Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Whether failure to backdate sentence - Whether failure to consider psychiatric report - Whether failure to give discount for guilty plea - Totality - Turns on own facts

Sentencing Act 1995 (WA), s 7(2), s 87

Gullello v The State of Western Australia [2011] WASCA 261

Moody v French [2008] WASCA 67

Narkle v Hamilton [2008] WASCA 31

Roffey v The State of Western Australia [2007] WASCA 246

Wheeler v The Queen [No 2] [2010] WASCA 105

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 McLURE P: This is an application for leave to appeal against sentence. On 14 March 2011, the appellant was convicted on his own plea of guilty of 16 counts of fraud contrary to s 409(1) of the Criminal Code (WA) (the Code) and three counts of attempted fraud (the State fraud offences). This was in satisfaction of an indictment containing 30 counts.

2 The appellant was sentenced by Macknay AUDCJ on 17 June 2011 to 18 months' imprisonment on count 25 and 6 months' imprisonment on each of the other counts. He ordered all the sentences to be served concurrently with each other. At the time of sentencing the appellant had spent 231 days in custody in respect of the State fraud offences and for no other reason.

3 Further, at the time of sentencing for the State fraud offences, the appellant was already serving a sentence of 20 months' imprisonment with a minimum of 14 months, commencing from 4 February 2011, for Commonwealth fraud offences. The sentences for the State fraud offences were ordered to be served partly cumulatively with the sentence for the Commonwealth fraud offences. The sentencing judge said:

I direct that the sentence first imposed [18 months on count 25] commence on 16 August next [2011]. The effect of that will be then ... that you will have served seven and a half months of that prior to 3 April, so that sentence will in effect be served concurrently with the sentence imposed by the magistrate.

By so structuring the sentence, I give you therefore credit for the seven and a half months that you have already served and you will then have to serve another six weeks before being eligible for parole, as I direct there [be] parole eligibility (ts 106).

4 The minimum period before being eligible for release on recognisance for the Commonwealth fraud offences expires on 3 April 2012. The sentencing judge took into account the 231 days (approximately 7 1/2 months) the appellant had spent in custody for the State fraud offences by ordering that 7 1/2 months of the total sentence of 18 months for the State fraud offences be served concurrently with the sentences for the Commonwealth fraud offences. Further, the appellant will become eligible for parole for the sentences imposed for the State fraud offences six weeks after the expiration of the minimum period of 14 months for the Commonwealth fraud offences. The maximum period for the State offences expires just over four months after the expiry of the maximum period of 20 months for the Commonwealth fraud offences.

5 The facts, in brief, are as follows. Between September 2008 and September 2009, the appellant wrote cheques drawn on five bank accounts he controlled in circumstances where, to his knowledge, there were insufficient funds. The appellant's intention was to gain goods, services or a credit balance in a bank account. On one occasion he used a debit card rather than a cheque. In addition, the appellant entered into a rental agreement and a lease and purchase agreement on the strength of false promises as to payment. He also obtained two loans through similar falsehoods.

6 The appellant's personal circumstances were noted to be as follows. The appellant was at the time of sentencing aged 49, married but separated with two children aged 11 and 6. He was born in Egypt and came to Australia in about 2000. He has a criminal record, having been given a suspended sentence of 18 months for fraud offences in 2001. In 2008, he was convicted of fraud and other dishonesty offences for which he was sentenced to 26 months' imprisonment. Reference has already been made to the convictions for the Commonwealth fraud offences.

7 The appellant, who is self-represented, relies on nine grounds of appeal. In substance, he claims the sentencing judge erred in (1) failing to backdate or reduce the sentence for the 231 days the appellant spent in custody on the State fraud offences; (2) failing to consider Dr Febbo's report; (3) failing to give any discount for his plea of guilty; and (4) imposing a crushing sentence.

8 The appellant contends the sentencing judge erred in failing to backdate or reduce the sentence for the State fraud offences which he says is required by s 87 of the Sentencing Act 1995 (WA). The purpose and effect of s 87 was considered in detail by this court in Narkle v Hamilton [2008] WASCA 31 [28] - [43]. The court said:

The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time and if so, how much of an allowance it will make. Even in a case in which the time was spent in custody in respect of the offence in question and for no other reason, the court does not have to give credit for the whole of the time spent in custody ... The manner in which the discretion is exercised will depend upon the individual circumstances of each case [40].

9 Credit can also be given for time spent in custody by mechanisms other than backdating or reducing the length of the sentence imposed. It can, for example, be taken into account in deciding whether and to what extent to order concurrency: Gullello v The State of Western Australia [2011] WASCA 261 [14] - [22]. That is what happened in this case.

10 The sentencing judge expressly indicated his intention to give credit for the time the appellant had spent in custody for the State fraud offences. He did so by ordering that 7 1/2 months of the total sentence for the State fraud offences be served concurrently with the sentence for the Commonwealth fraud offences. The course taken by the sentencing judge was an appropriate exercise of the sentencing discretion. This ground has no reasonable prospect of succeeding.

11 The appellant contends that the sentencing judge ignored Dr Febbo's psychiatric report. It is as plain as a pikestaff that the sentencing judge gave close consideration to Dr Febbo's report. He makes extensive reference to it in his sentencing reasons (ts 104 - 105). As has been explained many times in this jurisdiction, mental impairment may have both positive and negative influences in determining the appropriate sentence: Wheeler v The Queen [No 2] [2010] WASCA 105 [5] - [10]. The presence of a mental impairment may (not must) reduce the need for general deterrence but increase the need for personal deterrence and protection of the public. Having regard to the appellant's history of dishonesty offences, considerable weight needed to be given to personal deterrence. That approach does not contravene s 7(2) of the Sentencing Act which provides that an offence is not aggravated by the fact that the offender has a criminal record: Gullello [38] - [41]. This ground has no reasonable prospect of succeeding.

12 The appellant contends the sentencing judge failed to give him any credit for his plea of guilty. The assertion is expressly contradicted in the sentencing judge's reasons. He expressly notes that the appellant was entitled to some credit for his plea of guilty (ts 105). He did not specify the extent of any reduction but he is not obliged to: Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [41].

13 The amount of a reduction for a plea of guilty is discretionary, with sentencing judges having a wide measure of latitude in that regard: Moody v French [2008] WASCA 67 [37]. There is no proper basis for the appellant's assumption that he was entitled to a discount within the range ordinarily given for a fast-track plea of guilty. This ground has no reasonable prospect of succeeding.

14 The appellant contends the sentence is crushing. The second limb of the totality principle is that the court should not impose a crushing sentence, which in context denotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [25]. There is no arguable basis for a claim that the appellant's total sentence of 18 months to be served partly concurrently with his existing sentence is crushing. This ground has no reasonable prospect of succeeding.

15 None of the proposed grounds of appeal have any reasonable prospect of succeeding. Accordingly, leave to appeal must be refused on each ground and the appeal dismissed.