It should be obvious that the offences in the second and third categories were either instituted or re-commenced while the applicant was on parole for earlier fraud offences.
21 The prosecutor submitted to her Honour that the matters before the court were in the very worst category of offences of their nature. That was in my view an appropriate categorization of the criminal conduct disclosed by the offences. Her Honour did not find it to be in the worst category because of the applicant's mental condition, to which I shall refer later, but in my opinion the applicant was fortunate in that assessment. True it is that the amount obtained, although considerable, may not have been a record for offences of this kind and not all of it was received by him personally. But the commencement of this course of criminal activity while he was subject to a good behaviour bond and then persisting in it, despite the fact that he had been sentenced to imprisonment for fraud and released to parole, are seriously aggravating features that in combination with the nature and the extent of the applicant's fraudulent conduct made it a most serious example of conduct falling within the relevant provisions. The applicant's personal circumstances do little in my view to mitigate the offences.
22 It should be borne in mind that the maximum penalty with which her Honour was concerned and by which her discretion was limited was not the maximum for any one offence. Had her Honour come to the view, which in my view would have been open to her, that the criminal conduct engaged in by the applicant warranted a sentence of more than ten years imprisonment, there was no legal principle that would have prevented her from imposing a total sentence that, by way of cumulation, would have exceeded the maximum for any one offence. Nor would her Honour have had to come to a finding that the conduct fell within the worst category for offences of its kind before it was open for her to impose a sentence equivalent to the maximum for any one offence.
23 The first three grounds of appeal concern her Honour's decision to accumulate the sentences for some of the offences. It is argued that, because the applicant was involved in a single course of criminal conduct, her Honour had no reason, or gave no reasons, for not making all the sentences concurrent. It was submitted that her Honour may have been unduly influenced by the number of offences and overlooked that they were inflated by two facts, that there was a change in the relevant legislation and that the Crown abandoned its normal practice of charging a number of acts of fraud in a single count when they formed part of a single course of criminal conduct. It is further argued that the application of Pearce v The Queen (1998) 194 CLR 610 worked unfairly against the applicant because of the number of offences that he faced.
24 As I have already noted there were nine additional offences charged as a result of the change in the legislation, so that, in respect of each of nine of the twenty-three identities used by the applicant, two charges arose rather than one. In my view this fact is of lesser significance than it might have been given the number of identities adopted by the applicant and the extent of his fraudulent conduct in providing support for those identities when making the claims and in obtaining the benefits. However, her Honour was well aware of this anomaly, it having been brought to her attention by the prosecutor at the commencement of the hearing. She referred to it in her sentencing remarks and intended to make the offences arising from that circumstance concurrent with the counterpart offences under s 29D. Although her Honour did not achieve that result, this error did not have the effect of unduly inflating the overall sentence.
25 The Crown appearing before this Court has disputed that any practice existed whereby the prosecution relied upon a single charge to encompass separate acts of fraud performed as part of a single enterprise in obtaining benefits from the Commonwealth. It is unnecessary to determine whether such a practice did exist for at least three reasons: firstly, it is a matter for the prosecution to determine what charges are laid against an accused person as a result of his or her criminal activity; secondly, if such a general, indiscriminate practice did exist it is not one that, in my view, this Court should endorse; and thirdly, the relevant issue at the end of the day, so far as sentencing is concerned, is not the number of offences before the court but the criminality revealed by them.
26 The Crown has an almost unfettered discretion in determining what charges are to be brought against an offender provided that the nature or number of the charges does not result in oppression or unfairness to the accused; R v El-Hayek [2004] NSWCCA 25 at [42]. The time for any genuine complaint to be made as to the conduct of the prosecutor in this regard is at the time of, or shortly after, the charging of the offences rather than at the time of sentence or on appeal. The court is able to curb any excesses on the part of the prosecution, in the rare case where it is necessary to do so, by staying the prosecution of a charge or charges as being oppressive. In the more usual case, the sentencing court will be astute to make a proper assessment of the criminality actually arising from the offender's conduct and to ensure that the sentence imposed does not exceed what is appropriate to reflect the criminality of that conduct, regardless of the number of charges for which sentence is to be imposed.
27 However, I doubt that it would be appropriate for a prosecutor, in a case where there are a significant number of distinct and serious fraudulent acts over a lengthy period of time but against a single victim, to reflect that course of criminality in a single rolled up charge. Such a procedure has the tendency to mask the real extent of the criminal conduct perpetrated by the offender and can result in a sentence that fails to adequately reflect that criminality. It can also lead to issues about duplicity and fairness to the accused where he or she might have a defence available to some of the allegations but not to others. In the present case the prosecutor indicated to Judge Backhouse, in explanation for the number of charges, that the Crown had taken the course it did in fairness to the accused in case he had a defence to some particular charge or charges.
28 The prosecutor also stressed to her Honour that the Crown was relying upon the totality of the criminality involved rather than the number of charges and cautioned the sentencing judge against being "dazzled" by their number. There is in my view no reason to suspect that the sentencing discretion exercised by Judge Backhouse may have miscarried merely by reason of the number of the charges faced by the applicant and to which he had pleaded guilty.
29 Counsel for the applicant argued forcefully both in written submissions and orally that her Honour had erred in imposing cumulative sentences because this was a single course of criminal conduct aimed at defrauding the Commonwealth. I would reject the submission as in my view it would be inappropriate to class the present case as being one of a single course of conduct warranting concurrent sentences simply because the applicant had resolved on a particular course of criminal activity through which to obtain whatever money he required for whatever purpose. Not only did the applicant use a number of different identities, he also claimed different types of benefits, he used persons to assist him in claiming some of those benefits, and he made a number of false claims at different times during the course of his criminal enterprise. Perhaps more significantly the applicant instituted or resurrected fraudulent claims after he had been released to parole from serving a sentence for fraud offences. To regard those matters as being merely a continuation of the same course of criminal conduct engaged in before he was sent to prison, is in my view, incompatible both with a proper appreciation of the facts and established sentencing principles.
30 In any event, the fact that the offences arose from a single course of criminal conduct would not have required her Honour to impose concurrent sentences for those offences. See Wilkins (1988) 38 A Crim R 445. It is erroneous for a court to impose concurrent sentences on the basis that the offences arose from a single course of criminal conduct where the overall sentence imposed does not reflect the total criminality involved in that course of conduct: Gorman [2002] NSWCCA 516.
31 The contention that in some way the applicant was disadvantaged because of the application of Pearce is in my opinion completely misconceived. The fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences: the totality principle. Johnson v The Queen [2004] HCA 15 makes it clear that this principle was neither established nor affected by the decision in Pearce. The significance of Pearce, in this regard, was to indicate the preferred manner in which sentences are to be structured in order to achieve compliance with the totality principle. In particular this Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence is being passed. Johnson merely confirms that compliance with the totality principle can also be achieved by decreasing a sentence that is to be made wholly cumulative with a sentence for another offence.
32 In the present case her Honour sought to apply the principle in Pearce, but, with respect, not altogether successfully. However, her Honour did recognise that the totality of the criminality reflected by the offences before her required that there be some accumulation of the sentences to be imposed because the appropriate sentence for any one of the offences would not have been sufficient to reflect the totality of the criminality involved in all the offences. Further, her Honour sought to overcome the double punishment aspect arising from the change in legislation by making the sentences for the s 29D offences and the counterpart s 134.2 offences concurrent.
33 The applicant was aged 59 years at the date of sentencing and has some health problems. These matters can have little significance in determining the appropriate sentence having regard to the objective facts and, in particular, that the applicant committed further offences by inventing eleven identities after his release to parole in 2001. It is trite that advanced age and ill health cannot, generally speaking, provide an excuse for the commission of criminal activity. Nor do they themselves necessarily warrant leniency. In a case such as this where the applicant has a record for serious fraudulent conduct over a lengthy period of time and these present offences continued unabated until his arrest, these subjective considerations can be given little, if any, weight.
34 This is a case where the applicant's criminal antecedents give rise to considerations that were enunciated by the High Court in Veen v The Queen (No2) 164 CLR 465 at 477, and the applicant has "manifested in his commission of the instant offence[s] a continuing attitude of disobedience to the law". The sentences to be imposed had not only to act as general deterrence but also had to reflect an element of specific deterrence.
35 The next ground of appeal contends that her Honour failed to have sufficient regard to the applicant's mental state at the time of the commission of the offences. There were two reports before her Honour relevant to his mental state; the first a report by Dr Clark of February 2000, the second a report of Dr Carne dated 20 January 2003. Dr Clark opined that the applicant was suffering from a Bipolar Disorder and his feelings of "over-valued ideas of his own worth and capabilities are grandiose".
36 Dr Carne, however, did not believe that the applicant was suffering from a mental illness but that he had a Personality Disorder "by virtue of his tendency to self-isolation, his feelings of being an outcast from childhood and his predisposition to help others without regards to the consequence for himself". He thought that there may be some form of treatment available to assist the applicant but stated "it would be difficult to offer a prognosis without first assessing the response to an initial period of treatment". Dr Carne found that the applicant's criminal conduct was related to his personality disorder particularly manifesting in "his fraudulent use of disability allowances, not primarily for himself, but to support his friends".
37 Judge Backhouse took into account the applicant's mental state as a mitigating factor in assessing his criminal responsibility. She also was conscious of that line of authority that holds that general deterrence may be given less weight in a case where the offender suffers from a significant mental disability. In my view the sentence imposed does not indicate that her Honour mistook or otherwise failed to appreciate the significant of the applicant's mental state, such as it was. The repetitious nature of his offending over a very lengthy period indicates that he is an entrenched fraudster and he is not an inappropriate subject for a sentence involving the full measure of general deterrence that such criminal conduct warrants.
38 The final matter of complaint was that her Honour failed sufficiently to take into account that the applicant will serve his sentence on protection. There was in evidence before Judge Backhouse a letter from the NSW Police Service which explained that the applicant had, during the course of his imprisonment before his release in March 2001 given information to police investigating a gaol murder. That information was not considered to be crucial to the Crown case and the applicant was not called at the trial of the alleged offender.
39 The current position is that the applicant is housed at the Junee Correction Centre in the Special Management Area Placement (SMAP), which offers protection without segregation from other prisoners with similar concerns. There are presently 450 inmates being held in the SMAP. The applicant has full access to employment, TAFE programmes, and recreational opportunities. There is no evidence that his imprisonment will, physically at least, prove more onerous to him by reason of his protected status. Although it was submitted that he would find prison more mentally stressful because of his protected status, there is no evidence to that effect and I would not be prepared to infer it in the applicant's case at least. The applicant must have known that further criminal activity after his release to parole would inevitably return him to custody, and to protection. In all of these circumstances there would have been no requirement, and no justification, for her Honour to have given any mitigation by reason of his protected status.
40 Although the sentence imposed was a substantial one, especially having regard to other cases to which we were referred, and at the top of the existing range, it was in my view a sentence well justified by the objective facts.
41 Insofar as the unsentenced count 25 is concerned the Crown has submitted that this Court should remit the matter to the District Court. I agree as I do not believe this Court has any jurisdiction to pass a sentence where the sentencing court has failed to do so. This is unsatisfactory because the Crown concedes that any sentence imposed for that count would not affect the term of the sentence to be served by the applicant. However, it seems to me to be inappropriate that the applicant should have been convicted of an offence but remain unsentenced for it.
42 I propose that leave to appeal be granted but the appeal be dismissed. The matter is to be remitted to the District Count only for the purpose of that Court sentencing the applicant in respect of count 25 on the committal document.
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