R -v- BALDOCK [2010] WASCA 170 (17 August 2010)

R -v- BALDOCK [2010] WASCA 170 (17 August 2010) - WASCA 2010 case summary — Zoe

[106]

Having regard to the factors bearing upon sentence canvassed in earlier discussion I am minded to give considerable weight to the need for general deterrence. It is for that reason and having regard to the principles in previously decided cases concerning fraud of this kind that I consider that a term of imprisonment must be imposed in order to satisfy the requirements of the Crimes Act, and no other alternative is appropriate.

I regard the absence of personal gain in accordance with the observations in Pearce's case as a matter going to the seriousness of the offence rather than to mitigation. It ameliorates the sentence that might otherwise have been imposed. I take account also of your role as an employee subject to directions. To my mind a term of 6 years could be regarded as a starting point for an offence of this kind. When I turn to the mitigating factors, I must take account of your plea of guilty, your good character and your domestic circumstances at the time and the present.

In other words, I must give weight to my findings in summary form and to what has been said on your behalf. I give weight to the fact that you were in a subordinate role which made it difficult for you to resist the directions of your employer to proceed with the scheme. That is certainly not a sufficient excuse for your wrongdoing but it can be properly considered as a matter in mitigation. I give considerable weight also to your prior good character and to the indications that you are unlikely to reoffend and fully appreciate the nature of your wrongdoing. I take account of the fact that you were under pressure due to the ill health of your wife at the time of the offending.

When I draw all these factors together I am provisionally of the view that a term of imprisonment of three years four months would be an appropriate disposition.

Having regard to the findings I have made, I will allow a discount of 40% in respect of your cooperation in the manner allowed for by s 21E of the Crimes Act. The term of 3 years 4 months that I would otherwise have imposed is thus rounded off and reduced to 2 years.

I apply the same reasoning to the remaining counts because to my mind they can all be placed within the same framework of wrongdoing and the mitigating circumstances mentioned earlier, notwithstanding that separate years are involved. Accordingly I have in mind to impose a term of imprisonment of two years in respect of each of the four other counts.

This would give rise to an effective aggregate term of imprisonment of 10 years if the terms were to be served cumulatively.

It is apparent from the decided cases that an appropriate sentence is to be fixed for each offence followed by consideration of cumulation or concurrence and then by questions of totality. To the extent to which two or more offences contain common elements it would be wrong to punish the offender twice, with the result that concurrence is appropriate where there is essentially one transaction or commonality is evidenced.

The totality principle enables a court to mitigate what strict justice would otherwise indicate that the overall sentence to be served is inappropriately long. The key factor is proportionality, with a view to ensuring that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. An appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences.

To my mind, the circumstances of the present case arguably bring into play the one transaction rule. However, in any event, having regard to the totality principle and the question of what is a just an appropriate measure of the total criminality involved, it is necessary in my view to take account of the fact that this was essentially an integrated course of conduct in which the various events were linked to a decision allegedly taken early on by your employer, and acted on by you, to carry the scheme into effect. Accordingly, I do consider that an adjustment is necessary pursuant to the totality principle.

With that thought in mind, and notwithstanding submissions of the prosecution suggesting an element of cumulation is appropriate, I am of the view that the proposed term for each of count 2, count 3, count 4 and count 5 should be served concurrently with the proposed term for the count 1 offence.

This would give rise to an effective aggregate term of imprisonment of two years.

[267]

The approach of the court in Talbot was:

(a) to construe the Crimes Act 1914 (Cth), s 16A(1) as containing as part of its content the relevant common law, including the principle of 'double jeopardy'; and

(b) to conclude thereby that a State law which purported to abolish double jeopardy was inconsistent with the Crimes Act, s 16A(1) under the Australian Constitution, s 109 and was, therefore, pro tanto inoperative.

With respect, there may be difficulties in this approach. First, it is not clear that the analysis would begin with s 109, rather than ss 68, 79 and 80 of the Judiciary Act. The co-ordinate operation of s 109, on the one hand, and the 'pick up' provisions of the Judiciary Act, on the other, and their order of application is not always an easy question. Generally, any enquiry about s 109 can be seen to be the first part of the analysis, as only operative State law will be picked up. Here, however, an Act of a State Parliament concerning how a court exercises power, on its face, cannot have anything to say about how a court (whether State or Commonwealth) exercises federal jurisdiction. That jurisdiction is of another polity, the Commonwealth. The State Act becomes relevant only through Commonwealth law making it applicable as 'surrogate federal law'. Thus, it may be problematic to assert that there could be any inconsistency between the State Act, as such, and the Commonwealth Act, for the purposes of s 109.

Secondly, if s 16A(1) does contain all relevant common law, there may be an issue as to its validity: cf Western Australia v Commonwealth [1995] HCA 47; 183 CLR 373 at [145] and following.

Thirdly, s 16A(1) may assume a body of law by reference to which what is 'appropriate in all the circumstances' can be judged. Ordinarily, the common law of Australia (to the extent modified by Commonwealth and State statute law) is picked up and made relevant to cases in federal jurisdiction by the Judiciary Act, s 80.

Thus, fourthly, there may be a real issue as to the correctness of the construction of s 16A(1) in Talbot.

Fifthly, if the construction of s 16A(1) is more limited than identified by Blow J in Talbot, there may be no reason (other Constitutional points aside) why the Judiciary Act, s 80 would not pick up the common law of Australia, modified by the CAR Act, s 68A, and why s 68A itself would not be picked by the Judiciary Act, ss 68 or 79.

I do not need to form or express final views on these points; but it seems to me that the above may be at least some of the architecture for any debate about the operation of the CAR Act, s 68A in Crown appeals against sentence on conviction for Commonwealth offences [7] - [13].

[370]

In R v Wall ((2000) 113 A Crim R 445; [2000] QCA 297), a 49 year old businessman without prior convictions was sentenced to three years imprisonment to be released on recognizance after six months for an offence of defrauding the Commonwealth by understating the value of stock at the close of a tax year. The amount defrauded was difficult to quantify but was in the tens if not hundreds of thousands dollars. This court varied the sentence by substituting for release after six months on recognizance, release after 12 months. The decision does not support the sentence imposed in this case: the Chief Justice (with whom McPherson JA and Mullins J agreed) found that the authorities supported a range for the head sentence of between three to five years imprisonment for what was one offence, not a series of offences, and that in that context a requirement to serve one third of a three year term was the maximum allowance for the mitigating circumstances when the offender had not pleaded guilty.

In R v Gay ([2002] NSWCCA 6) the New South Wales Court of Criminal Appeal varied a sentence of three years with release on recognizance after 12 months by substituting a recognizance release date on the date upon which the appeal was heard, which was less than eight months after the date of sentence. That offender was convicted of charges relating to his failure to declare part of his income in his own income tax returns, and to his being knowingly concerned in a company's failure to declare part of its income in its income tax returns, for five years. Gay is of no real value as a comparable decision because of some exceptional circumstances. That offender had not only subsequently met all the tax imposed in respect of his income and a substantial portion of that imposed in respect of the company's income, but he had paid very substantial amounts, far exceeding commercial rates of interest, by way of tax penalties; and in consequence of the offending and the administrative penalties imposed upon the offender, and a possible contribution by a lengthy delay in bringing proceedings, the offender had also lost his home and his health.

Reference was also made to R v Baunach; ex parte DPP (Cth) ([1999] QCA 207) in which the court varied a sentence of six years with a non-parole period fixed at 12 months by increasing the non-parole period to two years. The decision provides no support for the sentences imposed here. Whilst the amount misappropriated was over $800,000 and the offender's frauds caused significant losses both to the Commonwealth and to that tax agent's various clients, the court regarded the term of six years as being at the low end of any appropriate range and made it clear that the varied non-parole period was conservative because it was imposed on an appeal by the Commonwealth Director of Public Prosecutions.

Similarly, R v Hart; ex parte Cth DPP ([2006] QCA 39) provides no support for the sentences in this case. In R v Hart the court refused an application for leave to appeal against a sentence of seven years with a non-parole period of two years and nine months imposed upon an offender who was convicted on nine charges of defrauding the Commonwealth contrary to s 29D of the Crimes Act. The offender was also given a concurrent term of seven years imprisonment, with eligibility for parole after two years and nine months, for his conviction on a tenth charge, of dishonest application of money, or fraud, contrary to s 408C(1)(b) of the Criminal Code 1899 (Qld). The facts of the case are so different as to render it of no real assistance as a comparable decision. Roland Ruha's counsel relied upon a passage in the reasons of Jerrard JA (with whom McMurdo P and Atkinson J agreed) in which his Honour said that there was no reason in principle for not applying to sentences for Commonwealth offences the 'standard legislative assumption' (flowing from s 135(2)(d) of the Corrective Services Act 2000 (Qld)) that there should be parole eligibility at the mid-point of a sentence. Jerrard JA qualified that proposition by reference to the absence of any evidence or argument that the assumption led to any difficulties in that sentencing regime: ([2006] QCA 39 at [80]) but this court had held in terms (R v To and Do; ex parte Direction of Public Prosecutions (Cth) [1998] QCA 106; [1999] 2 Qd R 166 at 170; [1998] QCA 106) that the sentencing regime in the Crimes Act is inconsistent with the application of any such assumption derived from Queensland legislation.

In R v Holzberger ([2007] QCA 258), the court refused an application for leave to appeal from concurrent sentences for obtaining financial advantage by deception, attempting to obtain financial advantage by deception, and using a forged document of three years with release on recognizance after 15 months and two years with release on recognizance after 15 months. That offender received some $34,000 to which he was not entitled. That decision therefore provides some support for the appellant's contention about the proper sentence for Harris, who derived a larger sum than that from her part in the conspiracy. It provides no support for the sentence imposed upon Roland Ruha.

R v Thorne (unreported, Sives DCJ, District Court of NSW, No 373 of 2009, 27 March 2009), and R v Latimer (unreported, English DCJ, District Court of NSW, 14 December 2007), which involved broadly similar offending, provide some support for the sentence proposed by the appellant for Roland Ruha. Thorne who had no previous convictions but some subsequent convictions was given an effective sentence of five years and four months with a non-parole period of three years. Latimer, who obtained an amount of money which was similar to that obtained by Roland Ruha, was given an effective sentence of three years and three months with a non-parole period of one year and nine months.

In R v Kazacos; ex parte DPP (Cth) ([1999] QCA 218) the court varied an effective sentence of four years imprisonment with a non-parole period of four months imposed for offences including defrauding the Commonwealth by substituting for that non-parole period an order for release upon recognizance after 15 months. The offender had defrauded the Commonwealth of a little over $600,000 by transferring funds overseas through nearly 70 separate transactions and by using false bank accounts and passports to open the bank accounts. Although the larger amount of money defrauded in that case is a very material consideration, Roland Ruha's offending was even more serious than the offender's understatement of income in taxation returns in that case; that offender also had the benefit of unchallenged findings by the sentencing judge that he had become involved in the taxation fraud at the instigation of his son, had unsuccessfully remonstrated with his son, and had continued to be involved in the tax fraud to assist his son. Thomas JA pointed out that although the offender's heavy personal involvement demanded a substantial sentence, he was entitled to some reduction in comparison with the sentence that might be imposed upon an enthusiastic instigator; and that offender had also been penalised by the extraction of various substantial administrative penalties. When it is also borne in mind that Kazacos was decided at a time when the court generally adopted a moderate approach to sentences imposed in Crown appeals, the sentence sought by the appellant in this case is consistent with that imposed upon Kazacos [65] - [71].

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R -v- BALDOCK [2010] WASCA 170 (17 August 2010)

Legislation Cited (8)

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