Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 142 of 2006, IND 163 of 2006

Criminal law and procedure - Appeal against sentence - Offender convicted of multiple counts of fraud - Whether discount for early plea of guilty adequate - Whether plea of guilty reflected remorse on part of offender - No error in exercise of discretion in setting discount

Chivers v The State of Western Australia [2005] WASCA 97

Hladin v Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

1 STEYTLER P: On 7 March 2006 the appellant was convicted, after pleading guilty in the District Court, on 54 counts of fraud. These counts were charged by two separate indictments. The first of these, indictment 142 of 2006, charged 46 counts of fraud committed between 4 November 2003 and 16 September 2005. The second, indictment 163 of 2006, charged the other eight counts of fraud. These were committed between 10 May 2005 and 10 June 2005. The 54 counts of fraud were committed against 28 victims. A total of $278,842.65 was defrauded from these victims. Four of the victims were over 60 years of age.

2 All of the offences were committed by the appellant in the course of operating his gardening and landscaping business. He is a qualified horticulturist and landscape designer. The appellant engaged in a number of different forms of fraud. The majority of his offences involved taking money from people who had engaged him to supply them with turf, trees or plants, or to do landscaping work, in circumstances in which the material was never supplied and in which the work was never performed or, in some cases, completed. Another form of fraud engaged in by the appellant was the obtaining of investment funds from his victims in relation to the purchase and on-selling of plants and trees in circumstances in which the money given to him was never invested by him or returned to the investors. Other forms of fraud included the purchase of plants, trees or materials from suppliers without paying for them and the engaging of subcontractors to perform work for which they were never paid.

3 This was not the first occasion upon which the appellant had engaged in fraudulent activities of this kind. On 3 April 2001 he had been convicted of 24 counts of fraud. He was sentenced to a total term of 6 years' imprisonment. Counts 1 to 40 on indictment 142 of 2006 were committed while the appellant was on parole in relation to those convictions.

4 On 21 January 2005 the appellant was charged with an unrelated offence of stealing. He was released on bail. Counts 23 to 46 on indictment 142 of 2006 were committed while he was on bail for the stealing offence. Also, counts 42 to 46 were committed while the appellant was on bail in respect of the offences the subject of indictment 163 of 2006, the appellant having been charged, and bailed, in mid-July 2005 in respect of those offences. All of the offences the subject of indictment 163 of 2006 were committed while the appellant was on bail for the January 2005 stealing offence.

5 On 26 May 2006 the appellant was sentenced to a total term of 6 years and 6 months' imprisonment in respect of the offences charged in indictments 142 of 2006 and 163 of 2006. The sentences were back-dated to commence on 7 March 2006, the date upon which the appellant had been taken into custody. He was not declared to be eligible for parole. He has appealed against the total sentence imposed upon him. The appellant was given leave to do so on two grounds. One of those grounds has since been abandoned. The sole remaining ground at the hearing of the appeal was that the sentencing Judge erred "when she failed to give sufficient weight to the fast-track pleas of guilty entered by the Appellant such that the sentence imposed was manifestly excessive". The sole particular to that ground is that the sentencing Judge "erred in not giving any discount on sentence for the remorse reflected in the [appellant's] pleas of guilty". The appeal was unanimously dismissed at the conclusion of argument, with reasons to follow.

6 Before giving my reasons for joining in that decision, I should set out some of the information that was placed before the sentencing Judge at the time of sentencing.

7 The appellant, who was born on 21 March 1968, was then 38 years old. He had a long-term de facto partner and a 2-year-old child. He had pleaded guilty on the fast track. The offences in respect of which he had been convicted and sentenced in 2001 were very similar to the present offences. They had involved a total sum of $350,000. When he was sentenced in respect of those offences the appellant was told of the impact that his offending had had on his victims. He was released on parole in respect of those offences in April 2003. After that, his mother employed him in her nursery business. Then, unwisely as it turned out, his parents encouraged him to start his own business. He did so, and soon began defrauding his customers once again. The appellant was initially released on bail after being charged with the present offences. He obtained employment at a good wage, which he used to pay his personal debts. He paid no compensation to any of the victims of his offending behaviour.

8 A number of psychological reports and a psychiatric report were made available to the sentencing Judge. These established that the appellant came from a supportive and successful family. The suggestion was made that the support of his parents had put so much pressure on the appellant to succeed that he committed these offences, by making commitments and promises he could not keep, out of an overwhelming desire to please his parents. Not surprisingly, the trial Judge described the notion of apportioning blame on the parents as being "a nonsense".

9 A pre-sentence report dated 25 May 2006 was provided to the sentencing Judge in respect of the appellant. That report revealed that the appellant had told its author that, in his opinion, the offences with which he was charged "were a civil matter" relating to his business and were "something that got out of hand". The author of the report said that the appellant had expressed no remorse and had claimed that all the moneys owing would have been repaid. The author concluded, with considerable justification, that the appellant did not accept full responsibility for his behaviour.

10 That brings me to the sole ground of appeal. It is not in dispute that the sentencing Judge took into account the appellant's pleas of guilty. As I have mentioned, all that is argued is that the total sentence imposed was excessive because she failed to make a sufficient allowance for the fast track pleas of guilty as a result of what is said to have been her error in failing to take account of the appellant's remorse reflected in those pleas.

11 The sentencing Judge did not say what discount she gave in respect of the early pleas of guilty (and nor was she obliged to do so: Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048; Chivers v The State of Western Australia [2005] WASCA 97 at [20] - [27] and [33]). However, she said that these provided the appellant "with substantial mitigation" and that she considered them to be "very mitigatory", no doubt because those pleas reflected a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339. Consequently, counsel for the appellant is in the unusual position of arguing that the discount allowed for the pleas of guilty was too little, notwithstanding that the sentencing Judge did not say what discount she had allowed, other than by saying that the pleas had provided substantial mitigation from which it might be inferred that she made a substantial discount. As will be apparent, there is no ground of appeal (and nor was any contention advanced in the course of oral submissions) that the totality principle was infringed, as to which see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J. However, in his written submissions, counsel for the appellant mentioned the principle that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct and referred to what was described as a comparative case which, he said, indicated that the total sentence imposed was excessive. The sole argument advanced in the course of his oral submissions was that if the sentencing Judge had appreciated, as she should have done, that the pleas of guilty carried with them an element of remorse, she would have imposed a lower total sentence.

12 In advancing this argument, counsel for the appellant said that the sentencing Judge regarded the appellant as having shown no remorse at all. He submitted that, because remorse is a recognised factor in mitigation, it necessarily followed that, if she had accepted that the appellant had shown remorse, she would have made a greater deduction on account of the pleas of guilty than whatever discount was in fact made by her. He submitted that a finding of remorse should inevitably have followed from the fact of the appellant's pleas of guilty, more particularly having regard for the fact that offences of fraud are difficult to prove, as the sentencing Judge acknowledged.

13 The sentencing Judge made no express finding of an absence of remorse. However, she mentioned that the author of the pre-sentence report had said that the appellant had expressed no remorse and that he had minimised the seriousness of the offences committed by him. She also remarked, during the course of the debate which immediately preceded her sentencing remarks, that it was impossible to find evidence of any true remorse. It may consequently be accepted that she made no allowance for remorse.

14 In my respectful opinion, she was right to do so. The appellant had plainly showed no remorse for his offending behaviour. He was, as I have said, a repeat offender who committed these offences while on parole for prior offending of a very similar kind. His comments to the author of the pre-sentence report (which were not disputed) reveal a complete lack of insight into his offending behaviour. I have mentioned that the pre-sentence report indicated, as was plainly the fact, that the appellant did not accept full responsibility for his behaviour. I have also mentioned that the report revealed that he had expressed no remorse in respect of his offending. All of this, and the duration and nature of his offending behaviour, is indicative of a callous disregard for the interests of his victims, some of whom could ill afford to lose the money of which they had been defrauded. One example, specifically mentioned by the sentencing Judge, involved the defrauding of a woman who, to the appellant's knowledge, was raising a disabled son in difficult circumstances. The money of which this woman was defrauded had been saved by her over many years in order to meet her son's needs and to protect his future. As a consequence of the loss of her money she suffers from severe depression.

15 I am unable to accept the proposition that a plea of guilty necessarily carries with it a degree of remorse. Most offenders, particularly repeat offenders, are aware that a substantial discount in sentence can be obtained by pleading guilty. That, on its own, provides a sufficient incentive to plead guilty in a case in which conviction is likely. In such a case, remorse may or may not accompany the plea. It is true, as the sentencing Judge acknowledged in the course of her sentencing remarks, that offences of fraud are often difficult to prove. However, there is nothing to suggest that convictions were unlikely in this case. As the sentencing Judge also remarked, while there might have been some problems for the prosecution to overcome, this was not a case which, on the face of it, should have presented any real difficulty to a jury. Having regard to this, and the other circumstances to which I have referred, there is in this case no reason to infer from the mere fact of the pleas that the appellant was remorseful. He plainly was not. As I have said, it is apparent from what was said by the sentencing Judge that she allowed a substantial discount as a reward for the appellant's willingness to facilitate the course of justice and that, in doing so, she took into account the difficulties and delays inherent in fraud trials. In the circumstances there was no occasion for her to do any more than that.

16 It follows that I am not persuaded that the sentencing Judge made any error in sentencing the appellant upon the basis that he had demonstrated no remorse or that she otherwise erred in failing to give sufficient weight to the appellant's pleas of guilty.

17 I should add that, given the maximum penalties imposed for offences of this kind (10 years' imprisonment in the case of victims over the age of 60 years and 7 years' imprisonment in any other case: s 409(1)(g) and (h) of the Criminal Code (WA)), the serious character of the frauds committed (in many cases against vulnerable victims), the lengthy period of offending, the large amount involved and the absence of any real mitigation other than the appellant's pleas of guilty, I am not persuaded that the aggregate sentence was inappropriately long, having regard to the appellant's course of criminal conduct as a whole. While it may be so that the sentence imposed in this case was more severe than that imposed in other cases of multiple fraud (counsel for the appellant relied, in this respect, upon Hladin v Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, a case that seems to me to be dissimilar in material respects), this was justified by the combination of the callousness and predatory nature of the appellant's offending behaviour, the duration of his offending, the increased need for personal deterrence (having regard for the appellant's lack of remorse and blatant disregard for the law, as evidenced by his repeated offending behaviour while on parole and on bail for prior similar offences) and the absence of any significant mitigation apart from that arising from his early pleas of guilty.

18 WHEELER JA: I have read in draft the reasons of Steytler P. I agree with them and have nothing to add.