Heather Kathleen Power v Regina

Court of Criminal Appeal (NSW)|2002-06-19|Before: Greg James J, Smart AJ, James J

The applicant has to accept primary responsibility for her conduct and her criminality. The judge rightly regarded her criminality as considerable and serious, pointing to the large amounts taken, and expended, the conduct lasting over four years, thirty-nine separate charges, and the offences committed in breach of trust. She relied on Pantano (1990) 49 A Crim R 328 at 330.

She was conscious of the need for general deterrence and the vindication of the criminal law, where a position of trust had been abused.

The applicant was born on 12 March 1956. She was a person of prior good character. Indeed, the testimonials as to that were very strong, and she could fairly be described as a person of exceptional prior good character. The judge acknowledged that imprisonment would weigh heavily upon her, that she had destroyed her good reputation, her life with her husband and her employment prospects. The judge accepted that there was little or no prospect of her re-offending, so that rehabilitation was no longer a factor in the sentencing exercise.

She also held that some lesser weight should be placed on the principle of general deterrence in view of the applicant's emotional and psychological state at the time of the offences. I agree.

The judge found special circumstances on the basis that this was the applicant's first custodial sentence. The judge also gave her the maximum discount allowable for her early plea and her contrition. The judge found that her attitude since she was first confronted had been one of abject remorse and co-operation with the investigating officials. I do not think it can be said, so far as the head sentences are concerned, that the judge erred in the allowances she made for the early plea of guilty and the contrition.

What I have said so far disposes substantially of the applicant's contention that there were significant errors of fact. I reject the applicant's submission that the judge excluded concepts of rehabilitation from the exercise of the sentencing discretion. She thought that it had taken place and that there was little or no risk of re-offending. The judge took those factors into consideration in determining the sentences which she was going to impose.

The applicant contended, in her written submissions, that having regard to the judge's remarks the applicant should be given the full allowable discount for her early plea of guilty, contrition and co-operation with the investigating officials, and that must mean a discount of 25 per cent. It was submitted that the judge must therefore have started with a sentence of ten years and eight months, and that this was manifestly excessive.

In his oral submissions today, counsel submitted that this was a case where the discount, when all the factors are taken into account, should exceed 25 per cent. This would result in a starting point in excess of 11 years. A mathematical approach is not applied. Even more importantly in the present case, this is not how the judge approached the sentencing task. Following Pearce 194 CLR 610, she determined the sentence in respect of each offence, had regard to the principle of totality, and then decided that the sentences should be partially concurrent and partially cumulative.

Amongst other matters, this was necessary to adequately reflect the criminality involved. Correctly, the judge did not take the overall approach postulated by the submissions of the applicant to which I have recently referred. In fixing the head sentence, I do not think that the judge gave insufficient weight to the evidence of prior good character. Because of the singular nature of the facts in the present case, I do not regard the statistics produced by the Judicial Commission as being of great assistance, although I have had regard to them.

In Pantano (1990) 49 A Crim R 328 at 338 I reviewed some of the decisions of this Court in major frauds between 1980 and 1987. Allowing for inflation, they are still useful, even though they were imposed under a different sentencing regime. In Gale and Glenister and Garrity although there were effective head sentences of thirteen and twelve years, the non-parole periods were less than five years.

In McKechnie the effective head sentence was one of twelve years, with a non-parole period of seven years. When McKechnie was decided, remissions of one-third were usually also applied to the non-parole period. That would have led to an effective non-parole period of less than five years. The offenders in those cases all held senior executive positions. Indeed, Garrity was an official liquidator. The applicant held a more junior position.

In the present case the sentences of five years, with no non-parole periods fixed are manifestly excessive. They do not reflect the strong subjective features of the applicant and the discounts earlier mentioned to which she is entitled. The period which she is likely to spend in prison on those sentences is likely to be greater than that for the more serious offences in 2000, where the non-parole period is four years.

Where there is an accumulation of sentences, anomalies are sometimes difficult to avoid, when regard is had to the principle of totality, and the overall period which should be spent in gaol. Concurrent sentences of five years with a non-parole period of three years would not have been open to challenge in respect of the offences committed in the latter part of 1998 and in 1999. They would also have adequately reflected the principle of totality.

For the most serious offences, namely those committed in 2000, I do not regard the concurrent head sentences of seven years as being fairly open to challenge. Lesser head sentences could not be imposed. If those sentences had stood alone, I would not have regarded the non-parole period of four years as excessive. Of course, those sentences do not stand-alone. There is an accumulation of sentences. This, of itself, is a special circumstance.

In Corbett 52 A Crim R 112 at 117 this Court, comprising Gleeson CJ, Priestley JA and Matthews J, understandably said: "Nevertheless, a feature of past sentencing for 'white collar' crimes involving fraudulent abuse of trust, and sometimes involving fraud on the public purse, has been the imposition of lengthy head sentences, but with a substantial gap between head sentence and non-parole periods or minimum terms. This has probably been the consequence of a desire on the part of the courts, on the one hand, to reflect the need for general deterrence and, on the other hand, to give due account to the fact that the offenders involved frequently have no prior criminal history, are not likely to re-offend, and have good prospects of rehabilitation."
The reasons for that policy apply with particular force in the present case. Further, there is some explanation as to why the applicant acted as she did.

Section 41(1)(b) of the Crimes (Sentencing Procedure) Act 1999 requires a non-parole period to be the minimum term for which the offender must be kept in detention in relation to the offence. This is a statutory recognition of the principle which has applied for many years: Bugmy v The Queen (1990) 169 CLR 525 and cases there cited.

In the present case there are special circumstances which underline the validity and applicability of the policy in Corbett and also reflect the purpose of s 44(1)(b) of the Crimes (Sentencing Procedure) Act 1999. I have earlier referred to them. In my opinion, an effective non-parole period of five years is manifestly excessive. It exceeds the minimum period for which the offender must be kept in detention in relation to these serious offences.

I propose the following orders: 1 Leave to appeal granted. 2. Appeals allowed in part. 3. Dismiss the appeals as to counts 11 and 12, namely, a sentence of a fixed period of twelve months on each count and as to counts 13-21 inclusive, namely, a sentence of two years fixed period on each count. 4. Appeals as to counts 3, 22-36 inclusive allowed in part. Dismiss the appeal against a head sentence of five years on each count, but as to each count, fix a non-parole period of three years commencing on 29 October 2001 and expiring on 28 October 2004. 5. Appeal as to counts 1, 2, 4-10 and 37-39 inclusive allowed in part. Dismiss the appeals against the head sentence of seven years on each count commencing on 29 October 2002. Quash the non-parole period of four years. In lieu thereof, a non-parole period of three years is fixed in respect of each count, commencing on 29 October 2002 and expiring on 28 October 2005, on which day the applicant is eligible for release on parole.
GREG JAMES J: I agree. The orders will be as proposed by Smart AJA.

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.

CITATION : Heather Kathleen Power v Regina [2002] NSWCCA 244 FILE NUMBER(S) : CCA 60801/01 HEARING DATE(S) : 19 June 2002 JUDGMENT DATE : 19 June 2002

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (2)

Cited By (5)