Criminal law and procedure - Appeal - Sentence - Stealing - Fraudulently obtaining a benefit - Sentencing Judge of opinion offences would not normally carry imprisonment - Imprisonment imposed - Aggregate term of 3 years 4 months - Concession by respondent that appeal should succeed - Resentencing - Fines substituted for those offences - Time in default already served

Sentencing Act 1995 (WA), s 59

Damiani v The State of Western Australia [2006] WASCA 47

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Repacholi (1990) 52 A Crim R 49

R v Vale [2001] WASCA 21; (2001) 120 A Crim R 322

1 ROBERTS-SMITH JA: The appellant in this matter was sentenced in the District Court on 28 July 2005, following trial before her Honour Judge Yeats and a jury.

2 The appellant was convicted together with a co-offender Leon Atkinson. The indictment charged both of them in count 1 with an offence that, on a date unknown between 1 January and 3 July 2002, at Bunbury, they stole three televisions, two videos, a fridge and an air-conditioner, the property of Cardwell Holdings Pty Ltd, trading as Cardwell Finance. Count 2 on the indictment charged the appellant with an offence that, on or about 7 May 2002, he stole an LG rear projection television, the property of Cardwell Finance. Count 3 charged them jointly with an offence of, between 8 May and 26 June 2002, with intent to defraud by deceit or fraudulent means, gaining a benefit, namely $380 in money and jewellery, for themselves. Count 4 on the indictment charged them jointly again with an offence of, between 8 May and 6 June 2002, with intent to defraud by deceit or fraudulent means, attempting to gain a benefit, namely $16,458 in money, for themselves.

3 The appellant filed an appeal notice on 20 October 2005, in which he also sought an extension of time. On 20 January 2006 I granted the extension of time and gave leave to appeal. The grounds of appeal are:

"1. The Learned Sentencing Judge erred in imposing a term of imprisonment in relation to Count 1

Particulars

(a) The Learned Sentencing Judge made observations that count 1 would not normally attract a term of imprisonment

(b) In those circumstances a period of imprisonment was inappropriate

2. The Learned Sentencing Judge erred in imposing a cumulative term of imprisonment in relation to count 1

Particulars

(a) The Learned Sentencing Judge made observations that count 1 would not normally attract a term of imprisonment

(b) In those circumstances a period of cumulative imprisonment was inappropriate

3. The Learned Sentencing Judge erred in making the sentences for counts 3 and 4 fully cumulative

Particulars

(a) Counts 3 and 4 arose out of the same set of circumstances in that both were insurance claims on the same plaint, relating to property alleged to have been stolen in the same 'burglary' staged by the Appellant and his co-offender

(b) In those circumstances the Learned Sentencing Judge ought to have made those terms partially, if not fully, concurrent"

4 The respondent has conceded the appeal should succeed on grounds 1 and 2. On that indication (in the respondent's written submissions filed 29 March 2006), at the hearing before us yesterday, Mr Freitag informed the Court that his instructions were that if the Court were to accept the State's concession he would abandon ground 3; that is because the respondent further conceded that the sentences imposed in respect of counts 1 and 2 should be served concurrently with each other and concurrently with the sentences imposed in respect of counts 3 and 4 and that accordingly under the circumstances the resulting sentence would be one of 20 months' imprisonment. The parole period of that would by now virtually have been served.

5 The fact that a respondent concedes a ground of appeal and that a conviction or sentence should be quashed is of course not determinative. It is certainly a strong factor to be taken into account but the statutory responsibility for the determination of an appeal lies with the Court which in the case of an appeal against sentence means the Court can only, but indeed then must, allow the appeal if in the opinion of the court a different sentence should have been imposed: see s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

6 I turn then to consider whether the material before us leads to that opinion, and I commence with reference to her Honour's sentencing remarks. Her Honour dealt firstly with the offender Atkinson and then with the appellant. In broad terms, she indicated that the offences in counts 1 and 2 occurred in the first half of 2002, and the evidence showed that over a period of time commencing as early as the year 2000 the offenders entered contracts with the firm Cardwell Holdings which involved mortgages over goods obtained by them.

7 There were a number of contracts and the offenders were obliged to make monthly payments under them in repayment for the value of the goods. During the first half of 2002 the appellant and his co-offender had been operating a cafe at Bunbury Village but subsequently decided to set up another cafe called the V Cafe in the central part of Bunbury.

8 It was in the course, and for the purpose, of so doing that on 12 February 2002 they leased a large number of white goods and electrical appliances through Cardwell Finance. Those items included a number of televisions sets, sofas, a rear projection television, a stereo video, a Yamaha amplifier and some speakers.

9 The contract was a credit contract which meant that the goods themselves were the property of the offenders but until they paid out their credit contract or lease Cardwell Holdings had an interest in the goods, and under the terms of the contract if there was a default in making payments Cardwell Holdings could repossess the goods and sell them.

10 In relation to count 1 what happened was that towards the end of June the proprietor of Cardwell Holdings telephoned the offenders because they had defaulted. He made arrangements to collect the various items held under the terms of the various mortgages. When the goods were picked up on 2 July 2002 it was found there were seven items missing. Those were the subject of count 1.

11 As her Honour recognised, it was not possible to value the property itself. The appellant and his co-offender had been convicted of stealing by conversion the special property which Cardwell Holdings had in the goods. Some of the items had been under contract for 18 months or so and many payments had been made, so as her Honour indicated, there would be little special property, although in them the special property in a number of the television sets was extensive. In those circumstances her Honour expressly said she did not estimate the value of the special property in count 1.

12 Count 2 concerned only the appellant. He had hired a young woman who was about six months pregnant to assist in the setting up of the V Cafe. She was apparently on welfare payments, and while receiving those payments worked for the offenders for two to three weeks, for about 10 hours each week at $10 an hour. She was, it appears, owed $250 or $300 by the offender.

13 What occurred then was that the appellant arranged for her to take the large rear projection television set in which Cardwell Holdings had a special interest in lieu of wages on condition that she also give them $500 and her own television set (valued at $2500).

14 The offences in counts 3 and 4 occurred between 8 May and 26 June 2002. The appellant and his co-offender went to Perth over that period but created a false impression that during their absence their house had been burgled. They broke a kitchen window, dumped drawers and did other things to the property to indicate disarray. When they returned they called the police and reported that the place had been burgled. The attending police officer became suspicious, took photographs and made a report, reporting those suspicions. He thought it was possibly a staged burglary. In the meantime the insurance company, RAC, received a claim from the offenders for special risks insurance. It covered jewellery items and some sunglasses.

15 Her Honour made the finding that although it was Atkinson's claim because he was the holder of the policy, she was satisfied that both of the offenders worked together on making it and that it was a fraudulent claim. As a result of it the RAC immediately paid out without checking with the police and the offenders received $380 in money and more than $3000 in jewellery.

16 In relation to count 4 the circumstances as indicated by her Honour were that in the meantime the offenders also put in a claim under the home and contents aspect of their insurance policy for $16,458 in money in which they claimed covered items that had been stolen. They included items listed as part of count 1 on the indictment which included two televisions and two videos, being the subject of that charge.

17 A Mr Connor came to investigate that claim three weeks later but, having spoken to police, he declined to approve payment of the claim and subsequently the offenders were charged with these offences. That is why count 4 on the indictment was a charge of an attempted fraud.

18 Her Honour then dealt with the personal circumstances of each of the offenders. Given the concession made by the State in this case and as a consequence the need for us to resentence should we accept the concession and the submissions advanced, it is necessary I think to briefly refer to some of the aspects to which her Honour referred as to the background and circumstances of the offenders.

19 She pointed out that Atkinson was still a very young man, 25 years of age, with no prior record for any offending. He had worked since he finished school. At the age of 18 years, some seven years earlier, he met the appellant. They became partners, living together and sharing everything. They went to Bunbury where they worked at a number of businesses and, as I have indicated, ran the Bunbury Village cafe which was apparently quite successful, although the V Cafe certainly was not.

20 Since the offences in 2002 Atkinson had led a blameless life and had not been involved in any offending. At the time of sentencing, namely July 2005, he was working at a hotel in Perth as a management trainee and it had been put to her Honour, which she seemed to accept, that his offending in this case was out of character. She expressed a view that it seemed more to her that he had cast his lot with the appellant. She did not consider that Atkinson was the leader but, rather, he had been following the appellant.

21 She then turned to the appellant, noting that at that time he was 34 years of age with no previous drug convictions, but he does have a number of prior minor convictions for stealing and fraud, including convictions in 1993 for 14 frauds. Her Honour noted that all of those had been dealt with by fines in the Court of Petty Sessions. She accepted that the appellant is a man who appeared extremely talented. He was born in Collie, did well in a course in the hospitality industry, joined the navy and went eventually to the Royal Military College where he undertook the international butlers course, eventually becoming head valet at Kirribilli House.

22 In 1991 he was discharged from the navy because of his sexuality. Since that time he has had a good work history and up until the time of sentence had a restaurant in Northbridge. He had continued to study while running the Bunbury Village. He was very popular at the Lighthouse Hotel, and the former owner had written a letter commending him. At the time he was also teaching hospitality courses at Mandurah and was living in Ellenbrook.

23 As part of the background of the offences her Honour noted that he had become extremely ill right at the time that the cafe failed, to the extent that he ended up with pneumonia, experiencing severe difficulty with his lungs, and had to be flown by Royal Flying Doctor Service from Bunbury to Royal Perth Hospital, where he was hospitalised for the best part of a month. Following that, when the police were able to find him, he was arrested and charged with the subject offences.

24 Since then he had been working in the telecommunications industry and studying for a diploma in education and also lecturing in cooking at Fremantle TAFE. Her Honour accepted that he had been offence free for three years and that the offences arose when each of the offenders were under considerable financial stress.

25 Her Honour then went on to turn to the question of sentence. She noted that the offence of stealing in count 1 was a serious matter because it involved a defeat of Cardwell's special property interest in the items. It meant that Cardwell Finance was unable to repossess items that they had a right to repossess and so were unable to sell them to recover their money. Her Honour then added (AB 52):

"But I would have to say that this offence standing alone would not be an offence that would necessarily require imprisonment.

The accused men were clearly in financial trouble at the time. In one sense it's a serious matter to convert mortgaged goods to your own use but if they had been able to continue to make the payments under the mortgages Cardwell Finance would not have had any right to repossess or sell the goods and the stealings would never have come to light. I consider count 2 to be a more serious offence of stealing because it involved converting the large rear projection TV at the expense of the woman Nicole Campbell."

"In this case the serious offences are counts 3 and 4 on this indictment because they involve what I consider to be a well-planned fraud on the insurance company involving false reports to the police, involving quite an elaborate attempt at a fraud and it was only because of the suspicions of experienced police officers that the offenders were not able to gain some $20,000 which they stood to gain on the two separate insurance claims."

27 Her Honour then continued to observe that because of the pre-planning, the elaborate arrangements, the maintenance of the fraud, the lies and the deceit, those offences did require sentences of imprisonment "because of the need in this sort of fraud for both personal and general deterrence" (AB 53). In the event, she then sentenced Atkinson to 12 months' imprisonment on count 1, to 12 months on count 3, and 8 months' imprisonment on count 4.

28 She then, because of his prior good record and youth and because she did not consider him to be the leader, ordered those terms of imprisonment be suspended.

29 In relation to the appellant, her Honour sentenced him to 12 months' imprisonment on count 1, to eight months' imprisonment on count 2, to 12 months' imprisonment on count 3, and eight months' imprisonment on count 4, making a total of three years four months. She ordered that they be immediate terms of imprisonment and that he be eligible for parole.

30 Dealing now with ground 1, the problem is immediately apparent when one has regard to her Honour's comment that she would have to say that the offence represented in count 1 standing alone would not be an offence that would necessarily require imprisonment. Section 39(3) of the Sentencing Act 1995 (WA) stipulates that a Court must not use a sentencing option in subs (2) unless satisfied having regard to Div 1 of Pt 2 of that Act that it is not appropriate to use any of the options listed before that option.

31 I would accept the appellant's submission that her Honour's reasons indicate that she felt it was ordinarily appropriate for this matter to be dealt with other than by way of imprisonment. This submission is reinforced by the provisions of s 6(4) of the Sentencing Act which stipulates that 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.

32 In light of her Honour's observation, it is clear that she was not of the view that the seriousness of this particular offence warranted imprisonment standing alone. It could not attract a different assessment of culpability merely because it was an offence which was one of a number of offences on an indictment. Likewise, her Honour's remarks about the difficulty or indeed impossibility of valuing the special property represented in count 1 reinforces the conclusion that it was not an offence which necessarily attracted imprisonment as the only appropriate disposition. That appears not to have been her Honour's view, considering that offence by itself or indeed in connection with count 2.

33 In Pearce v The Queen (1998) 194 CLR 610 at [45], McHugh, Hayne and Callinan JJ said that a Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality.

34 Having regard to her Honour's observation to which I have referred, the correctness of which the State accepts, it was clearly inappropriate for her Honour to then impose a term of imprisonment in respect of count 1.

35 The respondent accepts that the offence comprising count 2 occurred as part of the one course of criminal conduct to which the "one transaction rule" would apply, citing Damiani v The State of Western Australia [2006] WASCA 47 at [46] per McLure JA.

36 That is so, but in my view there is a further consideration, which is that her Honour took the view that the offence in count 1 was less serious than count 2, and in that circumstance it was incongruous and clearly inappropriate for her Honour to impose, as she did, a more severe sentence in respect of the former than in respect of the latter.

37 It does appear that her Honour imposed sentences of imprisonment in respect of both counts 1 and 2, not because the circumstances of those offences warranted imprisonment, but because the offences in counts 3 and 4 were so serious as to require imprisonment. That was an error in principle. Furthermore, as I have just indicated and accepting as I do her Honour's assessment of the relative seriousness of the offences, I agree with her that the circumstances of count 1 were not such that only a term of imprisonment was appropriate. I also agree with her Honour's view that the circumstances of count 1 were less serious than count 2, so my observations apply with even greater force to that.

38 Dealing with count 2, the appellant's submission is that where an offence is arguably not worthy of imprisonment on its own it is inappropriate for that offence to result in a cumulative term of imprisonment when combined with other offences. That submission must be accepted.

39 The State's submission likewise must be accepted, that being the one to which I have already referred, namely that both offences occurred as part of the one course of criminal conduct to which it would be appropriate to apply the "one transaction rule".

40 I am persuaded the State's concessions in respect of grounds 1 and 2 are properly made and that a different sentence should have been imposed in respect of counts 1 and 2. That being so, the appeal must be allowed and it falls to this Court to pass the sentences which should have been imposed.

41 In light of this conclusion, ground 3 is to be taken as abandoned and it is not necessary to deal with it.

42 As to resentencing, the respondent submits that whether the appellant's offending be characterised as one transaction or a continuing episode, the total sentence imposed by her Honour in respect of counts 3 and 4 was an appropriate measure of the criminality involved in the conduct. It is submitted the appellant and his co-offender deliberately created and contrived the appearance of a burglary at the premises, involved police officers in investigating the burglary, and then submitted false claims to an insurance company with the object of deriving financial benefit.

43 It is submitted her Honour was entitled to impose a total sentence that contained a measure of general and personal deterrence and that the total sentence (it is said of 18 months but in reality it was 20 months' imprisonment) imposed for the conduct giving rise to counts 3 and 4 was within the exercise of an appropriate sentencing discretion. I take the submission in effect to be that that disposition is one which ought not to be interfered with by this Court.

44 It is then submitted that on the basis that the Court will accept the State's concession with respect to counts 1 and 2, the sentences imposed in respect of those counts should be served concurrently with each other and concurrently with the sentences imposed in respect of counts 3 and 4. As I pointed out to Ms Petrusa at the hearing yesterday, these submissions embody an inconsistency in that the respondent's concession is that imprisonment was not an appropriate penalty at all in respect of counts 1 and 2. Under those circumstances it would be inappropriate to again impose terms of imprisonment even if they were ordered to be served concurrently with the other sentences.

45 Both counsel submitted yesterday that the appropriate and indeed the only possible disposition now in respect of counts 1 and 2 would be a fine. I consider that to be so. The situation, however, is not free of complication. Be that as it may, what her Honour could and should have done in my view was impose fines and make orders under s 59(1) of the Sentencing Act, that if the offender did not pay the fines before a date set by the Court the offender was to be imprisoned until his liability to pay the fines was discharged either by payment or by him serving the period of default imprisonment prescribed by s 59 and the Regulations.

46 Section 59(8) provides that any period of imprisonment that an offender has to serve as a result of an order under s 59(8)(1) is to be served cumulatively on any term of imprisonment that the offender is serving or has to serve unless the court orders otherwise. Accordingly, her Honour would have had the power to order the period of default imprisonment be served concurrently with the sentences of imprisonment in respect of counts 3 and 4. Had that order been made, the time in fact served by the appellant from the date of sentence to today would represent a fine of approximately $42,000.

47 In this case, community based orders could not have been made because the appellant was also being sentenced to a term of 20 months' immediate imprisonment. Intensive supervision orders could not have been made because no pre-sentence report was ordered (see s 68 of the Sentencing Act) and suspended terms of imprisonment could not have been imposed because, by s 76(2) of the Sentencing Act, that option is precluded where imprisonment would otherwise not be appropriate which, as the State concedes, it was not here.

48 In my opinion, having regard to these considerations and to the nature and circumstances of the offences the subject of counts 1 and 2 and to the appellant's personal antecedents and background, in the exceptional circumstances as they are here seen to be, the punishments which should have been imposed by her Honour were a fine of $2000 on count 1 and $1500 on count 2, with orders in each instance that payment be made by 29 July 2005; failing such payment the appellant be imprisoned under s59(1) of the Sentencing Act for the statutory default period and that pursuant to section 59(8) the periods of default imprisonment be served concurrently with each other and with the sentences of imprisonment imposed in respect of counts 3 and 4.

49 Had those orders been made on 28 July 2005, the appellant would now have well served his default periods of imprisonment.

50 I would accordingly allow the appeal, set aside the sentences of imprisonment on counts 1 and 2 and in lieu thereof substitute the fines and make the orders I have just outlined with a further order that they take effect from the original date of sentence; namely, 28 July 2005.

51 PULLIN JA: I agree that the appeal in respect of counts 1 and 2 should be allowed and the sentences of imprisonment quashed for the reasons given by Roberts Smith JA. In the circumstances I agree that the fines and other orders proposed by his Honour are the appropriate disposition.