Barrick (1985) 81 Cr App R 78

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

Hayes v The Queen, unreported; CCA SCt of WA; Library No 920126; 3 March 1992

House v The King [1936] HCA 40; (1936) 55 CLR 499

R v Kite, unreported; CCA SCt of WA; Library No 950659; 1 December 1995

R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996

R v Tait (1979) 46 FLR 386

R v Wilkinson, unreported; CCA SCt of WA; Library No 960035; 25 January 1996

Weng Keong Chan (1989) 38 A Crim R 337

1 WALLWORK J: On 14 March 2000 in the District Court at Perth, the applicant was sentenced to an effective total term of 7 years imprisonment after he had pleaded guilty to 87 counts in an indictment. On 1 November 2000 the applicant applied for leave to appeal against that sentence and after hearing argument from his counsel, leave to appeal was refused. The following are my reasons for joining in that decision.

2 In essence, the applicant contends that the overall sentence was too long and also that there were errors in the way it was made up.

3 The 87 counts in the indictment involved 41 counts of forging a record with intent to defraud, contrary to s 473(1)(a) of the Criminal Code, together with 41 counts of uttering a forged record with intent to defraud contrary to s 473(1)(b) of the Code. There were also five counts of stealing as a servant contrary to s 378(7) of the Code.

4 The 82 counts of forgery and uttering were comprised of 41 transactions concerning the stealing of money by forging and uttering false documents. The offences concerned were committed between 22 April 1999 and 5 October 1999.

5 The total sum of money unlawfully obtained by the applicant through his offences was $649,743. He later repaid $210,391, leaving a total sum outstanding of $439,352. The maximum penalty for the 82 offences of forgery and uttering was 7 years imprisonment for each of those offences. The maximum penalty for each of the counts of stealing as a servant was 10 years imprisonment. Two of those offences involved the stealing of $20,000 on each occasion. A third offence involved the stealing of $46,982. A fourth offence involved the stealing of $48,107.

6 The 7 year effective sentence was structured by the learned Judge firstly imposing a sentence of 2 years imprisonment with respect count 1 on the indictment, which was forging a withdrawal slip in the name of a company for the amount of $5000, plus a cumulative term of 2 years imprisonment for count 2 of the indictment for uttering the same document. All the other forging and uttering offences were punished with 2 years imprisonment on each count, to be served concurrently with the first sentences imposed.

7 With respect to the five counts of stealing as a servant, each of those offences resulted in a sentence of 3 years imprisonment to be served concurrently with each other but cumulatively upon the earlier effective 4 year term of imprisonment, making an overall effective term of 7 years imprisonment. The terms were ordered to commence from 6 December 1999. The applicant was ordered to be eligible for parole.

8 In his sentencing remarks the learned Judge said that the applicant had been born and raised in Indonesia where he had been a successful businessman until he had migrated to Australia in 1998. Once he had arrived in Australia he had approached and encouraged Indonesian friends and acquaintances to enlist his help in relation to pursuing business interests in Australia. Three companies were formed for the purpose of investing in ventures here. Those companies were owned by Indonesian interests. The applicant was appointed to advise and carry out a management role with respect to the company activities. He was not appointed to handle moneys on behalf of the companies but was to advise them and the entities behind them and to represent them in matters of negotiations and dealings.

9 The applicant fraudulently signed cheques drawn on accounts of the companies. He then diverted moneys from the companies' accounts into bank accounts of his own. All of the moneys stolen were used by the applicant for gambling purposes.

10 The learned Judge said that the persons behind the companies had been hoping to establish themselves in Australia in a business sense and that the applicant had severely damaged them financially. He may well have ruined any chance of those persons coming to settle in Australia.

11 The applicant was 42 years of age at the time he was sentenced. His father had died when he was about 14 years of age. He had graduated in economics and accountancy at university. Prior to coming to Australia it was said that he had had no less than 18 businesses in Indonesia associated with the clothing industry. However the riots in Indonesia and financial difficulties in the latter part of the 1990s had caused him great financial loss. He had come to Australia in 1998 with $25,000 or thereabouts. He was married with three children. His family had come to Australia with him but as a result of his offences they had returned to Indonesia, except for one of his daughters who was studying in Australia. The applicant's wife was supporting herself and the children. The applicant had no assets to speak of.

12 The learned Judge noted that the applicant had pleaded guilty to all the offences and that that was a matter to be taken into account in his favour. His Honour noted that the applicant had cooperated with the police and had expressed remorse for the offences. He took into account the applicant's past good reputation as a businessman, but said that his previous good character could count for little in a case such as this.

13 His Honour said that the principal factors, or some of them, which should be taken into account in determining the sentence, had been referred to him by counsel. They had included a consideration of the degree of trust which had been placed in the applicant and the extent of the breaches by the applicant of that trust. Some of the victims had little ability to speak English and were unfamiliar with Australian rules and regulations and with ways of doing business in Australia. They had relied on the applicant to assist them in venturing into business activities in this country. The applicant had taken advantage of that trust and had exploited it to satisfy his gambling. The offences had been committed systematically and cleverly over a considerable number of months. The persons behind the companies had suffered considerable emotional distress as a result of the financial harm caused to them.

14 His Honour said that it was clear that deterrence should play a large part in the sentencing process. In his view the 82 offences involving the forgery and uttering each deserved a term of imprisonment of 2 years. He said that it was necessary however to take into account the total period that the applicant should spend in prison. His Honour took the view that, having regard to the total criminality of the applicant's conduct, it would be appropriate that he should be sentenced to a total term of 7 years in prison. That sentence would commence from the time the applicant had been taken into custody on 6 December 1999.

15 The first matter relied on by the counsel for the applicant was that he contended that 2 years imprisonment for each of the 82 forgery and uttering offences was too high having regard to their nature. It should however be remembered that the maximum penalty for each of those offences was 7 years imprisonment. Although it was argued that those offences should have merited less than a term of 2 years imprisonment, it could also have been argued that some of them, as the offences continued, could have attracted greater terms than 2 years imprisonment. It is obvious that his Honour structured the sentences to achieve the total effective term of 7 years imprisonment.

16 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ said:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

17 I take note of the earlier decisions which were referred to by the applicant in his outline of submissions. However, as has been said on many occasions, most cases vary in their circumstances. In my view the decisions which were referred to by the applicant do not establish that in this case the learned sentencing Judge imposed a sentence which was too severe in all the circumstances. I refer to the decision of this Court in Birch (1993) 69 A Crim R 181 which the applicant's counsel did not refer to, and where this Court dismissed an application for leave to appeal against an effective sentence of 10 years imprisonment which was imposed upon a person who had misappropriated more than $450,000 belonging to clients of his. Some of the factors in that case were similar to those in the applicant's case.

18 In my view the total of 4 years effective imprisonment in this case for the 82 forging and uttering offences was lenient to say the least. It could have been much higher. It was within his Honour's discretion to structure the effective term in the way he did it. Even if some of the forging and uttering offences were held to have merited lesser terms of imprisonment than 2 years, this Court would then re-sentence the applicant. When doing that the Court would take into account the overall number of forgery and uttering offences - s 689(3) and s 693(1) of the Criminal Code. The result would in my view be no less a total sentence than the applicant received for the relevant offences.

19 With respect to the 3 year terms of imprisonment for the offences of stealing as a servant which were all ordered to be served concurrently but cumulatively upon the first 4 years for the forgery and uttering, as stated above, one of those offences involved a sum over $48,000, another nearly $47,000 and two more $20,000 each. It could only be said that again the applicant was treated very leniently in having those 3 year sentences ordered to be served concurrently, but cumulatively upon the effective 4 year sentence for the forging and uttering offences.

20 In my view no error by the learned Judge was established and that is why I joined in the order that the application be refused.

21 MURRAY J: The reasons published by Wallwork J express adequately for me why I joined in the order refusing leave to appeal. I have nothing to add.

22 MILLER J: I have read the reasons to be published by Wallwork J. I am in agreement with those reasons and have nothing further to add.