COLLINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 108 (24 May 2007)

5 The appellant was born in Scotland. When a child he was abandoned by his mother and raised in an institute. He was brought to Australia by his father when he was about 19. The appellant had been in employment since arriving in Australia. He worked as a youth worker for 11 years before entering the real estate industry.

6 The appellant was aged 48 at the time of sentencing in October 2006 and had suffered a heart attack about four months earlier. He was on antidepressant medication at the time of offending and had no relevant prior criminal record. He claimed that his employer had failed to pay him bonuses to which he was entitled and stole in order to "even the ledger". However, he knew at the time that what he was doing was wrong.

7 Roberts-Smith JA granted the appellant leave to appeal on three grounds which allege that the sentencing Judge erred:

(1) in failing to suspend the sentence of imprisonment;

(2) in applying the principle in Barrick (1985) 81 Cr App R 78 that where an offender is charged with stealing as a servant it is necessary to demonstrate exceptional

circumstances before any term of imprisonment can be suspended;

(3) in imposing a total sentence that is manifestly excessive.

8 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge. It is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons or if error can be inferred. However, even if a sentencing judge has made an error, this Court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed (s 31(4)(a) of the Criminal Appeals Act 2004 (WA)).

9 The appellant contended that the approach taken by the sentencing Judge is inconsistent with that approved by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. The sentencing Judge said:

"I have had reference to a number of decisions of the Court of Appeal dealing with sentencing for this type of offending. Of course no two cases are ever the same and one can only look to such cases for general guidance. In general, where an employee in a position of trust steals money, a term of immediate imprisonment is inevitable save in very exceptional circumstances or where the amount of money obtained is small. This is because general deterrence to prevent breaches of trust is a major consideration in such cases."

10 The sentencing Judge's statement of the general position is taken from the reasons of the English Court of Appeal in Barrick where Lord Lane CJ said (at 81 - 82):

"It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, we make the following suggestions.

In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small."

11 Later in his judgment the sentencing Judge referred to the sentencing principles applicable in this State. He said:

"In considering sentence I must have regard to each of the options which are available to [the appellant] in terms of the Sentencing Act. In the circumstances I have come to the view that only a sentence of imprisonment on each charge to be immediately served is appropriate to reflect the seriousness of this offending and to indicate general deterrence for this type of offending. Your circumstances are not exceptional and are not such that I should suspend any part of the sentence."

12 Under s 6(4) of the Sentencing Act 1995 (WA) ("the Act") a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. In this case it was common cause that the only appropriate sentencing option was a term of imprisonment.

13 Section 39(2) of the Act sets out the sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. I will refer to these latter options compendiously as suspended imprisonment. Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option.

14 Section 76 deals with suspended imprisonment. It materially provides:

"(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 whole of 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."

15 This Court and its predecessor (the Court of Criminal Appeal) have noted the possibility of different views in the judgments in Dinsdale as to the order of approach to be followed by a sentencing judge when considering whether or not to impose a suspended sentence. On that subject, I respectfully agree with Parker J's analysis of Dinsdale in Latham [2000] WASCA 338; (2000) 117 A Crim R 74. He said (at 78):

"[W]hat appears to be critical to the adequate exercise of sentencing discretion is whether due regard was had to the stipulation of s 6(4) which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider ss 6(4) and 39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when ss 6(4) and 39(3) are considered, but that they be properly considered."

16 The power to suspend imprisonment is not confined by reference wholly, mainly, or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale per Gleeson CJ and Hayne J at [18]; Gaudron and Gummow JJ at [26] and Kirby J at [84]. Rather, the same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale per Kirby J at [85]. Counsel for the appellant contended in oral submissions that in requiring the appellant to establish exceptional circumstances, the sentencing Judge had failed in his obligation to revisit all the relevant considerations in determining whether the sentence should be suspended.

17 However, the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this Court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. So, for example, this Court has made it plain that generally a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences such as manufacturing or trafficking dangerous drugs. In those categories of cases, the imposition of a lesser sentence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77.

18 As to the offence of stealing as a servant, it is apparent from the decisions of this Court (and its predecessor) that the offence is serious, involving as it does the abuse of a position of trust, and that fact results in significant weight being given to the need for general deterrence with an associated reduction in the weight given to personal antecedents such as prior good character. The consequence of the application of these principles is that in this jurisdiction, where the amount stolen is substantial and involves multiple offences, ordinarily the appropriate penalty for the offence is a term of immediate imprisonment. A number of the relevant authorities are detailed in the reasons of Steytler P in Hladin v Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 at [37] - [44]. Other relevant authorities include Smith v The Queen [2003] WASCA 235; Nelmes v The State of Western Australia [2004] WASCA 191 and Wilkie v The State of Western Australia [2005] WASCA 156. In Smith the appellant stole funds totalling $667,750 from her employer bank involving 22 offences over 16 months. She entered a late plea of guilty, had repaid approximately $200,000, had no prior convictions, was otherwise of good character and had used the funds in her business which she believed would succeed and enable her to repay the amount stolen. The appellant unsuccessfully appealed against her total sentence of 2½ years (1 year and 8 months under the current sentencing regime).

19 In Nelmes, the appellant was convicted on six counts of stealing a total of $309,671 as a servant and 21 counts of fraud over a three year period. The appellant entered a fast track plea of guilty, reimbursed some funds, turned himself in and assisted the investigation. He stole to support a gambling habit and was of prior good character with a young family. On appeal, the appellant's total sentence (under the current regime) of 4 years and 8 months was reduced to 4 years.

20 In Wilkie, the appellant stole approximately $1.6 million over eight years from his employer. He entered a fast track plea of guilty and was of prior good character. His appeal against a total sentence of 5 years (under the current sentencing regime) was dismissed.

21 However, even if it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to suspend the term of imprisonment (or to impose another lesser sentence). The purpose of identifying the general position is to provide guidance to sentencing judges. Where such guidance is provided, the question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence.

22 In this case the sentencing Judge relied on the English case of Barrick to apply an exceptional circumstances test. It is an error to rely on guideline judgments from other jurisdictions where different sentencing principles and considerations may apply. However, I am not satisfied that the error was material in this case. Where the authorities disclose that the imposition of a sentence other than immediate imprisonment is rare, as is the case with stealing as a servant, it is not an error to apply an exceptional circumstances test provided it is understood that what is exceptional can vary from case to case and that the assessment must be based on all relevant sentencing factors. I am satisfied from the sentencing Judge's reasons that he formed his judgment about suspended imprisonment after taking into account all relevant sentencing considerations. In any event, even if the sentencing Judge wrongly excluded relevant facts from his consideration, I am satisfied that he did not err in concluding that a term of immediate imprisonment was the only appropriate sentencing option.

23 In determining whether the length of the term is manifestly excessive regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the scale of seriousness of the circumstances of the offence and the offender's personal antecedents.

24 The maximum penalty for the offence is imprisonment for 10 years. The maximum penalty for the offence of stealing simpliciter is 7 years (s 378 of the Criminal Code). The higher maximum for stealing as a servant reflects the breach of trust that is involved. In this case the theft occurred over an extended period of 10½ months on a regular basis and involved a substantial total sum which was used for lifestyle purposes. The sentencing Judge summarised the mitigating factors as follows:

"[Y]our plea of guilty, your cooperation with police at interview, your age, your prior good character, your health, the fact that you have no doubt been under great strain since being confronted with your dishonesty, your absence of future employment opportunities in a position of trust upon release."

25 The appellant's counsel conceded at the sentencing hearing that there was no causal connection between the appellant's offending and his depression for which he was medicated.

26 Based on my consideration of the authorities referred to in Hladin and those set out above, I am satisfied that the total term of 2½ years' imprisonment (3 years and 9 months under the former sentencing regime) is manifestly excessive. Although the amount stolen was substantial, it was relatively modest in comparison with the level of offending in the cases to which I have referred. The circumstances of the appellant's offending are towards the lower end of the scale of seriousness of crimes of this type. Further, the appellant pleaded guilty at the first reasonable opportunity, he cooperated with police and the stress involved in his offending is likely to have exacerbated his physical and mental condition. The sentencing Judge found in effect that there was no risk of the appellant re-offending. In the circumstances I would reduce the total term by one third to 1 year and 8 months (2½ years under the former sentencing regime).

27 Thus, I would set aside the sentences imposed by the sentencing Judge and in lieu thereof impose a sentence of 10 months for each offence. I would order that the sentences on counts 1 and 2 be served cumulatively and the balance of the sentences be served concurrently resulting in a total effective sentence of 1 year and 8 months. The sentences are backdated to 10 October 2006. The appellant remains eligible for parole.

28 MILLER AJA: This is an appeal against a total effective sentence of 30 months' imprisonment imposed upon the appellant for 75 counts of stealing as a servant, contrary to s 378(7) of the Criminal Code (WA). The offences occurred between 25 October 1999 and 4 September 2000, when the appellant drew and signed 75 unauthorised cheques from a trust account in the name of his employer. The facts are set out in more detail in the judgment of McLure JA.

29 The appellant was a 48-year-old man at the time of sentencing. He had no prior criminal record, suffered ill health and he had pleaded guilty to the offences at the first reasonable opportunity.

30 McLure JA has concluded that the total effective sentence of 30 months' imprisonment was manifestly excessive. I respectfully disagree. In my view, the sentence of 30 months' imprisonment was within the range of sentences that could be expected for this offence.

31 I have considered Steytler P's review of sentencing trends in cases of this nature which is contained in Hladin v Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, at [37] - [44] inclusive. This review indicates that, in cases in which there has been a substantial sum of money stolen by a servant of his or her employer, sentences under the old regime ranged between 4 and 5 years' duration. In some cases, offenders were sentenced to lower terms, but, generally speaking, there were special reasons why sentences were lower in those cases.

32 The recent decision in Nelmes v The State of Western Australia [2004] WASCA 191 confirms this general range. This was a case where the transitional provisions required the sentences to be reduced by one-third. The applicant had pleaded guilty to six counts of stealing as a servant and 21 counts of fraud. The offences had been committed over the period October 2000 to November 2003 and involved a total sum of $309,671.44. Only a very small amount ($5000) had been repaid. The offender was a 38-year-old married man with children and had previously been of excellent character. The money was stolen for the purpose of gambling. An effective sentence of 4 years 8 months' imprisonment was imposed. The Court reduced the sentence to an effective sentence of 4 years' imprisonment. A sentence of 32 months was imposed for the six counts of stealing as a servant. The sentences were ordered to be served concurrently. Under the old regime, this equated to a 4-year sentence.

33 In R v Ottobrino [1999] WASCA 207, the offender was a mother of young children and had stolen money for family purposes. The sum involved was $194,500. She was sentenced to an effective term of 18 months' imprisonment, which, in the circumstances, was a very low sentence. The Crown appealed against the leniency of the sentence and the appeal was dismissed by a majority. Wallwork J (with whom Anderson J agreed) was concerned about the effect on the welfare of young children of sending their mother to prison, especially for extended periods. He referred to the joint judgment of Malcolm CJ, Kennedy and Ipp JJ in R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 6 April 1998, at 14 - 16, where the relevant authorities were discussed. This factor clearly weighed heavily in the result. Ipp J, who dissented, and who would have allowed the Crown appeal and resentenced Ms Ottobrino to 4 years' imprisonment, expressed the view at [10] that sentences of between 3 and 10 years' imprisonment were standard for offences of the kind committed by the respondent.

34 There are other cases in which special circumstances led to sentences lower than might be expected. R v Jeffree was a Crown appeal against sentence. The respondent had been convicted on her pleas of guilty to 48 counts of stealing as a servant between the period July 1995 and February 1997. The total amount involved was $30,200. Arrangements had been made for repayment of the amount stolen by instalments and, by the time of sentencing, a little over $18,000 had been repaid. The respondent was 28 years of age, separated from her husband and the mother of a 3-year-old child. A substantial portion of the stolen money was spent on the child and otherwise supplementing her wages which were her sole source of income. The respondent had been placed on a community based order by the learned sentencing Judge. The Court of Criminal Appeal considered that disposition to be open in the exercise of the learned sentencing Judge's sentencing discretion.

35 The question of welfare of children was a matter of primary concern. The Court said (at 9):

"In our opinion, the learned sentencing Judge demonstrated that he had a full appreciation of the seriousness of the offences which the respondent had committed. He was considerably influenced in the approach which he had taken as a result of the issue of a compensation order being raised by the Crown and the particular interest in the complainant, a small business concern, in obtaining restitution. Significant restitution had already been made at considerable sacrifice to the respondent of the kind referred to by Hunt CJ at CL in Phelan. This was also a case in which the offender was the mother of a young child and in which imprisonment would result in the child being deprived of parental care. In our opinion, when all the relevant circumstances are taken into account, when one balances the seriousness of the offences with the public and private interest in, securing reparation, taken with the personal circumstances of the appellant and the effect of any sentence of imprisonment upon her child, the circumstances of this case were sufficiently exceptional to justify a decision not to impose an immediate sentence of imprisonment."

36 In Pain v Forbes [2000] WASCA 260, I concluded that a sentence of 3 years' imprisonment imposed on a 55-year-old woman with no prior convictions and with the welfare of her children and grandchildren her primary interest in life, was excessive and should be reduced to one of 2 years. It was a case in which I considered that the deed of restitution entered into by the appellant was an important factor. Further, it was a case in which I thought the Court should be prepared to "draw back in mercy" (Hodder v The Queen (1995) 15 WAR 264 per Murray J, at 287).

37 In Smith v The Queen [2003] WASCA 235, the applicant had pleaded guilty to 22 counts of stealing as a servant over a period of 16 months. The sum involved was very substantial, being $667,750, of which $440,534 remained outstanding at the time of the applicant's plea. The applicant was a 36-year-old woman with no prior convictions. She was six months pregnant at the time she was sentenced. Her husband worked at Christmas Island, her family was in Melbourne and the question of separation of the child (when born) from the father weighed heavily in the sentencing Judge's assessment of the case. By the time the matter was heard on appeal, the applicant's child had been born and was residing with her at Bandyup Prison. If the applicant was released on parole when eligible for release, the child would be 7 months of age. The Court observed, at [41], that the effective sentence of 2½ years' imprisonment was a significantly modest sentence which was no doubt due to the combination of personal factors highlighted by the learned sentencing Judge. An appeal against the severity of the sentence was dismissed.

38 It seems to me that the cases in which merciful dispositions have resulted for the offence of stealing as a servant are almost invariably cases which carry very special circumstances. A number of them involve offending by mothers of young children, where the welfare of the child or children has been a paramount consideration.

39 In the present case, the appellant was a mature man who offended over a period of approximately one year, using the funds which he obtained by unlawful means for personal expenses which included holidays to Bali. Apart from the fact that he had bad health, and his offending may have exacerbated his physical and mental condition, it seems to me that there was nothing exceptional about his case. There was nothing to suggest that his health problems could not be properly managed in prison. In these circumstances, I would not be prepared to reduce the sentence imposed by the learned sentencing Judge. I consider a sentence of 2½ years' imprisonment (3 years 9 months under the former sentencing regime) to be within the range of sentences that one could expect for offences of this nature.