Mitchell v Regina

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Hitchcock NSWCCA (unreported) 13 July 1998 Battiato [1999] NSWCCA 44 Szeto [1999] NSWCCA 296 Aliperti [2000] NSWCCA 315 Tripodina [2001] NSWCCA 136 CASES CITED: Hawker [2001 NSWCCA 148 Farlow [2001] NSWCCA 348 Trim [2002] NSWCCA 82 Royal [2003] NSWCCA 260 R v Araya [2005] NSWCCA 283 R v George (2000) 149 A Crim R 38 Pearce v The Queen (1998) 194 CLR 610

PARTIES: Applicant - Neil Mitchell Respondent - Crown

COUNSEL: Applicant - Ms L Flannery Respondent - Mr G Rowling

SOLICITORS: Applicant - Mr SE O'Connor Respondent - Mr S Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2005/1897 SULLY J LATHAM J

24 March 2006 NEIL MITCHELL v REGINA Judgment 1 SULLY J: I agree with Latham J 2 LATHAM J: The applicant, Neil Mitchell, seeks leave to appeal against sentences imposed by Solomon DCJ (the Judge) on 25 February 2005, following the applicant's committal for sentence from the Local Court on 13 counts of Obtain Money by Deception, pursuant to S178BA of the Crimes Act 1900. Each of the offences carries a maximum penalty of five years' imprisonment.

3 The Judge imposed the following sentences:- Counts 1 - 4 - On each count, a fixed term of two years and five months' imprisonment to date from 14 January 2005, expiring 13 June 2007. Counts 5 - 8 - On each count, a fixed term of two years and five months' imprisonment to date from 14 June 2007, expiring on 13 November 2009. Counts 9 - 13 - On each count, a non-parole period of two months to date from 14 November 2009, expiring on 13 January 2010, the balance of the term being three years to expire on 13 January 2013. Thus, the total effective sentence was one of 8 years' imprisonment with a non- parole period of five years.

4 The circumstances of these offences may be related in a reasonably short compass. The applicant was engaged as the National Accountant between December 1999 and July 2003 of the Australian Teenage Cancer Patients Society. Between April 2000 and June 2003, the applicant made 244 unauthorised electronic fund transfers from accounts of the society to the joint account held by himself and his wife. The total amount of those transactions was $302,099.34. The applicant had effective control of the accounts of the society, in that he knew the passwords necessary to operate upon them. He occupied a position of trust, the abuse of which resulted in the misappropriation of a significant amount of money, which was intended for victims of cancer and their families. These monies were used by the applicant in the course of gambling and for overseas trips for himself and his family. None of the money was repaid.

5 The sole ground of appeal is that the effective total sentence is manifestly excessive. That ground was developed in argument in the following way; the fixed terms of two years and five months' imprisonment effectively represented head sentences in each case of approximately three years and three months (absent a finding of special circumstances, contrary to the Judge's determination), which in themselves were excessive, and that error was compounded by an excessive degree of accumulation. It was not suggested that the partial accumulation of the sentences was outside the Judge's sentencing discretion, rather that the imposition of effective head sentences towards the upper range, having regard to the maximum penalty, was not justified by the objective circumstances of the offences, taking into account the applicant's subjective circumstances.

6 In particular, the applicant relies upon the Judge's finding, to the effect that the method employed by the applicant was "an unsophisticated system in that [he] removed the funds into accounts either held by himself, or held in the name of himself and his wife", effectively guaranteeing the applicant's discovery by his employer, which occurred on 30 June 2003. The Judge further found that "the degree of sophistication and planning involved in the matter was not great". When confronted by his employer, the applicant made full admissions and assisted his employer in determining from which account the funds had been taken. Despite this early acknowledgement of responsibility, the applicant was not arrested and charged until 17 June 2004, at which time he was interviewed and made further full admissions. The applicant pleaded guilty in the Local Court and was given the benefit of the maximum discount applicable to the recognition of the utilitarian value of those pleas. The applicant had no prior criminal convictions.

7 The Judge explored in his remarks on sentence the favourable subjective material placed before the court. The applicant was almost 46 years of age at the time of sentence and had been born and raised in South Africa. The Pre-Sentence report spoke of family financial constraints and a restricted life as a non-white under the apartheid regime. The applicant was determined to improve his educational and social standing, completing high school in South Africa and three years of a four-year Bachelor of Accounting university degree course. It was said that he also completed the majority of a Bachelor of Business degree course in the late 1980s. His employment history appeared to be consistent. He had married in South Africa in 1981 and migrated to Australia in 1984. The applicant is the father of three daughters, two of whom remain at school. A number of references were also placed before the court, attesting to the applicant's community work with a number of sporting associations. The applicant expressed his contrition to the Probation and Parole officer, to a psychologist and to his wife, however failed to give evidence himself on the sentencing proceedings. The Judge appears to have accepted that the applicant was remorseful.

8 The primary submission advanced in support of the argument that the aggregate sentence is manifestly excessive turned upon a comparison of 29 cases heard by this Court between July 1996 and August 2005, relating to s178BA offences. Of those 29 cases, the following are in my view the most apposite, in so far as any meaningful comparison might be drawn between those cases and the instant matter, according to the amount of money relevantly defrauded in each case: --

Hitchcock NSWCCA (unreported) 13 July 1998 - $400K Battiato [1999] NSWCCA 44 - $490K Szeto [1999] NSWCCA 296 - $319K Aliperti [2000] NSWCCA 315 - $400K Tripodina [2001] NSWCCA 136 - $400K Hawker [2001 NSWCCA 148 - $560K Farlow [2001] NSWCCA 348 - $481K Trim [2002] NSWCCA 82 - $445K Royal [2003] NSWCCA 260 - $348K 9 The effective head sentences which were either imposed at first instance and confirmed in this Court, or imposed by this Court, in the above cases were between 30 months and six and a half years.

10 Of course, the amount of money defrauded is but one factor in the commission of such offences, which bears upon the assessment of the offender's criminality. Other factors, including the length of time over which the offences are committed, whether or not the offender occupies a position of trust, and the sophistication of the method employed to defraud the victim, play a part in placing an offence on the spectrum of offences of a like nature, bearing in mind that the maximum penalty is reserved for the worst class of case. The interplay of these factors in any given case, together with the subjective circumstances of the individual offender, is capable of giving rise to the imposition of seemingly disparate sentences, which might appear difficult to justify on nothing more than a relatively superficial comparison. Indeed, one of the decisions of this Court relied upon by the applicant (Hawker), sounds a cautionary note in the following terms: - There is a danger in endeavouring to extract a "range" from a limited group of decisions on appeal, or from sentencing statistics. Some of the cases here selected by the applicant were Crown appeals in which the principle of double jeopardy or that relating to special discretion attaching to Crown appeals, were applicable. Others were cases involving quite different objective and subjective considerations, as well as differing sums of money. Some involved offenders such as solicitors or others holding fiduciary office or positions of trust, and others of which involved employees of no great seniority. In some instances, the offences were relatively simple and of short duration, and in other cases they were complex and prolonged. The need for care in attempting any such comparison as that suggested here was recently underlined by Spigelman C. J. in Slater [2001] NSWCCA 65 at paragraphs 50 - 52. Moreover, while reference to cases of similar character can be helpful as a guide, those selected are by no means a comprehensive survey of sentences imposed, either upon appeal or at first instance, for serious instances of s178BA offences. Nor is it clear upon which basis they were selected. …………………. In my view, greater assistance is to be derived by reference to general sentencing policy which has seen something of a hardening attitude to white-collar crime in view of its difficulty of detection, and in view of the fact that its impact may fall upon a wider group of investors or creditors: Pont [2000] NSWCCA 419. (per Wood CJ at CL)

11 More recently, this Court has reiterated the questionable value of seeking to impugn a sentence at first instance by reference to a number of other unrelated cases concerning the same offence : R v Araya [2005] NSWCCA 283 [69]-[70]. The decision of the Court in R v George (2000) 149 A Crim R 38 at 47, bears repeating:- It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J. at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing, …….. The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J. said in Trevenna, "Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong". Inter alia, any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made.

12 For these reasons, I prefer to approach the resolution of this appeal by reference to established sentencing principles, rather than by a detailed comparison between the objective and subjective factors in each of the decisions relied upon by the applicant and the objective and subjective factors in the instant case.

13 It appears to me that there is some force in the argument that the Judge approached the matter on the basis that the totality of the applicant's criminality warranted a non parole period in the order of five years, and then and only then was the duration of the individual sentence for each individual count addressed. Some brief reference to the history of the matter is necessary in order to place this submission in context. The applicant in fact came before his Honour for sentence on 14th January 2005, at which time his Honour imposed an aggregate sentence of nine years imprisonment, with an aggregate non-parole period of five years. On each of the thirteen counts, the applicant was sentenced to a non-parole period of one year and eight months, the balance of the term being one year and four months. The sentences for each successive group of offences were wholly accumulated on the preceding group. Subsequently, the Judge was informed that the sentences offended against s55 of the Crimes (Sentencing Procedure) Act 1999, resulting in the applicant being brought back before his Honour on 25th February 2005, pursuant to s43 of that Act. It was on this occasion that his Honour imposed a sentence in the terms set out at the beginning of these reasons. Whilst his Honour referred to Pearce v The Queen (1998) 194 CLR 610 in the course of his reasons of 14th January 2005, that was only in respect of the exercise of his discretion to accumulate the sentences imposed. On the second occasion, his Honour referred again to Pearce, yet his Honour confirmed the aggregate non parole period of five years, in spite of his reduction of the overall head sentence. His Honour made it clear that it was his intention to retain the aggregate non-parole period of five years.

14 In my view, the individual sentences imposed on 14 January 2005 in respect of each of the 13 counts were more appropriate to the applicant's criminality than the sentences imposed on the later occasion. It seems that the Judge was driven to impose the sentences the subject of this appeal in order to arrive at the ultimate result, that is, an aggregate non parole period of five years. Such an approach offends against the principles established by Pearce and has, in the circumstances of this case, resulted in the imposition of sentences in respect of each count outside the legitimate range of his Honour's sentencing discretion. The Judge was required to arrive at a sentence appropriate to the circumstances of each offence, accepting that it was legitimate to group a number of offences together, and then to turn his mind to the question of partial or total accumulation and concurrency in order to reflect the course of offending.

15 As noted above, the Judge found special circumstances, which were ultimately reflected in the imposition of an aggregate non-parole period which was approximately 62 percent of the effective head sentence. Assuming that proportion to have been maintained for the purposes of the sentences imposed on counts 1 to 8, the fixed terms of two years and five months may be translated into non-parole periods in respect of a nominal head sentence in each case of four years. These individual sentences appear to me to be excessive by reference to the maximum penalty in each case and taking into account the applicant's foray into criminal conduct for the first time at the age of 46. In this regard, I note that his Honour placed some emphasis upon personal deterrence, which in my view was not justified. 16 The applicant has established his ground of appeal and the intervention of this Court is warranted. I note in passing that offences 4 to 8 inclusive were committed over a period which pre-dates and post-dates 1 February 2003, and that offences 1 to 3 inclusive and 9 to 13 inclusive were committed over a period entirely pre-dating 1 February 2003. It would seem that the applicant was sentenced on both occasions under the prevailing s 44 of the Crimes (Sentencing Procedure) Act, rather than under the repealed provision, assuming the applicant should receive the benefit of the former sentencing regime for all offences. Whilst it may make little practical difference in the circumstances of this case (there being no relevant standard non parole period), I propose to approach re-sentencing on the basis that the repealed s 44 applies to all offences. 17 I would find special circumstances and the Crown has not suggested to the contrary. The Court received additional material on the usual basis and it is clear from that material that the applicant is progressing well and is highly regarded by the prison authorities. I propose the imposition of a head sentence of 3 years imprisonment on each of counts 1 to 8 inclusive, with a non-parole period of 18 months in each case. I propose the imposition of a head sentence of 3 years and four months imprisonment on each of counts 9 to 13 inclusive, with a non-parole period of 18 months in each case. Turning to the question of totality, I regard an aggregate sentence of 5 years' imprisonment, with an aggregate non-parole period of 3 years and 2 months as appropriate to the objective and subjective circumstances. 18 I propose the following orders :-

1. Leave to appeal granted and appeal allowed.
2. The sentences imposed by Solomon DCJ on 25 February 2005 are quashed.
3. On each of counts 1 to 4, a sentence of 3 years' imprisonment is imposed, to date from 14 January 2005, expiring 13 January 2008. In respect of each count, a non-parole period of 18 months is imposed, to date from 14 January 2005, expiring 13 July 2006.
4. On each of counts 5 to 8, a sentence of 3 years' imprisonment is imposed, to date from 14 September 2005, expiring 13 September 2008. In respect of each count, a non-parole period of 18 months is imposed, to date from 14 September 2005, expiring 13 March 2007.
5. On each of counts 9 to 13, a sentence of 3 years 4 months' imprisonment is imposed, to date from 14 September 2006, expiring 13 January 2010. In respect of each count, a non-parole period of 18 months is imposed, to date from 14 September 2006, expiring 13 March 2008.
6. The applicant is eligible for release to parole on 14 March 2008.

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