Ensor v R

Court of Criminal Appeal (NSW)|2022-10-17|Before: Meagher JA, Button J, Wilson J, Design Coordination P

Judgment

MEAGHER JA: I have had the benefit of reading the judgment of Wilson J in draft. At the end of the argument on 17 October 2022 the Court made an order refusing leave to the applicant to file out of time his application for leave to appeal from the sentence imposed on 25 January 2019. My reasons for agreeing in that order are the same as those given by Wilson J.
BUTTON J: The judgment of Wilson J reflects my own reason for joining in the order of the Court on 17 October 2022.
WILSON J: On 25 January 2019 sentence was imposed upon Benjamin Ensor, the applicant, for eight offences of obtaining a financial advantage from the Commonwealth by deception contrary to s 134.2(1) of The Criminal Code (Cth) ("the Code"). An aggregate sentence of 6 years imprisonment commencing that day was imposed; a non-parole period ("NPP") of 4 years was specified. The applicant will be eligible for parole on 24 January 2023.
On 1 May 2022 the applicant filed a notice seeking leave to file a notice of appeal after the expiration of the filing period. The associated notice of appeal was filed on 11 July 2022, well over 3 years out of time.
Having considered the evidence and submissions before it on 17 October 2022, the Court made an order refusing leave to the applicant to file out of time an application for leave to appeal from the sentence imposed on 25 January 2019, reserving its reasons.
These are my reasons for joining those orders.

The Crown relied upon an Agreed Statement of Facts that had been signed by the applicant as accurate, and the sentencing judge ultimately accepted the facts as outlined.
By way of brief summary, the eight offences on indictment involved the applicant, between about 6 March 2008 and about 11 February 2011, filing 77 false Business Activity Statements ("BAS's") on behalf of 8 proprietary companies, thereby dishonestly obtaining monies paid by the Commonwealth as Goods and Services Tax ("GST") refunds. In the period between about 18 December 2009 and 23 March 2011 the applicant committed the 12 offences taken into account on five s 16BA schedules by attempting to obtain fraudulent GST refunds to five proprietary companies, by the same means.
The offences carried a maximum penalty of 10 years imprisonment.
Over the period of about three years covered by the charges the applicant had caused 89 false BAS's to be lodged with the Australian Taxation Office ("ATO") on behalf of 9 proprietary companies of which he became the sole director and secretary after discharge from bankruptcy in March 2007.
The BAS's purported to record legitimate business expenditure by the companies over the period 1 January 2008 to 28 February 2011 totalling $24,016,909, in circumstances where they claimed to have sales totalling $290,453. The expenditure claims were false, and the companies were not entitled to receive refunds of GST.
As a result of these false representations contained in the BAS's lodged, the ATO paid the applicant refunds of GST totalling $1,884,263.90 and stopped further GST refund payments, totalling $395,454, directed to bank accounts controlled by him.
The refund payments resulting from the fraudulent lodgements were directed to various Westpac Bank and Bank of Queensland accounts in the name of each of the entities that were controlled solely by the applicant. He used the fraudulently obtained monies to meet expenses incurred while developing five beachfront luxury apartments in Manly; funding the purchase of a Marina on Lake Macquarie; and meeting other expenditures, including the purchase of a catamaran and making loan repayments.
Usually, the refunds were withdrawn as cash across the counter, or used to purchase bank cheques.
To justify the expenditure figures reported in the BAS's, the applicant created false invoices, and negotiated the purchase of high-value excavators, trailers, trucks and catamarans, to obtain quotes or other "invoices" that could be used as evidence of expenditure.
The applicant was notified in March 2010 that the ATO was conducting an audit of the three entities for which false monthly BAS's had been lodged consistently since March 2008. He then abandoned those entities and began making false lodgements on behalf of two dormant companies that he had incorporated.
When causing false BAS's to be lodged on behalf of one of those companies the applicant intentionally failed to report the sales amounts from luxury apartments that the entity had developed and sold, in respect of which the Commissioner of Taxation was owed GST totalling $1,583,658. That was done when the applicant suspected that the entity was insolvent and would be wound up if the Commissioner sought to recover the GST liability.
The total loss to the Commonwealth of Australia was $3,467,921.90, comprised of the fraudulent refunds totalling $1,884,263.90 paid to the applicant, and unrecovered GST totalling $1,583,658.
The applicant had no criminal record, and the Crown advised the sentencing court of this.
The applicant relied upon a report from Dr Mark Milic, a psychologist; together with letters from his general practitioner and a cardiologist.
Dr Milic took a history from the applicant of his childhood in rural New Zealand as the youngest of three children to his parents, a farmer and a nurse. On completing school, the applicant studied farming and farm management and went on to conduct a successful farming enterprise. He sold his New Zealand property by 1999 and moved to Sydney, where he entered property development.
After being charged with these offences the applicant commenced a nursing degree course, but was unable to finish it due to the criminal proceedings. He reported some health issues.
Dr Milic did not suggest that the applicant suffered from any disorder, although the doctor commented that his reduced physical health would likely render his time in custody more onerous than for others.
Dr Preston, cardiologist, reported on 1 November 2018 that the applicant had "severe left ventricular dysfunction", and had had a defibrillator implanted to address the risk of cardiac failure. His prognosis was said to be excellent. Dr Skerman, the applicant's general practitioner, noted that the applicant had been free of symptoms of heart failure following cardiac treatment, although he suffered from hypertension and coronary artery disease.
In his ex tempore Remarks on Sentence Judge Hunt observed that the applicant's overall conduct represented a serious and planned systematic fraud upon the Commonwealth, that was above the mid-range of offending of its type, without falling in the high range of seriousness. There had been a degree of pre-planning including the creation of six companies, three of which were only used to facilitate fraud, and the operation of at least 14 bank accounts to receive fraudulent payments. Others had been involved in the frauds as innocent agents, although the applicant stood alone in the criminal activity. Significant dishonesty had been involved. The loss and potential loss to the Commonwealth was between $3.5 million and $4 million, and the applicant had been motivated by a desire for financial gain.
Of the subjective case his Honour noted that the applicant was [at the time] aged 57 years, with no prior criminal record. His pleas of guilty entitled him to a reduction on sentence of 10%, and evidenced a degree of remorse. His Honour concluded that the applicant was unlikely to re-offend and had good prospects of rehabilitation. The applicant suffered from a range of health difficulties, including the cardiac condition for which a defibrillator had been implanted, and problems with memory. His Honour accepted that the applicant's health generally would make his time in custody more onerous than for prisoners without health difficulties. The delay in the prosecution of the matter resulted in some diminution of sentence.

The Applications to this Court

The applicant required both an extension of time in which to bring an appeal, and leave to appeal. If granted that leave the applicant raised an overarching complaint that the sentence imposed is "manifestly severe", as well as four particularised grounds or sub-grounds numbered 1, 1, 2, and 3 in the original, corrected to sequential numbering, as follows: 1. "…[T]he sentencing Judge erred in handing down a sentence that was manifestly excessive and too severe in all regards and circumstances"; 2. "New evidence that was not available to the sentencing judge at time of sentencing (25/01/2019) regarding Covid and its effects upon jail management and prisoner health and welfare"; 3. "…[T]he judge erred on many factors and failed to give sufficient weight to key components, no prior arrests, medical evidence, prosecution admissions that 45% of the Judgement sum had been fully desk audited and verified by the ATO prior to release of funds, Judge further erred in concluding such a harsh sentence with no discretion to the quantum, or structure of sentence in relation to non-parole periods"; 4. "New medical condition and health deterioration of heart condition, due to insufficient care, [t]he heart condition was identified at [s]entencing, and we contend it to be fresh evidence. The recently identified Lung Cancer may be New Evidence, although it could be contended that as shortness of breath was recognised at sentencing that it may well be still fresh evidence as it may well be a progression and was not fully understood at sentencing".
Proposed grounds 2 and 4 will be dealt with together, since they raise similar questions; followed by ground 3; ground 1, as a claim of manifest excess, will be dealt with last.

Grounds 2 and 4

These grounds raise matters that occurred subsequent to the imposition of sentence, and which the applicant contends have seriously affected his health, adversely impacting on his experience of the custodial environment. The applicant relies upon his affidavit of 11 July 2022 and annexed material in support of these grounds. The applicant asserts both that conditions of custody have worsened generally due to the impact of the COVID-19 pandemic, and that his own health has declined markedly such that he experiences the custodial environment as harsher than he formerly did.
As to the impact of the COVID-19 virus on conditions of custody, it is understood and accepted that all prisoners have seen a reduction in the amenities available to them in custody since early 2020, and to varying degrees to date. Prisoners had been subject to quarantine periods, periods of time locked into cells, a reduction in the programmes and activities available and, importantly, a reduction or cessation of in-person visits from family and other loved ones. The harsher custodial regime in place from time to time over the last two or so years has adversely affected all persons in prison.
The applicant says that his health has significantly declined in the same period, with worsening cardiac health, and a diagnosis of terminal lung cancer. The evidence to support these assertions is largely in the form of discharge letters and related documents from occasions when the applicant has been admitted to hospital. Although there is no expert evidence to assist in fully understanding the medical documentation, it seems clear that the applicant's health is not in as dire a state as he has suggested.
The applicant appears to have been receiving appropriate treatment for his existing heart condition. The material he has provided establishes that his heart was checked by way of an electrocardiogram ("ECG") on 24 November 2021, which returned a normal finding. On 25 November 2021 the applicant was admitted to Westmead Hospital and seen in the Emergency Department, after he complained of experiencing a 20 second vibration in his pacemaker. He was examined by a cardiologist and the device was checked and found "all good". No compromise was found in the applicant's cardiac functioning. The discharge plan was for annual cardiac review.
An admission on 16 December 2021 to Prince of Wales Hospital was made after the applicant reported palpitations, reduced exercise tolerance, and fatigue. Various investigations were undertaken, and the applicant was found to have atrial fibrillation with a rapid ventricular response and some associated complications. The applicant's medication was adjusted, and he was discharged on 23 December 2021 in a satisfactory condition.
After experiencing acute onset of dizziness, the applicant was taken to Westmead Hospital on 17 February 2022, but was found on investigation to be generally well, with no cardiac symptoms.
With respect to diagnosed lung cancer the only evidence sought to be tendered is the applicant's account of having been told that he had lung cancer after a granuloma was noted on his left lung following an x-ray taken during the 17 February 2022 admission to Westmead, with a notation of "mobile echodensity" relevant to the applicant's implanted device, seen when the ECG was performed on 21 December 2021.
Neither of these reported findings establishes that the applicant has lung cancer. Other records make clear that the applicant's lungs and pleural spaces are clear.
The limitations upon the admission of evidence concerning post-sentencing events to ground an appeal against sentence have been recently summarised by Fagan J, with whom Beech-Jones CJ at CL and Harrison J agreed, in Brierley v R [2022] NSWCCA 26, at [23] - [27]: "Principles governing receipt of the evidence [23] In order to introduce evidence of the nature described above on the application for leave to appeal, the applicant must show that his case is exceptional to the usual limits of the jurisdiction and function of this Court. The limits were stated by Street CJ in R v Vachalec [1981] 1 NSWLR 351 at 353-354, as follows: "This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance court. Such cases will be rare, and the present is not among them. […] The responsibility to provide adequate and proper medical treatment for prisoners rests squarely on the shoulders of the prison authorities." [24] In R v Vachalec, the medical condition of the applicant, his need for a special diet and the expectation that his condition would cause hardship during imprisonment had been taken into account by the sentencing judge. The Court therefore declined to receive, on his application for leave to appeal, evidence to the effect that the anticipated difficulties were actually being experienced. The sentence was not disturbed. Nagle CJ at CL and Lee J concurred. [25] The central principle was reiterated by Street CJ (Moffitt P and Lee J concurring) in R v Munday [1981] 2 NSWLR 177 at 178: "It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court." [26] Exceptions have been recognised in some classes of case, subject to criteria that the Court has been at pains to circumscribe. A list of established categories of exception was given by McClellan CJ at CL in Springer v R (2007) 117 A Crim R 13; [2007] NSWCCA 289 at [3]. The underlying rationale for exceptional receipt of evidence tendered to establish a circumstance that has emerged after sentence was passed was explained by Simpson J in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [113], as follows: "[113] Too rigid an application of the principle clearly has potential to be the cause of injustice and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217." [27] In Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 at [66], Beech-Jones J identified from the cases three situations involving an offender's medical condition in which the Court has been willing to receive evidence of events that have occurred after the passing of sentence: "Firstly, where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly, where although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261; see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL). Thirdly, where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer v R)."
Nothing in the evidence advanced by the applicant falls within these principles such that it is exceptional to the usual jurisdictional limits and functions of the court.
The adverse changes in conditions of custody to mitigate the spread of COVID-19 are changes that have affected all prisoners; they are not unique to the applicant and cannot be relied upon to reduce his sentence.
The applicant's heart condition was known to the sentencing court and taken into consideration by his Honour in concluding that the applicant would find custody more onerous. The significance of the condition was understood, and it has not worsened over time. Indeed, on the material available to us, the applicant's cardiac health seems to be relatively sound, and the treatment he has received in large public hospitals of a good standard. There is nothing in the evidence presented to this Court that could justify interference with the sentence imposed.
There was no suggestion of the applicant suffering from lung cancer when sentence was imposed upon him, and the evidence does not support a conclusion that the applicant has such a condition currently. The evidence did not suggest that a granuloma is cancerous, and the applicant did not seriously contend otherwise.
The "mobile echo-density" noted on 21 December 2021 does not appear to have caused any alarm to doctors treating the applicant when it was observed. There is nothing to support the applicant's claim that this is evidence of a "tumour" in his heart.
These grounds have no foundation.

Ground 3

This ground complains of the weight afforded to particular matters by the sentencing judge, or raises a dispute with factual findings, findings that accorded with the Agreed Statement of Facts signed by the applicant at the time of sentence.
Matters connected with the weight a sentencing judge determines to afford individual features are not readily amenable to challenge on appeal, not least because they do not ordinarily fall within the categories of error given in House v The King (1936) 55 CLR 499 at 505. Within a range of sentences for a particular offence and offender "the weight to be given to the evidence and the various, conflicting, purposes of sentencing" is a matter for the sentencing judge: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].
Here the sentencing judge did not fail to consider the applicant's former good character, or the medical evidence placed before the court. He took both features into account to ameliorate the sentence to be imposed. Similarly, the plea of guilty was properly taken into account, and reflected by a discount suggested to the court by the applicant's counsel of 10%. The delay between offences and prosecution was also appropriately considered by his Honour, and had the effect of mitigating the sentence to be imposed.
As to the factual matters raised, concerning the percentage of BAS's "desk audited" by the ATO and the creation of companies and false invoices by the applicant, it is noted that the facts found by the sentencing judge were those agreed to by the applicant, and he cannot now seek to traverse them. Even if that approach was open, it could have no bearing on the sentence imposed, since it does not reduce the gravity of the offences, or the level of the applicant's culpability, to observe that he managed to deceive the ATO even through the rigours of an audit of some of the false claims submitted, using false invoices to that end and bank accounts through which the applicant received payment.
In relation to other matters asserted by the applicant, including a contention as to the means available to him to make expensive purchases, there was no evidence of those matters before the sentencing court, and an application for leave to appeal substantially out of time does not permit evidence placed before the sentencing court by agreement to be contradicted by assertion at this late stage.
The conclusions of fact reached by the sentencing judge were substantially those to which the applicant had agreed, and were open to his Honour. Matters raised for the first time here, unsupported by evidence, and in contradiction of the factual agreement, cannot be relied upon to ground an appeal against sentence.
The structure of the sentence was conventional, bearing in mind the availability of an aggregate sentence for federal offending, and does not constitute error. See generally Putland v The Queen (2004) 218 CLR 174 at 178 at [2]; DPP (Cth) v Beattie (2017) 270 A Crim R 556; and R v Delzotto [2022] NSWCCA 117 at [2]. The statement of principle given in the latter is one with which I agree.
This proposed ground has no substance.

Ground 1

This ground is a complaint of manifest excess. As ultimately argued, the sentence imposed was said to be manifestly excessive as a result of the errors asserted by grounds 2 to 4; the applicant did not make any other arguments specifically in support of this ground.
The principles that apply to a ground of this nature are well known: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
The applicant has failed to establish that the sentence imposed upon him is unfair or unjust. To the contrary, for a sustained period of planned and systematic fraud involving the loss of a substantial sum to the Commonwealth, the sentence imposed was modest.
This ground cannot be made out.

Leave to Appeal Out of Time

Rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) imposes a requirement for the applicant to obtain leave from the Court to bring an appeal out of time. It is relevant to consider both the merits of the proposed appeal, and any explanation for the delay in bringing the application: Kahler v R (Cth) [2021] NSWCCA 40 at [56]. Neither feature militates in favour of a grant of leave.
For the reasons set out above, I do not regard the application as a meritorious one that has prospects of success. As to the reason for the delay, the applicant told the Court at the hearing of the matter that he had originally filed a Notice of Intention to Seek Leave to Appeal but it was allowed to lapse. Only recently did he decide to pursue an appeal, principally because of his recent experiences in a custodial system affected by the pandemic, and in light of his concerns for his health. That explanation for the lengthy delay here is not a compelling one.

Conclusion

These are my reasons for the order made on 17 October 2022, which was: "Refuse leave to the applicant to file out of time an application for leave to appeal from the sentence imposed on 25 January 2019".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022

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