JUDGMENT OF: Crawford CJ, Tennent and Porter JJ

Criminal Law - Sentence - Relevant factors - Response to charges - Co-operation with police or assistance to authorities - Generally - Early pleas of guilty.

Dennison v The State of Tasmania [2005] TASSC 54; (2005) 15 Tas R 50; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v Cartwright (1989) 17 NSWLR 243, referred to.

Judgment Number: [2009] TASSC 94

2 That the order made on 12 March 2009 pursuant to which the appellant was sentenced to serve a period of four years and six months' imprisonment with effect from 3 December 2008 with a non-parole period of two years and six months, is quashed.

3 In lieu thereof, the appellant is sentenced to three years' imprisonment with effect from 3 December 2008, with a non-parole period of two years.

1 I generally agree with the reasons for judgment of Tennent J.

2 Having regard to the need for a sentencing discount in recognition of the early pleas of guilty, the information that was provided by the appellant to the police, and his undertaking to give evidence against two individuals, the sentence of imprisonment of four years six months was equivalent to one of imprisonment for at least five years six months and, very possibly, six years, if no such pleas, information and undertaking had been provided. That would have been a manifestly excessive sentence for the offences committed by the appellant. It follows that the sentence that was imposed was manifestly excessive.

3 I agree that the appeal should be allowed and the sentence quashed. I also agree that in its place the appellant should be sentenced to imprisonment for three years from 3 December 2008 and it should be ordered that he is not to be eligible for parole until he has served two years of the imprisonment.

4 On 20 February 2009, the appellant pleaded guilty to 42 charges appearing on an indictment dated 6 February 2009 and on a number of complaints. The matters to which he pleaded were as follows:

- Procuring unauthorised status contrary to the Criminal Code ("the Code"), s283(a) x 4

- Fraud on a creditor contrary to the Code, s296(c)(a) x 2

- Possess false Commonwealth document contrary to the Criminal Code Act 1995

- Uttering contrary to the Code, s279, x 4 C/N 16197/08

- Dishonestly possess a document in circumstances likely to deceive

contrary to the Vehicle and Traffic Act Act 1999, s64(1)(e) x 1 C/N 16198/08

- Dishonestly obtain (or attempt to obtain) a driver licence or

renewal of a licence contrary to the Vehicle and Traffic Act 1999,

s64(1)(a) x 4 C/N 1245/09

- In possession of stolen property contrary to the Code, s258 x 1 C/N 1255/09

- Dishonestly obtaining or dealing in personal financial information

5 The appellant was sentenced on a global basis. He was convicted on all charges. In respect of all charges, save those appearing on complaints numbered 16041/08, 1249/09 and 1258/09, he was sentenced to serve a term of four years and six months imprisonment, backdated to 3 December 2008. A non-parole period of two years and six months was imposed. The sole ground of appeal was that, in all the circumstances of the case, the sentence imposed was manifestly excessive.

6 The offending occurred over the period 12 October 2007 to 3 December 2008. Towards the end of October 2007, the appellant travelled from New South Wales to Hobart. He went to Service Tasmania. Using forged documents, he applied for a driver licence in the name of John Mason. On 28 February 2008, he again travelled from New South Wales to Hobart. This time he went to a different Service Tasmania outlet. Using forged documents, he applied for a driver licence in the name of Dejan Macsik.

7 On 20 May 2008, the appellant repeated the exercise, this time applying for a driver licence in the name of David Mark. On 13 June 2008, the appellant travelled from New South Wales to Hobart with a female. He went to the Westpac Bank at Moonah and opened an account in the name of David Mark with a $15 deposit. To do this, he produced a driver licence and a citizenship document. He then returned to New South Wales. The appellant was later sent a MasterCard and a pin number. The female with the accused opened a bank account at another Westpac branch on the same day.

8 The appellant returned to Hobart on 23 June 2008 with the same female. The next day they went to Co-operative Motors. The appellant entered into a contract to buy a new Toyota Corolla car for $34,900 in the name of David Mark. The appellant paid a deposit of $500 drawn on a cheque account in the name of Infinity Diamond Pty Ltd, signing the cheque, DM. The appellant said he would arrange his own finance and obtained the VIN details of the car for that purpose. He was given a copy of the contract and it was also faxed to a number he provided. The next day the appellant returned to the car yard. He asked that the delivery date be removed from the contract and that the sales staff sign the contract. They did this, and the appellant was given a fresh copy of the contract.

9 The appellant and his female partner also went to Motors Pty Ltd on 24 June 2008. They carried out the same steps as they had initially with Co-operative Motors, this time relating to the purchase of a Holden Commodore for $32,999.35. The deposit cheques for both cars were, in due course, dishonoured.

10 On 26 June 2008, the appellant obtained an insurance cover note for the Corolla and applied to the Westpac Bank for a loan of $50,000 in the name of David Mark. On the same day, he went to ASIC and, as David Mark, a director of the proposed company, he registered a company with the name Co-operative Motors Hobart Pty Ltd. Having done that, the appellant went to the ANZ bank and opened another bank account in the name of David Mark trading as Co-operative Motors Hobart Pty Ltd.

11 The Westpac loan was approved and, on 27 June 2008, the bank advanced the loan monies by giving the appellant a cheque payable to Co-operative Motors Pty Ltd for $34,490, and crediting the account he had already opened with that bank with the balance of the loan advance. The appellant, instead of purchasing the Corolla, took the cheque to the ANZ bank and deposited it to the account he had opened in the name of Co-operative Motors Hobart Pty Ltd. On 1 July 2008, the appellant cleared both the ANZ and Westpac accounts. The car was never purchased and no repayments were made on the Westpac loan. None of the $50,000 was ever recovered. The accused was also a party to an almost identical scheme by which a fraud was perpetrated in the name of his female co-accused on the Westpac Bank, arising from the purported purchase of the Holden Commodore. $46,000 disappeared in that fraud.

12 On 3 December 2008, the accused and another male arrived in Tasmania. The police had information about their arrival and followed the men from the airport. At Service Tasmania at Glenorchy, the appellant helped the other male to apply for a driver licence using false papers. The appellant was arrested outside Service Tasmania at Glenorchy. He had the driver licence in the name of David Mark and other forged papers on him. The appellant was paid $3,000 to help the male he was with.

13 The appellant also travelled to Tasmania on two other occasions in August and September 2008 and, using forged documents, helped three other males obtain driver licences. He tried to assist a fourth. However that attempt failed.

14 After his arrest the appellant was interviewed by police. He made no comment. On 11 February 2009, however, the appellant was re-interviewed at his request. He told police that he had become involved in the scams after re-connecting with a friend from primary school who appeared to be living a good lifestyle. The appellant said he had asked the friend how he was able to live that lifestyle. This male offered to let him be involved. The appellant paid him $2,000 for documents and then this male helped him for a percentage of what was made.

15 Counsel for the appellant submitted that the learned sentencing judge gave insufficient weight to the plea of guilty entered and to the fact that the appellant had agreed to assist authorities in its prosecution of others involved in the frauds committed. There was no criticism of the mitigating and aggravating facts identified by the learned sentencing judge, which included the fact that the appellant had some history for offences of dishonesty. While the plea of guilty and assistance to authorities were both identified, and counsel conceded that allowance had no doubt been made for them, he submitted it was impossible to identify in some meaningful form what allowance had been made. Having regard to other factors which should have impacted on any sentence in favour of the appellant, it was apparent from the severity of the sentence that insufficient weight had been given to the plea of guilty and the assistance to authorities.

16 Counsel for the respondent submitted that the sentence imposed was, in all the circumstances, an appropriate one. These were serious crimes. The appellant chose to become part of a quite professional criminal operation, he enjoyed the lifestyle the money he obtained from his activities brought him, he played an active and significant role in the operation, and his involvement was over a reasonable period of time. The crimes were also carefully and deliberately planned. Given these factors, counsel for the respondent submitted that this was not a case where insufficient weight had been given to the factors identified by counsel for the appellant.

17 There is no dispute that courts routinely allow discounts in respect of offender's sentences for pleas of guilty and assistance provided to authorities. The circumstances of each case will generally determine the extent of any discount allowed. In this State however, it is not consistently the practice for judicial officers to identify the precise discount they may have allowed for when imposing a sentence.

18 Pleas of guilty should ordinarily attract a reduction in sentence, the more so if they are of "utilitarian benefit" (see Dennison v The State of Tasmania [2005] TASSC 54; (2005) 15 Tas R 50, per Slicer J at 54). McHugh J commented upon the allowance of such discounts in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 387, where he said at par74:

"Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of 'discounts' on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice. Cameron v The Queen (2002) CLR 339 at 345-346 [22] per Gaudron, Gummow and Callinan JJ."

19 Their Honours, Hunt and Badgery-Parker JJ, in a joint judgment in R v Cartwright (1989) 17 NSWLR 243 at 252, said in relation to assistance to authorities:

"There are, however, certain broad general principles which may be discerned from all these cases and which may be stated as being applicable to the discount to be given for assistance provided to the authorities. It is, we feel, unnecessary to identify the source from which each is taken. Many of them overlap. None is necessarily more important than the others. The weight to be given to each will depend upon the circumstances of the particular case.

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve."

Did the learned sentencing judge err in the weight given to the two factors identified?

20 The learned sentencing judge said in relation to the plea of guilty:

"Initially he made no admissions to the police, but he made substantial admissions during an interview in the week before he pleaded guilty. It is significant that he pleaded guilty to all charges, has never suggested that any of the charges would need to go to trial, and has become very co-operative."

21 Counsel for the respondent submitted that the learned sentencing judge had used the word "significant" in relation to the plea of guilty, and that this was not a case where the accused had co-operated from the beginning. It could be argued the appellant was bowing to the inevitable. I do not necessarily accept that when his Honour used the word "significant", he was referring to the fact of the plea generally. It is open, in my view, to read the comment as referring to the fact that the appellant pleaded guilty to all the matters against him, rather than to the plea of guilty in itself. This ambiguity perhaps supports the submission of counsel for the appellant as to the lack of some meaningful capacity to identify to what extent the plea of guilty was recognized in terms of a discount.

22 As to that plea of guilty, while the appellant was found with forged documents and police were no doubt able to follow a paper trail to mount a significant case against him, any trial would have been complex and it is unlikely to have been short. The appellant's plea avoided the need for that trial, and, incidentally, the costs and resources which would have been involved in it.

23 As to the appellant's co-operation with authorities, it was not immediate upon arrest, but did come only a matter of weeks later. It also came well before the State would have prepared the matter for trial. Indeed, the record of proceedings sheets attached to the copy complaints in the papers show that the co-operation was provided before the appellant's first appearance in court on these matters.

24 The learned sentencing judge also had before him a letter written by Detective Inspector Peter Powell to the Office of the Director of Public Prosecutions. In that letter Inspector Powell outlined the information provided by the appellant to police in an interview which the appellant sought out. He identified three areas where information had been provided. As to one, he said evidence given by the appellant might assist the prosecution, but was not considered critical. As to another, he said the evidence of the appellant may be of substantial benefit if required because the case against a particular identified person without the appellant's evidence was "not strong". As to the third, it appears the appellant provided information about possible offending in New South Wales which was to be passed on to authorities there. The inspector noted that information had not been confirmed or tested. The inspector also advised that the appellant had given an undertaking to police to give evidence against two alleged offenders.

25 Notwithstanding the facts outlined above, the only reference in the comments on passing sentence to the issue of assistance to authorities is the words, "has shown signs of substantial co-operation".

26 Counsel for the appellant does not submit that the learned sentencing judge should have specified any discount he allowed for the plea of guilty and assistance to authorities. His submission is that it is simply not apparent from the comments on passing sentence that a meaningful discount was given. While conceding that it was not possible to identify precisely what discount might have been appropriate in this case, counsel suggested that a review of New South Wales cases suggested a range of between 10 and 25 percent could apply. As a theoretical exercise, he applied that to the appellant's sentence, and submitted that a sentence increased by that range would have been significantly out of line with sentences imposed for comparable offending in this State.

27 There can be little doubt that the appellant's plea of guilty contributed to the administration of justice. It was more than a bowing to the inevitable and the admissions to police which preceded it had to have saved authorities a great deal of investigative work. As to his assistance to authorities generally, there is no suggestion that the appellant did not genuinely co-operate with authorities, and that, in the view of the authorities, the information provided could significantly assist them. Both of these factors entitled the appellant to a significant discount in respect of his sentence, notwithstanding the aggravating factors identified by the learned sentencing judge.

28 I am satisfied that the appellant was entitled to a significant discount on his sentence to reflect the plea of guilty and assistance to authorities and that, having regard to the sentence imposed and the comments on passing sentence, it is not possible to identify that that discount was in fact given. Taking into account the mitigating and aggravating factors existing in this matter and the significant weight which should have been given to the plea of guilty and assistance to authorities, the sentence imposed, in my view, is manifestly excessive and this appeal should be allowed. I would quash the order by which the appellant was sentenced to serve a period of four and a half years imprisonment with a non-parole period of two and a half years, and, in its place, would order that the appellant serve a term of three years imprisonment with a non-parole period of two years.

29 I agree with the reasons for judgment of Tennent J and with the orders proposed by her Honour.