R v Barrick (1985) 81 Cr App Rep 78

R v Birch (1993) 69 A Crim R 181

R v Brown (1982) 5 A Crim R 404

R v Carey & Adey (1975) 11 SASR 575

Jarvis v The Queen (1993) 20 WAR 201

McPharlin v The Queen, unreported; CCA SCt of WA; Library No 970665; 10 October 1997

Mill v The Queen (1998) 166 CLR 59

Pak v The Queen, unreported; CCA SCt of WA; Library No 950407; 11 August 1995

R v Azaddin (1999) 109 A Crim R 474

R v Kite, unreported; CCA SCT of WA; Library No 960659; 1 December 1995

R v Ruane [1979] 1 A Crim R 284

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

RH McL v R [2000] HCA 46; (2000) 203 CLR 452

Ryan v The Queen [2001] HCA 21; (2001) 75 ALJR 815

Turner v The Queen [2002] WASCA 189

1 JUDGMENT OF THE COURT: This application for leave to appeal against sentence was refused at the hearing. These are our reasons for that order.

2 On 20 May 2002 the applicant pleaded guilty to an indictment charging him that on 19 January 1999 he obtained $48,000 by deceit or fraudulent means with intent to defraud. On the same date he went to trial in the District Court on 22 separate counts, all committed on 24 August 1999. Each count charged an offence under the Criminal Code (WA), s 474. 21 of the charges were for possession of forged motor drivers licences in different names under circumstances giving rise to a reasonable suspicion that he had them for the purpose of uttering them with intent to defraud. The last charge was that on the same date and place as the others, he had possession of a laminating machine under circumstances giving rise to a reasonable suspicion that it was possessed for the purposes of forging the MDLs, with intent to defraud. On 24 May 2002 he was convicted on all counts.

3 On 29 May 2002 he was sentenced for the offence of fraud to 31/2 years imprisonment. For each offence of possession of a forged MDL with intent to defraud he was sentenced to imprisonment for 1year. For the offence of possession of the laminating machine used to forge the MDLs he was sentenced to imprisonment for a year and a half. All the sentences for the offences of possession of the forged MDLs were ordered to be served concurrently, but cumulatively upon the sentence for the offence of fraud. The sentence for the offence of possession of the laminating machine was ordered to be served cumulatively. The aggregate term of imprisonment imposed was therefore 6 years, backdated to 22 March 2002 to allow for time spent in custody on remand. A parole eligibility order was made.

4 The application for leave to appeal was argued on three grounds which effectively raised two propositions leading to the asserted conclusion that the aggregate term was manifestly excessive. The first was that the sentence for possession of the laminating machine should not have been ordered to be served cumulatively upon the 21 sentences for possession of the forged MDLs. If that proposition had succeeded the result would have been to reduce the aggregate term from 6 years imprisonment to 5 years imprisonment. The second proposition argued was more generally that in total the aggregate term was excessive.

5 It was argued that the sentencing Judge failed to give sufficient weight to the fact that by the fraud offence only $48,000 had been obtained and there was no relationship of trust between the applicant and the victim of that offence. It was pointed out that the offences of possession of the forged MDLs and the laminating machine involved no financial benefit to the applicant. As to the applicant's personal circumstances, it was argued that he had led an exemplary life until the age of 52 years and the offending had been caused by particular financial circumstances affecting his position at the time.

6 A brief reference to the facts of the case is therefore required. What follows is taken substantially from the facts as found by the sentencing Judge. The applicant operated second-hand motor dealers businesses in NSW. For reasons which are presently immaterial he got into financial difficulty. On 18 December 1998 he bought a new Toyota Landcruiser in a false name, using a forged MDL. He registered the vehicle in his name, using the forged MDL and a forged birth certificate as identification. Elaborate steps were taken to defeat the credit check carried out by the finance company. The applicant had the vehicle transported to Perth and travelled here himself. He registered the vehicle here by means of a false statutory declaration.

7 The applicant advertised the vehicle for sale for the sum of $50,000. A lady responded to the advertisement. A sale was negotiated for the sum of $48,000. The purchaser paid by cheque. The applicant negotiated that cheque through a bank account which he had opened in the false name, using false documents of identification. The fraud offence was committed in January 1999. Within days, the applicant withdrew all the money from the bank account and returned to NSW.

8 In August 1999 he returned to WA, as the sentencing judge inferred, for the purpose of committing frauds on banks and financial institutions. He took a lease of an apartment, using a false name, masquerading as a visiting American psychologist who hoped to buy a vineyard at Margaret River. Twenty sets of forged documents to be used to make credit applications to banks and financial institutions were compiled. Each set of documents contained a forged WA MDL, a forged NSW birth certificate, a forged letter from a non-existent business certifying that the fictitious person was employed as a mining engineer earning $87,500 per annum and, in each case, there was a set of false wage slips as primary evidence of that employment. The 21st enterprise of this kind was apparently incomplete. There was merely the forged MDL. Each of the forged MDLs was made using the laminating machine the subject of the 22nd charge of possession with intent to defraud.

9 By the time these offences were discovered by the execution of a search warrant on the applicant's apartment, many of the false documents had been used to open bank accounts and to apply for credit. Thirteen accounts had been opened in false names with eight different financial institutions and eleven applications for credit to a total sum of $62,000 had been made. Some had been granted, but the applicant had, by then, received no financial benefit.

10 The Judge, Blaxell DCJ, found that the intervention of the police interrupted a continuing process of fraud. There was ample evidence to support that finding. His Honour described the offences as follows:

"In my view, the offences are serious examples of their kind. Each of them was carefully planned and was meticulously and coolly executed. It is quite obvious that you are a very intelligent individual and you can be fairly described as a very clever trickster. You are also obviously aware of the weaknesses in the credit checking systems adopted by banks and in, for example, the system of registration of encumbrances on vehicles, and you manipulated the weaknesses in the systems when committing the present offences. You also demonstrated great skill in the way in which you used forged documents and co-ordinated your activities in order to progress the proposed frauds."

11 The completed fraud offence was described by his Honour as "elaborate and very sophisticated". In our opinion, the offences are fairly described in that way and we did not think that his Honour misunderstood the facts or failed to have proper regard to any feature of the case.

12 As to the applicant's personal circumstances, information had been provided to the Court by an oral pre-sentence report. His Honour noted that the applicant was aged 56, a resident of NSW, married with two children, aged 17 and 18 years. His Honour accepted that the applicant's, "motivation in committing the present offences arose from serious financial difficulties resulting from the failure of [the applicant's] motor vehicle business, combined with some resentment of the role that some banks and finance companies played in that failure." His Honour accepted that the applicant's previous convictions were sustained in 1999 in NSW for two fraud offences committed as a result of his dishonest efforts to extricate himself from the consequences of the failure of his business.

13 Blaxell J gave credit for the plea of guilty to the fraud offence, a late plea described by the Judge as having been, "entered in the face of your inevitable conviction following the collapse of a very elaborate and concocted alibi." Although the plea was not in any way indicative of remorse, his Honour noted that it did at least save the need for witnesses to attend the trial from NSW. That was the only matter, however, which Blaxell J thought it proper to have regard to as a mitigating factor because his Honour concluded that the applicant had shown no remorse for what he had done. That seems to us, with respect, to have been a proper conclusion.

14 There is no contention that the individual sentences imposed for the various offences were excessive to any degree. The extent to which they were to be ordered to be served cumulatively was, of course, a matter of judgment as part of the overall exercise of sentencing discretion. The principles were recently discussed by this Court in R v White [2002] WASCA 112. The judgment is that of McKechnie J, with which Wallwork and Murray JJ agreed. At [25] - [26] McKechnie said:

"The question commonly posed for answer by a sentencing judge is whether the offences arise out of the same set of facts so that the sentences should properly be made concurrent, or whether the offences disclose entirely distinct conduct which should attract separate and therefore cumulative punishment. There is often no obvious answer, as the authorities ... illustrate.

There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may, in the circumstances, attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing judge's discretion."

15 In a very real sense each of the offences of possession of a forged MDL with intent to defraud and the offence of possession of the laminating machine represented separate offences and distinct acts which might lead to separate and distinct frauds being committed. To our mind, the judgment of Blaxell J represents a fair compromise between the principle of separate punishment for separate offending acts and the totality principle that overall the ultimate result is to be properly proportionate to the total criminality involved. In announcing his decision as to the extent of the accumulation ordered Blaxell J expressly referred to the totality principle.

16 In all the circumstances of this case, to which we have referred, both those concerned with the nature of the offences committed and the applicant's personal circumstances and his attitude towards the offending, we found ourselves quite unable to conclude that the exercise of sentencing discretion had miscarried, having regard to the matters mentioned in argument by counsel for the applicant, on the basis that proper regard was not had to the application of the totality principle. The final outcome was, in our opinion, within the range of a sound exercise of sentencing discretion.