R v FELL

Court of Criminal Appeal (NSW)|2004-02-03|Before: Giles JA, Hulme J, Adams J

CITATION : R v FELL [2004] NSWCCA 235 HEARING DATE(S) : 3 February 2004 JUDGMENT DATE : 14 July 2004

JUDGMENT OF : Giles JA at 1; Hulme J at 1; Adams J at 1 DECISION : The Crown appeal is dismissed.

PARTIES : Regina James Andrew Fell FILE NUMBER(S) : CCA 60400/03 COUNSEL : Crown: D Frearson Respondent: J Dalley SOLICITORS : Crown: S Kavanagh Respondent: K Madden

11 - IN THE COURT OF CRIMINAL APPEAL 60400/03

GILES JA HULME J ADAMS J

Wednesday 14 July 2004 R v JAMES ANDREW FELL Judgment 1 THE COURT: On 3 February last the Court heard and dismissed a Crown appeal in this matter, indicating its reasons would be published later. Hence these reasons. 2 The Respondent pleaded guilty to 14 charges alleging that he did dishonestly obtain for himself money by deception, namely by fraudulently crediting funds into his personal account from WES Components. The 14 charges related to transactions between 5 March 2001 and 17 July 2001 in amounts varying between $11,250 and $31,600. The total amount involved in these 14 offences was $326,324. 3 Also taken into account were 70 further offences occurring between 14 May 2000 and mid July 2001. As time went on the amounts involved in the offending tended to increase - firstly $30, then $50 and then $70. By about mid July there was an offence involving $650. The largest of these offences involved an amount of $9,681. The total amount involved in these 70 additional offences was $216,349.50. 4 The offences arose under Section 178BA of the Crimes Act and each of those charged rendered the Applicant liable to imprisonment for 5 years. On 18 August 2003, Judge Tupman imposed the following sentences in respect of the charges:- 1. In respect to counts 1 to 13 imprisonment for a period of 16 months commencing on 18 August 2003, the date of sentence. 2. In respect of count 14 and taking into account the 70 additional offences appearing on the Form 1, imprisonment for a period of 22 months commencing on 18 August 2003. 3. Each sentence was suspended upon the Respondent entering into a good behaviour bond to come up for sentence at any time if called on for any breach committed during the period of the bond. Additional conditions of the bonds were:- (a) That the Respondent accept the supervision and guidance of the probation and parole service. (b) That he continue to undertake psychiatric and psychological treatment as is recommended by his medial advisors. (c) That the supervision not be discontinued without further order of the court. 5 At the time of his offending, the Respondent was employed in the office of WES Components. The method by which he perpetrated his offences was by swiping or otherwise entering his key card in his employer's records in circumstances such that the transaction appeared to be a genuine credit or refund to one of the customers of his employer. The amount of each such transaction was automatically credited to the Respondent's bank account. He would seem also to have removed parts of printer rolls of transactions so that some or all of the subject transactions did not appear. 6 The Respondent's offending seems to have been motivated by a number of factors. He told a psychologist who later treated him that he felt like revenge for lack of promotion in responsibility or remuneration by his employer. He told Dr Strum, who interviewed the Respondent for the purposes of preparing a report for sentencing purposes that he heard voices telling him to steal. He told the sentencing judge - and there is at least some suggestion of this in Dr Strum's report - that the possessions he acquired as a result of his criminality helped him to feel successful, and the explanation he gave his family for these, viz of making money in his own business, made him feel secure and good. 7 Dr Strum himself opined that the Respondent's actions arose out of a long standing psychiatric illness and disorder, describing these as a Bipolar Affective Disorder with both Hypomanic and Depressive Episodes and a Schizotypal Personality Disorder. The psychologist, Ms O'Neill diagnosed the Respondent as suffering from a Schizoid Personality Disorder, and a Panic Disorder with Agoraphobia together with a Sub-clinical low non-verbal IQ. In addition the Respondent suffered from a medical neurological condition which gave rise to frequent - as many as 9 a day - seizures. 8 In fact the Respondent had first been treated by a psychiatrist when he was at school and having difficulties with the way he was then treated by his peers. After his offending was revealed he again consulted a psychiatrist and in September 2001 was referred to Ms O'Neill who continued treating him up to the time of sentence. By then he had also been diagnosed with tuberous sclerosis and small cervicothoracic syringomyelia with indications of epilepsy. 9 Judge Tupman seems to have largely accepted these diagnoses and that the Respondent's symptoms and condition started to become worse at about the time he started committing the offences. Her Honour observed:- "… I accept Dr Strum's opinion that the stealing, more probably than not, would not have occurred if his condition had been treated more effectively at the time, including if he had been on medication and in receipt of therapy… I accept the opinion of the psychiatrist that the Prisoner's commission of the offences was directly attributable to and associated with his psychiatric condition." 10 Her Honour also accepted that the Respondent's psychiatric illness and personality disorder were treatable and that treatment would reduce the likelihood of re-offending. Her Honour continued:- "The Prisoner has been seeing a clinical psychologist for treatment in relation to his diagnosed condition and has been in receipt of medication to deal with it. He has also undertaken therapy. His condition is now under control and I accept is likely to remain that way whilst ever he remains under psychiatric and psychological care. He would appear not to have had any ongoing treatment until after these offences came to light in July/August 2001. I accept that he was not aware, nor were his family, that in fact he suffered from the psychiatric condition to which Dr Strum has referred, nor the impact that it was having on his behaviour. He now is, as is his family and I accept that over the last two years the Prisoner has demonstrated a commitment to receive treatment for it and that the treatment has been successful." 11 The Respondent used a deal of the proceeds of his criminality to buy for himself designer clothes, rather than the second-hand ones from charity shops he was accustomed to purchase previously. He also bought a number of items of electronic and electrical equipment. These included 4 hammer drills and two electronic organs. Two organs were acquired so that the Respondent could "use one with each hand to compose music with". The unusual number of the drills, and one may infer the duplication of many other items, was so that "if one broke down, (the Respondent would) have spares". 12 In evidence the Respondent acknowledged that he knew from the outset that what he was doing was wrong. Indeed, from July to November 2000 he ceased his offending, in his words freezing his card so that it could not be used. He explained what he meant by "freezing his card". He froze it in the freezer in a glass of water, removing it occasionally for some legitimate purpose, and then re-freezing it. 13 In July 2001, the Respondent disclosed his offending to his parents. He then, in the knowledge that the police would become involved, instructed a solicitor to make contact with his employer, reveal his offending and repay to his employer $200,000 which had been invested. He also took steps to refund another $50,000 but that was prevented for a time in consequence of the employer being informed. Ultimately a total of $279,844.45 was refunded. 14 There was evidence that some months prior to July 2001, the Respondent's employer was making enquiries into the apparent loss of funds from his business but her Honour found that the Respondent's confessions were made out of remorse and guilt and without knowing that the employer was investigating the possibility that a staff member had been committing fraud. 15 Her Honour recognised that the Respondent's offending involved an abuse of trust and the offending serious. Her Honour described the offending as not at the top of the range but towards the middle in terms of seriousness of offences of the type. She observed that normally, fraud such as that practiced by the Respondent would result in full time imprisonment. In light of the fact that the plea was very early and a trial would have been lengthy and involved an understanding of a substantial quantity of documentation her Honour allowed a discount of 25% for the Respondent's plea. 16 Her Honour also took the view that there had been unacceptable and unexplained delay in the institution of the proceedings against the Respondent. Although it was in July 2001 that the Respondent's solicitor revealed to the victim the Respondent's offending and a great deal of detail in relation to it and the police were then notified, it was not until late October 2002 that the Respondent was asked to attend on the police and was charged. 17 In the interim, the Respondent had, in her Honour's view, taken major steps by way of rehabilitation, including psychological and psychiatric treatment and medication, and his condition was by then under control and likely to remain so provided such care continued. Her Honour also recorded that since July 2001, the Respondent had applied for some 600 jobs obtaining only one which lasted some 7 weeks until his employer ascertained that the Respondent was on medication which made his continuing employment with machinery potentially dangerous. The Respondent also established his first ever male to female relationship. The Respondent had been born in May 1968 and, prior to the commission of the subject offences, the Respondent had no criminal record. 18 Her Honour observed that had the Respondent's condition been appropriately treated earlier, the offences would probably not have occurred. These events and the psychiatric condition which prevailed at the time of offending led her Honour to observe that general and specific deterrence had much smaller parts to play in the sentencing exercise than usual. Her Honour observed that the Respondent made the confessions he did out of a sense of remorse and guilt. 19 Towards the end of her remarks, her Honour said: "However, it seems to me that this is a case where it is neither sensible nor appropriate to attempt to apportion individual sentences for each of the offences… Each of those which might otherwise attract custodial penalties would probably in the circumstances attract individual penalties of between 6 to 12 months if taken individually. The total criminality involved, it seems to me, absent the plea of guilty but taking into account the delay, assistance provided by the Prisoner, the psychiatric condition and other subjective circumstances would give rise to an overall period of imprisonment of about 2½ years. It would be appropriate, it seems to me, to reduce that to 22 months to take into account the 25% discount for the utilitarian value of the plea. … I acknowledge that the last of the offences in time must attract a somewhat higher appropriate sentence to take into account the additional 70 offences. However, it seems to me because of the considerations of total criminality, that each of the sentences should be served concurrently to reflect the fact that they are part of one overall episode of criminality, albeit committed over 15 months. I propose to give effect to these findings by fixing a twenty-two months sentence to the last of these offences and terms of sixteen months for each of the earlier thirteen. For the reasons that I have outlined in relation to the subjective circumstances of the Prisoner, it seems to me that his prospects of rehabilitation are considerably better advanced if he remains in the community undertaking his psychiatric treatment, being able to use the medication that has assisted him with that condition and being available for ongoing psychiatric and medical therapy and treatment. So far as this assessment of his prospects of rehabilitation is concerned I also take into account and accept the opinion of the Probation and Parole Service contained in the report of 22 July 2003 that he was thought to be unsuitable for periodic detention because he is a vulnerable individual at high risk of being exploited in a custodial setting who would be at greater risk because of the risk of seizures and psychiatric episode and the difficulties he would have functioning in a custodial setting because of his psychiatric and general medical condition and vulnerability." 20 Thus it was her Honour imposed the sentences she did. 21 It should be mentioned also that, on account of his mental condition, the Respondent was assessed by the Probation and Parole Service as unsuitable for a Community Service Order or for Periodic Detention. Both Dr Strum and Ms O'Neill expressed the view that the Respondent's condition would make it very (or extremely) difficult for him to deal with a gaol sentence. 22 The Crown's criticism of the sentencing process and its result was on a number of bases. It was submitted:- (i) The sentences imposed are manifestly inadequate and do not reflect the totality of the criminality including the abuse of trust, the planned persistent and systematic dishonesty involving a large amount of money and extending over a period of 14 months.

(ii) Her Honour's finding of "unacceptable and unexplained delay" from 31 July 2001 to 31 October 2002 was not reasonably open and there was no delay sufficient to warrant significant mitigation.

(iii) The Respondent's psychiatric condition was not such as to preclude knowledge of the gravity of his actions and hardly lessened the requirement of general deterrence.

(iv) Her Honour erred in regarding repayment as a matter justifying or significantly arguing for non-accumulation of sentences, given there was no evidence of any sacrifice involved in such repayment.

(v) Her Honour erred in her application of Pearce v The Queen (2001) 103 A Crim R 373 and in failing to partially accumulate any of the sentences. It was submitted that "concurrent sentences" on counts 1-13 were clearly within discretion, however, the circumstances clearly required consideration of partial accumulation of (those) sentences… with the sentence imposed on count 14. Ground 1 The sentences imposed are manifestly inadequate and do not reflect the totality of the criminality including the abuse of trust, the planned persistent and systematic dishonesty involving a large amount of money and extending over a period of 14 months. 23 It is convenient to defer consideration of this ground and deal with it in conjunction with the fifth ground.

Ground 2 Her Honour's finding of "unacceptable and unexplained delay" from 31 July 2001 to 31 October 2002 was not reasonably open and there was no delay sufficient to warrant significant mitigation. 24 During the hearing of the appeal counsel appearing for the Crown, correctly, virtually abandoned this ground. Having regard to the extent of the Respondent's disclosure it was ridiculous that it took the police some 15 months after they were made aware in July 2001 of the Respondent's offending to charge him. Undoubtedly in that the Respondent was able to pursue treatment and rehabilitation over this period there was benefit to him in the delay but it is no insignificant matter that someone, particularly someone with the Respondent's mental problems should have the prospect of a significant jail term hanging over his head for an unnecessary period of at least 12 months. While the evidence is not sufficient to indicate that it was all the fault of the Crown or its arms, in fact it took until August 2003 for the Respondent to be sentenced. 25 It is not inappropriate at this stage to mention also that the Notice of Appeal was not lodged until early October 2003 some 6 weeks after the imposition of sentence. There seems to have been no explanation for this delay other than the possibility the Crown was waiting for a copy of the remarks on sentence. As has been said, the appeal was heard in February 2004.

Ground 3 The Respondent's psychiatric condition was not such as to preclude knowledge of the gravity of his actions and hardly lessened the requirement of general deterrence. 26 While the first element in this ground may be accepted, the second does not follow. As Gleeson CJ said in Engert [1995] 84 A Crim R 67 at 70, "The circumstances that an offender suffers from a mental disorder may well be of considerable relevance in a number of respects to the sentencing task." As a passage quoted by his Honour on the following page makes clear, one of these respects is that such an offender is not an appropriate medium for making an example to others. Others were referred to by Wood CJ at CL in R v Henry [1999] 46 NSWLR 346 at [254]:- "The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice." 27 It is not to the point that all of the factors to which Wood CJ at CL referred are not relevant here. 28 Given her Honour's acceptance of the expert opinions to which the Court has referred above as to the causal connection between the Respondent's mental condition and his offending, she was well entitled to regard the importance of general deterrence as but a minor factor in the sentencing of the Respondent.

Ground 4 Her Honour erred in regarding repayment as a matter justifying or significantly arguing for non-accumulation of sentences, given there was no evidence of any sacrifice involved in such repayment. 29 This ground also fails. Quite apart from any question of remorse or contrition thereby demonstrated, the repayment by the Respondent of almost $280,000 meant that the loss consequent on his offending was some $260,000 rather than something of the order of $540,000. That is a difference significant enough to have an impact in terms of the appropriate sentence. 30 In saying that I do not suggest that, of itself, it justified the absence of accumulation of sentences but her Honour certainly did not base her decision to accumulate on the repayment. Indeed, it is not obvious that the repayment played any part in her decision in this regard.

Grounds 1 and 5 The sentences imposed are manifestly inadequate and do not reflect the totality of the criminality including the abuse of trust, the planned persistent and systematic dishonesty involving a large amount of money and extending over a period of 14 months. Her Honour erred in her application of Pearce v The Queen (2001) 103 A Crim R 373 and in failing to partially accumulate any of the sentences. It was submitted that "concurrent sentences" on counts 1-13 were clearly within discretion, however, the circumstances clearly required consideration of partial accumulation of (those) sentences… with the sentence imposed on count 14. 31 Both of these grounds would have to succeed were it not for the Respondent's mental condition and the part it played in the Respondent's offending. However that condition affects all of the five principal factors relevant to sentencing. General deterrence, the Court has already referred to. As passages to which the Court has already referred make clear her Honour regarded the success of the Respondent's treatment as making the need for specific deterrence also much less and that his rehabilitation would be best served by his remaining in the community. These findings were clearly open to her Honour. Indeed the Court agrees with them. In these circumstances the "protection of the community" factor may also fairly be regarded as satisfied. Demonstrably the fifth factor, retribution, must also have much less weight where a mental condition has the significance it does in the case of the Respondent. 32 It may be accepted that in most situations some accumulation of sentences would have been required. Indeed, the accumulation required could well have been greater than merely the sentence on the 14th count with concurrent sentences on the other 13. However, provided her Honour's conclusion that an appropriate total sentence was one of 22 months was one she was entitled to reach, and the sentence of 22 months on the 14th count was itself not excessive for that count, there was no obligation on her Honour to impose any such accumulation and to omit to do so did not offend the decision of the High Court in Pearce v R. 33 As has been often said, sentencing is not an exact science and requires the weighing of many factors, not all of which operate in the same direction. The circumstances were unusual and gave rise to a difficult sentencing task. The extent of offending was very serious but the Respondent's subjective situation demanded an outcome far different from that which, considered in isolation, the objective circumstances would have required. In the circumstances the Court is not persuaded that her Honour exceeded the legitimate bounds of her sentencing discretion. 34 It was for these reasons that the Court dismissed the Crown appeal. **********

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