposed for the conspiracy offence and the sentence was manifestly inadequate. 65 The Crown's second ground of appeal concerns the weight that should have been given to the matters on the Form 1. It is obvious that the Judge paid them little regard, describing them as "petty fraud". However, at least one of the matters, the fraud in relation to the trailer, could not be so described. However, they pale into relative insignificance in light of the two offences for which he was to be sentenced. Having regard to the fact that the Judge's discretion miscarried in relation to the sentence for the conspiracy offence, it is unnecessary to determine this complaint. If the Court re-sentences the respondent for that offence, it will take into account the Form 1 matters. 66 The Crown's third ground of appeal is that the Judge erred in making the sentences for the arson and conspiracy offences concurrent. The Judge stated:

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I was urged by the Crown that these matters were separate and ought not to be made concurrent. In this particular circumstance I am persuaded by Mr King's overall argument that this is a man who has fallen on hard times from a high executive position and whilst this course of conduct ought strictly be separated, I am not inclined to make them consecutive but make the sentences concurrent. 67 This was clearly an erroneous exercise of his Honour's discretion. As the Judge recognised, the application of proper principle required that the sentences for the two offences be at least partly cumulative. It is unnecessary to state again the principles that inform the discretion to determine whether sentences are to be served concurrently or not. They have been stated frequently in this Court in recent times: see R v XX [2009] NSWCCA 115. The penalty for one offence charged against the respondent could not comprehend the criminality involved in the other offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. 68 In my respectful opinion it was unprincipled to make the sentences concurrent simply because his Honour found some sympathy for the respondent. In any event, many persons in the community fall on "hard times" and I find it difficult to understand why a person who falls from "a high executive position" and commits serious planned criminal conduct over a significant period of time using his skills to do so should be accorded such leniency. This ground is made out. 69 Ground 4 is a complaint about the discount awarded to the respondent. I have already expressed the view that, in the absence of any evidence that as a result of the assistance the respondent was going to spend his sentence in more onerous conditions than the general prison population, a discount of 50 per cent was unwarranted. I have also noted that the respondent's affidavit does not reveal that his conditions are more onerous to the extent of justifying a discount of more than 40 per cent. This ground is made out. 70 Ground 5 concerns the Judge's finding of special circumstances. I have noted that the only reason his Honour gave for finding special circumstances was that this was the respondent's first prison sentence. In my opinion that will not normally be, and was not in this case, a proper basis for finding special circumstances. In any event, the reduction of the non-parole period to 50 per cent of the discounted head sentence could not in my opinion result in a non-parole period that reflected the objective seriousness of the offence. If it is necessary for the Court to re-sentence the respondent, it will be necessary to reconsider the question of special circumstances and the appropriate non-parole period. 71 Ground 6 asserts that the sentences are manifestly inadequate. In my opinion the sentence for the conspiracy offence was manifestly inadequate to a considerable degree as a result of the patent errors made by the judge in determining that sentence. The total sentence imposed upon the respondent was also manifestly inadequate arising from the error in making the sentences concurrent.

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Decision 72 The respondent was charged as an accessory to the arson committed by Anthony Lupica. He was very fortunate not to be charged with the completed offence having regard to his conduct. But as an accessory his criminality was high given what he did to assist the principal. A starting sentence before discount of 4 years was very lenient indeed and probably inadequate. It was not a mitigating factor, as his Honour found, that no person was harmed. Had any person been injured that may have given rise to a separate offence. It was a very substantial fire that caused considerable damage and had the potential to spread to other buildings. The damage was contained only by the skill of the fire fighters. General deterrence was a very significant factor in sentencing for this offence. However, the Crown has not filed any ground of appeal against the starting sentence for that offence but complains generally of the discount awarded to the respondent for his assistance. 73 In my opinion the sentence that should have been imposed for the conspiracy offence and taking into account the Form 1 matters and before discount was 6 years imprisonment as the middle of the range. There were a number of aggravating factors. As I have indicated, there were numerous criminal acts committed the most serious of which would have carried a maximum penalty of 10 years if charged as a single offence: see s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999. The offence was planned and the loss occasioned was very substantial. However, unlike his co-conspirators there was no suggestion that the respondent was involved in the company's previous fraudulent conduct. He was not the prime mover although he had a significant role in the fraud as the firm's accountant. 74 In this appeal there were clear errors in the exercise of the sentencing judge's discretion and the sentence over-all was manifestly inadequate. The question arises as to what, if anything, should be done as a consequence. In light of s 68A of the Crimes (Appeal and Review) Act 2001, this Court can no longer take into account in the exercise of its discretion under s 5D of the Criminal Appeal Act the distress or anxiety suffered by a respondent to a Crown appeal arising from the fact that the respondent faces sentencing for a second time: see R v JW [2010] NSWCCA 49 per Spigelman CJ at [141]. 75 The finalisation of the present matter has been delayed awaiting the decision in JW. That is not the fault of the respondent because no point was taken as to the effect of s 68A or its Constitutional validity. However, a Court of five judges was constituted to determine issues arising from the enactment of s 68A and this appeal could not be determined until the decision of that Court was delivered. In the meantime this Court received an affidavit from the respondent as to the effect of the delay in resolving the present matter. He states that, as a result of the Crown appeal, he has been unable to progress through the prison system because of a change to his classification. He states that as a result he has not been given the benefit of day or weekend leave, work release, access to areas outside his compound, access to computer facilities or access to outside areas during visits. 76 I accept that the delay in determining the appeal has impacted adversely on the respondent but that would be significant if I considered that there should only be a slight increase in the sentence. In that case the detriment suffered by the respondent would have been a factor in considering whether in the exercise of its discretion the Court should refrain from intervening. But in my opinion the sentence imposed upon the respondent was so inadequate that there must be a substantial increase in the period he is to serve in custody notwithstanding the delay in the finalisation of the appeal and the matters contained in the respondent's affidavit. I also take into account that had it not been for the Crown appeal the applicant would have expected to be released to parole on 14 June next. 77 The sentence for the arson offence is to be 4 years less 40 per cent, half of which is for future assistance, and resulting in a term of 2 years 4 months. The sentence for the conspiracy offence is to be 6 years less 40 per cent, half of which is for future assistance, and resulting in a term of 3 years and 6 months. There will be special circumstances found only to ensure that the overall non-parole period is in the statutory relationship with the overall total term. 78 I propose the following orders:

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Cases Cited (13)