Court of Appeal (WA)|2001-04-02|Before: Smith J

Dicks v Farrell [2001] WASCA 124 (2 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DICKS -v- FARRELL [2001] WASCA 124

Criminal law - Appeal against sentence of 12 months immediate imprisonment - Reasons for sentence - Whether Magistrate failed to consider suspended imprisonment - Whether term of imprisonment manifestly excessive

Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Veen v The Queen (No 2) [1988] HCA 14; (1988) 33 A Crim R 230

1 ROBERTS-SMITH J: This is an application by leave given on 4 September 2000 against the decision of a Magistrate sitting in the Court of Petty Sessions at Perth on 8 August 2000 whereby his Worship sentenced the appellant to 12 months' immediate imprisonment.

2 The grounds of appeal are, first, that his Worship failed to consider imposing a suspended sentence and, secondly, the imposition of 12 months' imprisonment was in all the circumstances excessive.

3 The appellant had been charged with an offence by complaint number 28154 of 2000 that on 22 October 1999 at Whitfords he with, intent to defraud by deceit, attempted to obtain finance to the value of $7000 the property of Statewest Credit Society Ltd, contrary to s 409(1)(a) of the Criminal Code.

4 The material before me is somewhat deficient in that the transcript of the proceedings before his Worship on 8 August seems to effectively commence from a point following the appellant's plea of guilty and quite possibly - and, indeed, probably - some outlining by the police prosecutor of the relevant facts alleged by the prosecution to the learned Magistrate.

5 There is nothing in the transcript to indicate what was said prior to that point. There is, however, a statement of material facts and from that it may be gleaned that the circumstances of the offence were as follows.

6 On Friday 22 October 1999 the appellant attended at the Whitfords branch of the Statewest Credit Society where he had a conversation with a staff member regarding an application for a $7000 loan apparently to be facilitated by way of or via a Visa card. The appellant was given the relevant application form. On that form he gave false information regarding employee details and falsely declared that he was purchasing a property at 6 Matilda Mews, Craigie which in fact was owned by his parents. He also supplied a water rate notice which he altered by deleting his parents' name and retyping his name in an effort to deceive to show that he was purchasing the property. He also used one of his father's pay slips which he had altered.

7 It seems that members of the staff became suspicious and his loan application was refused. Police were contacted. He was spoken to by police officers on 19 June and admitted to supplying false and misleading information on the application form. He stated that he was under severe financial stress at the time and has since sought counselling, which he is still undergoing.

8 In the proceedings before his Worship a pre-sentence report was obtained. This was presented orally. According to the community corrections officer who presented the report the appellant was 36 years of age, single and then residing in Craigie with his family. He does have a lengthy record of prior offending terminating in 1994. The officer said he had been unable to access the New Zealand authorities to determine whether or not there had been any offending there although the appellant had been resident in New Zealand for at least three or four years from 1994.

9 The officer said that Community Corrections' association with the appellant began in 1982. In that year and the subsequent year he was placed on two sets of probation, the first having been breached as, indeed, was the second. In 1984 he was placed on probation and community service orders which were in fact completed. In 1991 and 92 he was placed on two orders for work and development in each of those years. The first one was not completed successfully by him. The other three were all duly completed.

10 On 30 March 1994 he was again placed on probation which he summarily breached, resulting in fines on 12 October 1994. As the officer said, obviously the appellant's track record of formal supervision was not good nor was his observance of the conditions of supervision.

11 The officer gave the learned Magistrate some details of the appellant's personal background and circumstances. It appears he was born in the United Kingdom and the family came to Australia when he was about 7 years of age. He is the second born of three siblings. He does have a stepsister born to a prior union by his mother. He was raised in an intact family situation but he does claim - and this apparently is borne out in the Corrections officer's file - that he was the victim of physical and emotional abuse from his father. It was suggested that his father was a very strong disciplinarian and there was also domestic violence in the home environment in which the appellant lived until he was about 30 years of age, at which stage he left home for marital reasons.

12 He went to live in New Zealand with his then partner in 1994 and apparently returned in about 1998. The relationship endured for about six years although he was only married for about five and a half years of that time. There was one child born to the union, a daughter, who as at August last year was 6 years of age. The appellant's former wife is still in New Zealand as was the child although he had been fighting for access or visitation rights for some five or six years. The learned Magistrate was told the appellant had last seen the child about 2 years previously.

13 The appellant completed his education at 16 years of age at the end of year 10 and he completed the equivalent of his TEE in New Zealand on a part-time basis. The officer told the learned Magistrate that at that time the appellant was then currently enrolled in an applied electronics certificate course at TAFE, having completed three weeks with about three months at that stage still to go. He said that since leaving school the appellant had been employed as a roof plumber and also in general labouring but generally more of a short-term casual nature and he acknowledged that he had been more unemployed than employed since leaving school.

14 His financial circumstances were put before the learned Magistrate and they were, it might be said, quite bleak. The debts mentioned included a Visa card account of some $5000, a Myer card account on which $4500 was owing, a debt to AGC of $6000 for a car and a debt of nearly $5000 owing to the Fines Enforcement Registry. He had no significant assets or savings and told the officer that he was contemplating bankruptcy.

15 It was said that the appellant's health was basically sound although he broke his neck in a traffic accident in 1991 and that resulted in him getting a significant payout some years ago. Nonetheless, apparently he has ongoing problems and he has had two spinal fusions but is still on medication and takes pain-killers for pain still suffered as a result of that injury.

16 He has had a long history of involvement with psychological and psychiatric services. In more recent times he had been attending counselling with Ms Kate Orr a psychologist with the Belridge Medical Centre. He had been having treatment for anxiety and depression through the Craigie Medical Centre. His doctor there had prescribed medication.

17 In summary, the corrections officer said that the appellant comes from a dysfunctional family background although the officer said he had some trouble keeping the appellant on course during the interview and that proved somewhat difficult in trying to address the salient issues. He said that the impression gained of the appellant is that he tends to rationalise or minimise his offending behaviour, a factor which had been noted in his previous association with Community Based Services.

18 The officer referred specifically to discussions he had with Ms Kate Orr the psychologist who had apparently been dealing with the appellant on the basis that he suffers from a post-traumatic stress disorder. That it seems has its genesis in his traffic accident suffered in 1991, those aspects of his personal history to do with his family dysfunction when he was a child and what is described as an horrendous marital breakdown and consequent issues of access and custody.

19 Ms Orr apparently sees the appellant as being close to suffering what was described as social anxiety and she has essentially been working on his social survival skills. The officer further reported from his discussions with Ms Orr that her view was that he has a lot of potential and she was guardedly optimistic about his prospects. Her feeling was to that point he had made quite significant progress and that it would all be undone if he had to go to prison. She was also concerned that he suffers from suicidal ideation and was fearful of the consequences of imprisonment were that considered to be a viable option.

20 In conclusion, the community corrections officer made the observation that having regard to the appellant's age and antecedents he was rapidly getting to the stage where he was "a bit old" for that office to attempt interventions and that he was readily able to access community resources and is otherwise receiving appropriate medical treatment and psychological counselling. So in a sense it was the officer's view that it could be somewhat superfluous for the service to become involved. However, he did say on the basis of the psychological assessment the court may wish the service to keep monitoring the appellant under a community order with a program requirement - although the issue of a community work requirement, he thought, was problematic. That was because having discussed the possibility with Ms Orr her feeling was that the appellant really could not do community work due to the nature of his neck injury.

21 There was also before his Worship a letter from Ms Orr and that appears at pages 28 and 29 of the appeal book. That essentially sets out similar considerations to those to which I have already referred as having been before the court by the community corrections officer. I note that at the conclusion of that letter which is dated 31 August 2000 Ms Orr states:

"The appellant has worked hard in therapy and had made many changes in his lifestyle. Importantly, he has enrolled in an advanced computer course and was well on the way to successful rehabilitation."

22 His Worship's sentencing remarks were quite brief and it is probably convenient that I set them out in full. His Worship said at p 11 of the appeal book:

"Mr Dicks, you present a difficult sentencing option. You've had the benefit of - - sorry, you come before the court in relation to a serious charge of attempting to obtain the sum of $7000 by deceit. You have a poor record in relation to offending and your previous performance on community based orders is not good. Your financial position is clearly such that it is pointless to impose fines in relation to this matter. In relation to community based options, as I said, your record is poor, although you are now receiving, it appears, some assistance from - - by way of psychological treatment and you have, it appears, made progress in that regard.

However, there is very little, it appears, that community corrections can offer you in terms of matters and it seems to me at the end of the day, your record, in terms of re-offending, means that, unfortunately, the point has been reached where imprisonment becomes the only option that I feel is available. You'll be sentenced to 12 months' imprisonment with eligibility for parole with respect to this matter."

23 The complaint refers only to s 409(1)(a) of the Criminal Code (WA), which is a charge of the completed offence of obtaining property from any person by deceit or any fraudulent means with intent to defraud. This offence with which the appellant was charged was of course attempting to obtain finance. Under s 555(2)(a) of the Criminal Code the punishment to which a person is liable on being convicted summarily of attempting to commit such an offence is the punishment to which a person convicted summarily of that prescribed offence is liable.

24 The punishment applicable to the offence itself under s 409(1) of the Criminal Code on summary conviction is imprisonment for 2 years or a fine of $8000, and so the maximum punishment open to his Worship in respect of this offence was 2 years' imprisonment or a fine of $8000.

25 The appellant's previous history is quite extensive. It ranges from convictions in the Children's Court from January 1977 through to convictions in that Court in March 1982. Those convictions include offences of breaking and enter with intent, stealing and fraud by a trick. As an adult, the appellant has had numerous convictions in Courts of Petty Sessions and in one instance in the District Court ranging from September 1982 through until December 1994. Again, these offences are almost exclusively offences of dishonesty. They include obtaining by false pretences, stealing or receiving, obtaining credit by fraud, imposition, forgery and entering a dwelling with intent, as well as breaches of probation and one offence of possessing cannabis.

26 He has an extensive motor vehicle or traffic conviction record which on the face of things ordinarily would have little bearing when a person is being considered in the context of the appropriate punishment to be imposed with respect to criminal offences or fraud or otherwise. What they do indicate, however, is perhaps an attitude of the appellant towards the law and a clear disregard on his part for certainly the requirements of the road traffic law. They have, I think, no relevance beyond that.

27 Mr Lindsay, who appears for the appellant, has urged upon me, amongst other things, that in relation to the appellant's record it stops in 1994, and in light of the community corrections officer's comment that he was not able to access the New Zealand records to ascertain whether or not there had been any offending in New Zealand, the position should be that the appellant should be treated as someone who has not offended since 1994.

28 The respondent counters this by the submission made by Mr Gvozdin that it should not be correct to say that the appellant should be treated as having not offended since 1994 simply because the Court has not been supplied with any information about whether there was any offending conduct by him whilst he was out of the jurisdiction. What it would be correct to say (he submits) is that apart from the offence the subject of this appeal, the appellant has not offended in this jurisdiction since his return in approximately 1998.

29 I do not accept the respondent's submission on this. There are no convictions alleged against the appellant since 1994, and in my view he must therefore be treated as not having offended since that time.

30 I turn now to the substantive disposition of the appeal. The principles to be applied on an appeal of this kind are quite clear. There must be shown an identifiable error of law or fact on the part of the Magistrate so as to show an error or a wrong exercise of his sentencing discretion. Alternatively if that is not possible, it must be demonstrated that the end result is so inappropriate or excessive or in other circumstances inadequate as to indicate that there must have been an error of principle even though that cannot be specifically identified (see House v The King [1936] HCA 40; (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386; and Weng Keong Chan (1989) 38 A Crim R 337).

31 The appellant here asserts, as I understand the submissions, really both of these propositions; first of all that there is an identifiable error on the part of his Worship in that he can be shown, so Mr Lindsay says, not to have considered the possibility of a suspended sentence as he is required to consider under the provisions of the Sentencing Act 1995 (WA), and further, or alternatively, the imposition of a sentence of 12 months' imprisonment in the circumstances of this case was in any event so excessive as to demonstrate error.

32 As to the first of those, it is clear that his Worship did not actually mention the consideration of a suspended sentence nor the possibility of imposing one.

33 The difficulty occasioned by courts not referring comprehensively or at least specifically to all of the factors taken into account on sentencing or to the principles which are being applied has been referred to on any number of occasions in this Court.

34 Most recently I had occasion to consider the position in Rowlands v Caporn [2001] WASCA 66 where at [49] I referred to the case of Nevermann (1989) 43 A Crim R 347 at 350 in which Malcolm CJ pointed out that:

"Although an appellant in the community has the right to know the reasons for a sentence which is imposed, it is not necessary to give full or detailed reasons in every case."

35 Similar observations were made by Wallwork J in Keatley v The Queen [2000] WASCA 30 upon which Mr Gvozdin relies. There are other cases referred to at [51] and following of the decision in Rowlands v Caporn.

36 As I understand it, Mr Lindsay recognises that it is not necessary in every case for a sentencing court to give an exhaustive analysis of the sentencing process and the facts and principles being taken into account. What he does say however is that in the context of this case, it is apparent from a reading of his Worship's sentencing remarks that his Worship was purporting to enumerate the particular sentencing options he considered open to him and to express, albeit briefly, his reasons for not regarding them as appropriate to the appellant, other than of course when he got to the point of considering an immediate term of imprisonment.

37 In this regard Mr Lindsay has referred to and relies upon the case of Danagher and Ors v Racing Penalties Appeal Tribunal (1995) 13 WAR 531, and in particular to what was said by Rowland J in that case at 540.

38 The facts of that case are not presently pertinent. It happened to be an appeal in effect by way of prerogative writ against the decision of the Racing Penalties Appeal Tribunal and there was necessary consideration of what was the error of law on the face of the record before that tribunal. In that regard, Rowland J said at 540:

"The relevant question here is" 'Does the failure to give reasons disclose error on the face of the record?', and I assume that reasons are included in the record. Counsel for the applicant said 'yes', if the failure to mention a reason for some significant finding may lead to 'a logical inference, towards suggesting that the Tribunal has failed to consider those issues', per Stephen J, with whom Gibbs J agreed, in Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 682. And see Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, per Sheppard J, which was referred to with approval by Kennedy J, with whom Franklyn and Wallwork JJ agreed, in Baroque Holdings Pty Ltd v Aljohn (1982) Pty Ltd (unreported, Supreme Court, WA, Full Court, Library No 940368, 20 July 1994) at 15-16. In my view, it is apparent from the debate at the stewards' inquiry what the reasons were for the Tribunal's finding which, in turn, impinged upon the finding of the Tribunal."

39 In the context of the present appeal, then, it seems to me that if a court gets to the option of imprisonment it would normally be at least prudent, and on some occasions will be essential, to expressly refer to the option of suspension and state why it is or is not appropriate. Perhaps some such observation will most appositely be required when it is concluded that suspension is not appropriate.

40 It seems to me there is merit in Mr Lindsay's submission that in the context of this case his Worship was purporting to enumerate the individual options to which he was having regard and he clearly failed to mention that of suspended imprisonment. That does, I think, give rise to the logical inference which is mentioned in Danagher that his Worship failed to consider it and I am accordingly persuaded that he did fail to consider that option.

41 In that circumstance it is clear that the sentencing discretion miscarried and the appeal must be allowed. What follows from that then is that it falls to me to resentence the appellant. Having regard to the seriousness of the offence and the deliberate and preplanned and prepared nature of it, involving as it did the preparation of false or forged documentation to obtain the loan, it seems to me that that particular aspect places this offence as quite a serious example of its kind and I bear in mind here, of course, also that it is in fact an attempted offence rather than the completed offence.

42 In making these observations about the planning and the false or forged documentation prepared for it, I am of course mindful that the appellant has not been charged with offences of forgery or falsification of documents or uttering forced documents and he is not to be punished for offences of which he has not been charged. Nonetheless, those circumstances are pertinent to the way in which this particular offence was committed and are indicative, as I have mentioned, of a degree of planning and premeditation.

43 I think the appellant's extensive record of convictions, although there have been none since 1994, and his past performance on community based orders and probation are extremely discouraging. I think in all the circumstances in the context of that background and the nature of this particular offence, imprisonment would be and is the only appropriate course.

44 I would have thought the starting point here would be a sentence of 12 months' imprisonment which would reflect the circumstances of the offence and the appellant's own background and antecedents. As to those in particular, I would be prepared to reduce that term to 9 months having regard to the mitigating circumstances of his background, his financial circumstances and the other matters referred to by the community corrections officer and a psychologist. In addition, I think the otherwise appropriate term should be reduced by 3 months for the appellant's plea of guilty which would leave a sentence of 6 months' imprisonment.

45 In accordance with the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 I take all of those circumstances into account again. Having done so, it seems to me that there is, particularly having regard to the seriousness of the offence and the appellant's previous performance on community based orders and probation and the like and notwithstanding the somewhat optimistic observations made by Ms Kate Orr, no proper basis for suspending that sentence.

46 I am conscious of Ms Orr's comments in particular in relation to the appellant's prospects of rehabilitation and also as to his potential for self-harm but I am of the view that a suspended term of imprisonment in his circumstances would serve no real purpose and I consider his whole history of past orders gives a clear indication that suspension would not be appropriate. In my view immediate imprisonment is the only appropriate option.

47 The orders will accordingly be that the appeal will be allowed. The sentence of 12 months' imprisonment will be set aside and a sentence of 6 months' imprisonment substituted.

Dicks v Farrell [2001] WASCA 124

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Dicks v Farrell [2001] WASCA 124 (2 April 2001)

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