Criminal law and procedure - Sentencing - Aggregate term of 2 years imprisonment imposed for 23 offences of fraud committed between February and September 1999 - Indictment dated February 2004 - Offender on bail until convicted - Offences netted about $102,000 - Applicant a first offender - Applicant achieved substantial rehabilitation before sentencing - Co­offender on some offences fined - Parity and totality arguments - Whether sentences should be suspended

Sentences suspended for 12 months on undertaking to pay compensation in 6 months

Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321

Gavin v R (1992) 6 WAR 195

Jones v R [2003] WASCA 155

R v Lovelady; Ex p Medcalf [1982] WAR 65

R v Pearce (1992) 7 WAR 395

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

R v Azaddin (1999) 109 A Crim R 474

1 JUDGMENT OF THE COURT: Between 10 February 1999 and 27 September 1999 the applicant, either as a principal offender or by aiding others, made a series of applications for credit cards, store cards, personal loans, a hire purchase agreement for a Lotus car and for the rental of electrical goods. The applications were made in a series of false names. When the applicant used his own name he provided false particulars in support of credit applications. He provided false employment references, false financial documents and other supporting material. Where credit applications were involved, the applicant pursued them himself or procured others to make them for him. One person who was so involved was a Ms Kelson. In short, the activities involved in the commission of the offences were sophisticated and well-planned. The applicant was convicted of 23 offences involving a total loss of $102,788, as it was finally established before the sentencing court.

2 The applicant was arrested on 8 October 1999. The extent of his fraudulent activities did not immediately emerge but required investigation over a period of time. The applicant was originally indicted after investigation with a greater number of offences than the 23 offences of which he was finally convicted. After he was first charged he was soon admitted to bail. He remained on bail after his committal to the District Court for trial. Trial dates were fixed in February 2004 in respect of an indictment containing 29 counts, the indictment being dated 9 February 2004.

3 On the Friday before the Monday when the trial was due to commence, the applicant offered pleas of guilty to all but six of the offences charged in the indictment. That was accepted by the prosecution and those pleas were entered on 16 February 2004. The sentencing proceedings were lengthy. They occupied 16 and 25 February. Sentence was passed on 25 March 2004, but by then, on 25 February, the applicant having offered to make restitution for the offending, a compensation order in the sum of $102,788 had been made. Strictly speaking, what was done on 25 February was to make a series of compensation orders in favour of each of the victims of the offences committed by the applicant who had suffered loss in money terms as a result of the commission of the offences: Sentencing Act 1995 (WA), s 117.

4 Although the applicant was then remanded in custody to be sentenced on 25 March, it was not ordered under s 119A of the Sentencing Act that the applicant was to be imprisoned until the compensation was paid. The order or, more strictly, the series of orders making up the total of $102,788 would therefore have been enforceable under s 119 of the Sentencing Act by each of the persons in whose favour the order was made. The compensation order could be registered as a judgment in a court of competent jurisdiction and the sum involved could be recovered as a judgment debt. The weakness in practical terms of that process is manifest and we will return to this aspect in due course when discussing the orders made on appeal.

5 On 25 March the applicant was sentenced to an aggregate term of 2 years imprisonment. In respect of each of the 23 offences, a term of imprisonment for 1 year was imposed. The offences were arbitrarily grouped in two lots. The first 12 counts on the indictment of which the applicant was convicted were grouped together, as were the second 11 of the counts on the indictment. The sentences for the offences in each group were ordered to be served concurrently, but cumulatively upon the terms in the other group. Hence the aggregate term of 2 years. Having regard to the relatively short periods of time during which the applicant had been imprisoned on remand, both prior to and following his conviction, the sentences were backdated and deemed to have commenced on 16 January 2004. Eligibility for parole was ordered.

6 The applicant sought leave to appeal against the severity of those sentences. His appeal was not instituted until 19 July, nearly 4 months after sentence was passed, and, given that the applicant had 21 days from 25 March in which to appeal, the application was about 3 months out of time. But as the applicant explained, that notice of application was substituted for an earlier one which was filed, together with an application for an extension of time, on about 10 June.

7 In a supporting affidavit the applicant explains that at about the time when he was ready to make his application he was attacked in the prison and injured. As a result he was hospitalised and then spent a period of time convalescing in the prison infirmary. He lost about 3 weeks in that process, after which he was transferred to an open prison at Wooroloo. He then found that many of the necessary documents had been lost and he had the usual difficulty in finding or replacing them. We thought that in the particular circumstances, the applicant had moved the process along with reasonable expedition and that an extension of time should be granted.

8 Shortly after the application for leave to appeal was finally made, the applicant applied for bail. It was granted on 10 August and the applicant has been at liberty since then, having by then served, in total, nearly 7 months of the non-parole period of 1 year applicable to the aggregate term of 2 years imprisonment: Sentencing Act, s 94(3).

9 The applicant advanced a number of grounds of appeal. Before turning briefly to those propositions advanced by the applicant which seem to us to have merit, we should deal with a number of specific matters which did not seem to us to be persuasive.

10 A complaint was made about the sentence passed upon the co-offender, Ms Kelson, who was fined a total of $4500 for six offences, three of which were committed jointly with the applicant; counts 14, 18 and 19 on the indictment. The fines were imposed on 27 February 2003, about a year before the applicant came before the District Court. As we were told, it was apparently proposed that Ms Kelson would give evidence at the applicant's trial. She was sentenced by Viol DCJ, who was not the judge who dealt with the applicant.

11 The applicant argues that the accepted principle of parity in sentencing, properly applied to his case, should have led to some form of non-custodial disposition, although Ms Kelson was convicted of far fewer offences than the applicant. He argues that nonetheless, if it was proper in her case to make a non-custodial disposition, then the same conclusion should have been open in relation to those offences which were common in his case. He argues that among those offences were frauds committed upon banks which individually produced among the largest losses sustained by any victim.

12 We have read the remarks on sentence by Viol DCJ. His Honour was made aware of the role played by the applicant in the commission of the offences and found that Kelson committed the offences under the applicant's influence and effectively for his benefit. Having, since then, broken free of the applicant's malevolent influence, Ms Kelson had managed to take significant steps towards her rehabilitation. We think that having regard to those findings, the two cases are obviously entirely dissimilar. The parity argument advanced by the applicant, in our view, lacked persuasive force.

13 Then there is a complaint that the sentencing Judge did not obtain a pre-sentence report in respect of the applicant before sentence was passed. At the sentencing proceedings the applicant was represented by experienced counsel. She presented a substantial plea in mitigation, outlining, particularly, the applicant's personal circumstances and what he had done over the long period of time between the commission of the offences and his appearance in the District Court in considerable detail. A lengthy book of references was attached. References were provided by a variety of people who knew the applicant in different circumstances of his life, including charitable work of some real significance with the "Make-A-Wish" Foundation, a charitable foundation involved in making come true the wishes of seriously ill children.

14 Further, the Court was presented with a report by Professor Lipton, a consultant psychiatrist. It was effectively a pre-sentence report because there was no diagnosis of any formal psychiatric disorder. The report contains some material of a factual kind concerning the commission of the offences and the applicant's role in them, but, putting that to one side, the document contains a relatively full account of the applicant's personal circumstances.

15 Finally, there was a copy of the applicant's criminal history placed before the Court by the prosecution. It contained one offence of importing a prohibited import for which, on 19 December 2001, the applicant was fined $2500. The applicant says the substance imported was hormonal medication for which he had a doctor's prescription which could have been filled. However, the applicant had seen on the Internet that he could obtain the drug more cheaply from overseas and he imported it without approval. Of course, the offence was committed after the four offences for which the applicant was to be sentenced, but as at the date of sentence it was part of the applicant's antecedents. The sentencing Judge had regard to it in that way, while properly treating the applicant, for sentencing purposes, as a first offender. It is noteworthy that the applicant would have been 24 and 25 when the offences were committed and he was sentenced on the day before his 30th birthday.

16 Of course, the failure to obtain a pre-sentence report will, generally speaking, not provide any ground of appeal in relation to the sentence imposed unless the result has been that the sentencing court errs in the exercise of discretion because it is not sufficiently fully informed of some relevant factual material: Gavin v R (1992) 6 WAR 195. But in any event, the Court was fully informed in this case about all matters of aggravation and mitigation relied upon by the parties respectively and it is not suggested that a pre-sentence report would have added to the factual picture. This complaint is without substance.

17 There is a ground of appeal which asserts that the sentencing Judge did not sufficiently take into account for sentencing purposes that there had been an offer by the applicant to make reparation for the offences committed and a compensation order had been made. That does not seem to be a ground which directly challenges the making of the compensation order, but the relief sought by the applicant included an order setting aside or discharging the compensation order. The applicant argued the matter in two ways. He did argue that the order should not have been made and he asserted also that in the event that the order stood in force, it had been given too little effect in mitigation of the punishment otherwise to be imposed for the offences.

18 There is, in our view, no ground for setting aside the compensation order, given the interpretation of the nature and effect of the order to which we have referred. It was conceded at the sentencing proceedings that the order should be made in the form and in the amount that it was.

19 The applicant relies upon s 113 of the Sentencing Act. So far as material it provides as follows:

"A court may decide not to make a reparation order or to reduce the amount to be paid under a compensation order if -

(a) any behaviour, condition, attitude or disposition of the victim contributed directly or indirectly to the loss or damage suffered;

(b) the offence was not reported promptly to the police;

(c) ...

(d) ... "

20 He argues that s 113(a) applies because, he says, in effect, he targeted a number of the financial institutions involved in the commission of particular offences because they facilitated the applicant obtaining loans and lines of credit either by their direct marketing activities or by offering loans and credit lines and assisting the applicant to perpetrate the frauds. The submission is arrant nonsense.

21 Further, as to s 113(b) he says the offences were not reported promptly to the police by the banks and financial institutions defrauded, but this provision can have no application because the commission of the offences came to light when a branch manager of the National Australia Bank involved in the activities which came to constitute counts 27, 28 and 29 on the indictment became suspicious when she noticed that the personal information provided by the applicant under the name of Capel matched the information provided in respect of other applications made in the names of Shaw, Taylor and Schmidt. She alerted the police. It was decided to ask Mr Capel to call on the bank. That was done. He attended but he was, of course, the applicant, and the police commenced their inquiry immediately, searching his briefcase and elsewhere to discover substantial numbers of false documents and to bring to light the commission of the other offences for which the applicant was ultimately indicted and convicted. Again, in those circumstances the submission made in reliance upon s 113(b) is completely devoid of merit.

22 There was more, however, we thought in the submission that little weight was given to the making of the compensation order in determining what punishment was to be imposed by the sentencing court. His Honour had, of course, made the compensation order only shortly before he passed sentence, but he did not mention it in his remarks on sentence and when, at the conclusion of the sentencing proceedings, defence counsel reminded the judge that he had made a compensation order, his Honour responded, "Yes, I appreciate that."

23 So far as material, the Sentencing Act, s 110, provides:

"(1) A reparation order is in addition to and not part of the sentence imposed on an offender.

(2) A sentence must not be reduced because a reparation order is made.

(3) Subsection (2) does not prevent the mitigation of a sentence in a case where an offender agrees to make good loss or damage resulting from the offence or is otherwise contrite."

24 In our opinion, the effect of these subsections is clear. A reparation order includes a compensation order. The Court could not therefore directly reduce a sentence imposed, eg, by way of fine, having regard to the making of a compensation order, but that is not to say that the Court may not mitigate punishment because of the burden which will rest upon the offender in complying with the order or otherwise in honouring an offer, undertaking or agreement to make good loss resulting from the offence in a case where the offender's contrition is demonstrated. That such an offer was made in this case was clearly a matter to which regard was to be had in mitigation of punishment.

25 In view of the fact that it was not mentioned in that context while other matters of mitigation were discussed by his Honour, it does appear to us that the offer to make good the losses, although belatedly made and not put into effect during the period between the applicant's arrest and when he appeared for sentence, deserved recognition in mitigation of punishment. It was part of a process by which ultimately the applicant accepted his responsibility for the offending and offered to make good the harm he had caused.

26 The applicant contends that his pleas of guilty were also given too little weight in mitigation of punishment. They were, of course, very late in the process of dealing with the indictment in the District Court, but there was a history to that. It apparently took a considerable time to finalise the indictment and, when that was done, the applicant continued to be charged with six offences which he was not prepared to admit. He had maintained pleas of not guilty to all the offences with which he had been charged and only belatedly, on the Friday before the trial was due to start on the following Monday, was it apparently put to the prosecution that if they would decline to proceed further in respect of the six counts to which the applicant would not plead guilty, he would plead guilty to the rest. Once that was agreed the pleas were entered. That clearly facilitated the administration of justice because it saved, as his Honour the sentencing Judge noted, a trial which was listed for some weeks.

27 But we think the circumstances in which the pleas were entered did also demonstrate that as soon as the way was clear, in the applicant's eyes, to dispose of the charges against him by pleading guilty, he did so. Again, this was a demonstration, in the same way as the offer of compensation, of his belated acceptance of responsibility for his offending behaviour. It was a real matter of mitigation to which the Court was to have regard. His Honour mentioned it but appears, from his remarks on sentence, to have accorded little weight to the pleas of guilty in mitigation of punishment.

28 Dealing generally with the remaining grounds of appeal, their thrust is to advance the proposition that the sentences as imposed were manifestly excessive because, despite the seriousness of the offences in question, the circumstances of the case, so far as they concerned the applicant personally and his behaviour since the commission of the offences, provided such powerful mitigation that the sentencing Judge erred when his Honour concluded that only a term of imprisonment to be immediately served would suffice as punishment properly proportionate to the criminality involved in the offences committed. The applicant submits that, at the very least, all of the sentences should have been ordered to be served concurrently but the main thrust of his application was that whatever sentence of imprisonment was to be imposed its service ought to have been suspended.

29 We have spoken of the circumstances of the commission of the offences. In our respectful opinion, his Honour was right to regard them as serious examples of fraud. They did not, of course, involve breaches of trust such as would be attendant upon the commission of offences of stealing as a servant and, regrettably, it is not infrequent that cases come before the courts involving much greater sums of money or otherwise productive of greater harm to the victims, particularly if they are natural persons rather than financial institutions, as in this case. But nonetheless, as we have noted, this offending took place over an appreciable period of time and we have no doubt it would have continued had the applicant not been apprehended. The sum involved, which was lost to the victims, may not have been individually great in relation to particular offences, but in its total it was a large sum of money. The commission of the offences involved planning and premeditation and, as we have observed, other persons, particularly Ms Kelson, were drawn into the process of their commission. In short, there was much about these offences which was aggravating in character and marked them as being offences of real seriousness.

30 It was in the applicant's personal circumstances that mitigation was to be found. When the offences were committed he was a young man and he had never before committed any criminal offence. He had come to this country with his family from a privileged lifestyle. He had not adapted well to the family's change in circumstances as they struggled to establish themselves here. The report of the psychiatrist suggested that some part of the reason for the offending was a desire to ingratiate himself with friends, as well as a desire to create a lifestyle for himself which was otherwise beyond his financial capacity. When he was arrested, charged and imprisoned he was, as Professor Lipton, observed, brought face to face with a very painful reality. That had a therapeutic effect.

31 Upon his release on bail he was able to re-establish himself in a law-abiding and proper lifestyle. He met a young woman to whom he is presently engaged to be married. It is clear that she has been a very good influence upon him. He has been accepted into and welcomed by her family. He continues to enjoy support from his own family. He re-established himself in business and has developed a good business. At the same time, he commenced actively to involve himself in charitable work and the evidence before the sentencing court showed that he had been making a real contribution and had a capacity to continue to do so. In his absence in prison his fiancée has attempted to carry on the business, which employs a number of people. She has not, however, had the success in that regard that he formerly enjoyed and since his release on bail he has worked to again build the business to its former success.

32 It seems clear to us that, as at the time when he appeared for sentence, the process of his rehabilitation was well advanced and there was little prospect, on the evidence before the Court, that he would offend in any similar way in the future. In those circumstances, while the need for the punishment to reflect the criminality involved in the offending remained an important consideration and while there was a need to serve the principle of general deterrence, the aim of particular deterrence was of less significance.

33 The matters of mitigation we have discussed were not overlooked by the sentencing Judge. His Honour simply took the view that the circumstances of the commission of the offences were too serious to permit of the imposition of a suspended sentence. That was the right way to approach the question of suspension of sentence: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, but in our respectful opinion, his Honour erred in the conclusion to which he came. In our view, the submission that the individual terms of the sentences or the total effect of them was manifestly excessive could not succeed: cf Jones v R [2003] WASCA 155, but in the particular circumstances of this case his Honour's exercise of discretion miscarried when he took the view that the case was too serious to permit suspension of the sentences.

34 On the contrary, we think this to be just the sort of case where suspended sentences ought to be imposed. The decision that only imprisonment would suffice sufficiently marked the seriousness of the offending and served the principle of general deterrence. On the other hand, to suspend service of the sentences would enable the applicant to demonstrate that the process of his rehabilitation was complete and that he would not in the future offend again.

35 At the conclusion of the hearing we therefore granted leave to appeal and allowed the appeal. We varied the sentences of 12 months imprisonment imposed for each of the offences by ordering that they be suspended for a period of 12 months to commence on the date of our order. These have been our reasons for taking that course.

36 Before making those orders, we obtained from the applicant his solemn undertaking to the Court that he would pay the sum of $102,788, the subject of the compensation order made, to the Director of Public Prosecutions within 6 months from the date of our order. We should explain what we consider to be the effect of so doing. In the first place, of course, it marks the Court's view that this was a case where it was important, as the sentencing Court appreciated, to take advantage of the offer of reparation. His Honour made the compensation order in the form that we have discussed. We have noted the enforcement processes available in respect of that order.

37 It will be observed that the undertaking we accepted from the applicant was in a somewhat different form. Whether by way of one or more payments, the whole of the amount in question is to be paid to the Director of Public Prosecutions. He will then have the obligation to remit to the various complainant financial institutions their portions of the total sum. The undertaking we accepted would not, of course, supplant the compensation order. That continues. But if the undertaking is honoured, as we expect it to be, it will, in our view, discharge the compensation order.

38 What then if the undertaking is not honoured? It is not, of course, a condition of the order for the suspension of the sentences that it be honoured. But in our opinion, the sanction, if the undertaking is not honoured, lies in the statutory mechanism available to deal with re-offending. The applicant gave his undertaking to the Court. If he fails to comply with it, that, as we explained to him, would constitute a contempt of court. That is a punishable offence: Criminal Code Act 1913 (WA), s 7. It is triable summarily: R v Lovelady; Ex p Medcalf [1982] WAR 65, and the proceedings may be commenced and carried on by the Director of Public Prosecutions: R v Pearce (1992) 7 WAR 395.

39 In our view, if the applicant was so convicted that would be of an offence committing during the suspension period and, in our view, because the common law offence of contempt of court is preserved by the Criminal Code Act it may be argued that the statutory penalty for the offence includes imprisonment. The conviction for contempt of court would arguably, in that case, constitute a ground upon which an order could be made that the applicant serve all or part of the terms of imprisonment which were suspended: Sentencing Act, s 80. No doubt the Court might give the applicant credit for the portion of the sentences already served, but the point is he would, on that view, be liable to be returned to prison, at least to continue service of the suspended term.

40 It was for these reasons that we made the order to which we have previously referred.