R v Tooth

DATE: 10 October 2001 REGINA v WILLIAM RICHARD TOOTH JUDGMENT

1 GROVE J: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against the sentence imposed by his Honour Judge Twigg as a consequence of the applicant adhering to his plea of guilty to two charges of using a false instrument, being in each case a bank cheque, contrary to s 300(2) of the Crimes Act 1900. The applicant had pleaded guilty to these charges before a magistrate and was then committed for sentence under s 51A of the Justices Act 1902. The maximum penalty prescribed under s 300(2) is imprisonment for 10 years. 3 His Honour sentenced the applicant in respect of each charge to imprisonment for 4 years and specified a non-parole period of 2 years. The sentences were to be served concurrently and to date from the expiration of the sentences then being served by the applicant. Those sentences were in effect six years to date from 5 May 2000 with a non-parole period to expire on 4 November 2004. Those sentences related to a large number of dishonesty or fraud offences. As a result of the sentences imposed by Judge Twigg the applicant is due for consideration for parole on 4 November 2006. His Honour also made a reparation order in the sum of $24,490.00. 4 Each offence for which the applicant was sentenced involved a stolen cheque; the first was made out for $390,637.75 and the second for $24,490.00. The two cheque forms had been included in a large number of blank cheques stolen on about 9 June 1999. On 29 February 2000 the applicant used these cheques to pay out two mortgages on a property he had purchased in May 1998. Having obtained the title deeds to the property, he then proceeded to complete the sale of it. However, the paying banks refused to honour the cheques because they were stolen and the former mortgagees contacted police. The applicant was arrested on 4 July 2000 and refused to answer questions in respect of the cheques. 5 At the time of the offences the applicant was on bail awaiting sentencing in the District Court for the offences for which he was sentenced on 5 May 2000. The facts and history of these offences are set out in this Court's judgment in R v Tooth [2000] NSWCCA 482. In allowing his appeal, this Court noted that the applicant had given considerable assistance in relation to the investigation of those matters. The applicant was given the benefit of a finding of special circumstances when this Court redetermined his non-parole period, a finding that had been denied to him by the sentencing judge. As I have already indicated, when he came before Judge Twigg he had a parole eligibility from 4 November 2004. 6 The applicant was born on 28 April 1953. His upbringing was unremarkable and he left home at the age of 20 years when he married. He resided in the rural property, which he and his wife had purchased, until 1986. They established an aircraft business, at one stage employing up to thirty persons. However, the business eventually failed and the applicant was declared bankrupt in 1993. He separated from his wife as a result of marital strain caused by their financial problems. He has three adult children from that marriage. In 1998 the applicant remarried but retained close contact with his children. In evidence before the sentencing judge the applicant said that he had been informed that his second wife was intending to seek a divorce. 7 In the pre-sentence report before Judge Twigg, the probation officer indicated he was unable from his inquiries to find any obvious underlying causes for the applicant's criminal conduct. The applicant told the officer that he attributed his offending to efforts to extricate himself from his financial difficulties. 8 The applicant gave evidence on the sentencing hearing that the current offences were committed to pay legal fees and ensure his wife had sufficient money while he was in custody for the offences for which he was then awaiting sentencing. He said that he had met a person named Chelliah who had suggested a scheme whereby the applicant could use stolen cheques to clear his property of the encumbrance of two mortgages and then sell the property to an associate of Chelliah, named Jain. The applicant obtained the cheques from a person by the name of Daniels who was to receive some of the proceeds of the sale of the property. 9 The applicant said in evidence that, when the bank did not meet the cheques, the mortgagee placed a caveat on the title and commenced Supreme Court proceedings to recover the title deeds from Chelliah. After his arrest the applicant contacted the solicitor for the mortgagee and provided him with a statement setting out what had happened. Ultimately, the applicant gave evidence on behalf of the mortgagee in the Equity Division of the Supreme Court on 26 April of this year. As a result of those proceedings the mortgagee recovered the title deeds and was intending to sell the property under the terms of the mortgage. 10 The applicant also gave evidence that he had provided information to the police of an admission made by a fellow inmate to a murder committed in the prison where the prisoner was serving his sentence. He had undertaken to give evidence against that accused at his trial. 11 On the hearing of the appeal it was contended that his Honour erred in the following three ways: (i) he failed to give the applicant a sufficient discount for his assistance to the authorities; (ii) he gave insufficient, if any, weight to the applicant's assistance to the victims by giving evidence in civil proceedings in the Supreme Court; (iii) the total sentence is manifestly excessive when considered in light of the overall length of the sentences he is to serve and the totality of the criminality involved in the offences for which he has been sentenced. 12 In sentencing the applicant Judge Twigg indicated that he was prepared to give the applicant a discount of 20 percent by reason his early plea and in accordance with the guideline laid down by this Court in R v Thomson and Houlton (2000) 49 NSWLR 383. His Honour was not persuaded on the applicant's evidence that the two men Chelliah and Jain were involved in the offence. He described the prisoner's version as a "shabby and deceitful attempt by the offender to shift his blame in the face of a long gaol sentence for his wrong doing". However, his Honour found that there was a need for rehabilitation that justified a variation in the statutory relationship between the head sentence and the non-parole period. 13 The first specific complaint made is that his Honour did not give sufficient credit for the applicant's offer of assistance to the authorities. It should be noted that it appears that this Court gave some benefit to the applicant for this assistance when determining the non-parole period for the earlier offences. However, in the circumstances of this case, the fact that he has received some benefit for the assistance does not disentitle him from further consideration of that matter. 14 Section 23 of the Crimes (Sentencing Procedure) Act is as follows: (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims, (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) the likelihood that the offender will commit further offences after release.

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. 15 Judge Twigg had before him both a hand-written statement of the prisoner and a formal police statement made by him in relation to the confession that he alleged had been made to him by another prisoner concerning the murder with which the prisoner had been charged and was then awaiting trial. There was also an interdepartmental report from the police officer investigating the murder seeking a determination as to whether an Affidavit of Assistance should be prepared for the sentencing proceedings before Judge Twigg. That document contained an assessment of the applicant's assistance identifying the particular matters contained in the subparagraphs of s 23(2), (in setting out the passage I have used "T" for the applicant, "H" for the accused prisoner, and "D" for the deceased): "The evidence of [T] is quite significant in that [H] admits to a murder and states a modus operandi that is identical to the murder of [D]. (b)

The reliability of [T] is not known however, some strength goes towards truthfulness in the fact that both [T] and [H] were in the same section of a prison when the alleged admission was made. (c)

[T] has provided a signed statement and is prepared to give this evidence at trial. (d)

The statement was provided at what is believed to be the first real opportunity. (e)

[T] has not gained any benefit by reason of assistance to date. (f)

It is understood that [T] is under strict protective custody and that no harsher custodial condition will apply to him. (g)

No injury has been suffered by [T] or his family resulting from the assistance he has provided. (h)

The assistance provided is for an unrelated offence. (i)

It is not known as to whether [T] will commit further offences after release. His previous convictions relate to fraud matters and not matters of violence. (j) 16 After reviewing the material relating to the proffered assistance by the applicant, his Honour stated: I am not satisfied of the worth of the offer by the offender to give evidence, although there are documents before me to suggest that he may be called upon to give evidence, there is no certainty of it and indeed there being eye witnesses it is said I look with some degree of concern as to the worth of it.

His Honour concluded his consideration of the evidence of assistance by stating: "Notwithstanding my scepticism as to the worth of it and particularly in the presentation to me of this material and I note that particularly in [this] case as often happens a more detailed and better prepared submission is made to a Court of Appeal. I for the moment recognise that the Offender had offered to give evidence if required and it is that matter that I must take into account. The value of it, the fact that it may or may not be used and whether or not it leads to a conviction or assists in it are matters to take into account but the essential matter that I must take into account is the offer to give assistance" 17 The submission is that his Honour gave little or no discount for the assistance being proffered by the applicant and took into account matters that were irrelevant to an assessment of the applicable discount. Generally it was argued that what his Honour said in regard to the applicant's offer to give evidence was inconsistent with the policy consideration which lays behind the granting of sentencing discounts for assistance to authorities and would not result in encouragement to other persons to provide information to the police and offer to give evidence for the prosecution. 18 A specific matter that was said to be irrelevant was his Honour's criticism of the way the material relating to the assistance had been placed before him. Although his Honour does not identify in what way the evidence before him was deficient, it seems that his Honour was concerned that an official statement by the police as to the nature and quality of the assistance was not provided to him. If this is so, then, in my view, his Honour's criticism was justified. It was held in R v Gallagher (1991) 23 NSWLR 220 at 232 and reaffirmed in Yenice (1994) 72 A Crim R 234 at 238, that sentencing judges should be astute to ensure that they are given accurate, reliable and complete information concerning the alleged assistance and the benefits said to flow from it. This is because usually there is only one view being put forward by the parties to the sentencing judge upon such a matter. His Honour was entitled to more than the submissions made by the police officer to his superior. 19 If a sentencing judge were dissatisfied with the material placed before the court on this matter, it would generally be appropriate for the judge to bring this to the attention of the parties and allow them the opportunity, if they wished to do so, of supplementing the material in some way. However, it should be noted that the onus of proving the extent and value of the assistance is upon the offender. There is no transcript of the addresses and nothing to indicate whether such an offer was made by his Honour. Be that as it may, it does not seem to me that his Honour used the unsatisfactory nature of the material to disadvantage the applicant. His Honour made it clear that, notwithstanding the way the material had been presented to him, he accepted that the applicant had offered to give assistance. However, his concern was with the value of that offer. 20 His Honour was bound to have regard to the usefulness of the assistance in his determination whether, and to what extent, he should reduce the sentence to be imposed upon the applicant. Section 23(2)(b) requires the court to have regard to the "significance and usefulness" of the assistance given or offered. However, it is not the case that simply because the assistance is of no value to the authorities that it must be disregarded, Yenice at 239, R v Ward (NSWCCA, unreported, 29 May 1995). 21 It is submitted that his Honour erred in taking into account, in determining the value of the assistance the following matters: that there was no certainty that the applicant would be called to give evidence; that his Honour characterised the assistance as being "the offender's role may be only as to telling of an alleged confession or admissions by one of the alleged offenders"; and the fact that there were eye-witnesses to the killing. There is some merit in the first complaint but not in the latter two. 22 There will be virtually no occasion when a sentencing court can be certain that that a person offering to give evidence for the prosecution will be called at a trial. Therefore, at the sentencing stage, any assistance that includes the offer to give evidence can only be assessed upon the basis that the offer may be taken up by the prosecution at some time in the future. There are many and obvious reasons why this is so. For example, the offender may not be required to give evidence because the trial for some reason may not eventuate: the accused might plead guilty or for some reason the prosecution may be terminated notwithstanding the evidence on offer. However, if the material before the sentencing judge indicated that the prosecution did not intend to use the evidence on offer because, for example, it was regarded as unreliable, this would be a relevant matter in assessing the usefulness of the assistance. 23 In the present case there was nothing to suggest that the applicant's offer was not genuine or that the Crown would not take up the offer if the trial proceeded. The applicant gave evidence and it was never suggested to him that his allegation was untrue or that he did not intend to give evidence if required. In my view it was not open to his Honour to disparage the offer of assistance on the basis that the prosecution might not use the applicant's evidence or that, if it were used, it might not lead to, or assist in obtaining, a conviction. 24 However, in assessing the "significance and usefulness" of the offer to give evidence, the sentencing judge must take into account, to some degree, the probable impact of the evidence on offer. So, if the evidence of the offender to be sentenced is the only evidence upon which the Crown can rely to prove the guilt of an accused, that fact would indicate that the evidence was very significant. If it were merely corroborative of some other evidence, it would not be so valuable and the discount not so great. Another relevant matter of course would be the nature of the charge to which the evidence relates. In the present case the fact that the material before the trial judge indicated that the applicant's evidence was not the only evidence to prove the accused's participation in the murder was a relevant matter for the sentencing judge to take into account. 25 It was submitted that his Honour had no material upon which he could assess the significance of the other evidence to be used by the prosecution in the trial of the accused for murder. But the simple answer is that it was for the applicant to substantiate the value of his evidence and, therefore, the quantum of the discount. But in any event, I doubt that it is necessary for the sentencing judge to embark upon such a detailed assessment of the value of the evidence on offer as counsel suggests. There must be limits upon what a sentencing judge can reasonably be required to take into account when determining the appropriate discount to give a particular offender. The significance and usefulness of the assistance, although an important consideration, is only one of a number of matters to which the section requires the judge to have regard in determining whether to give a discount and what it should be in a particular case. The fact that the evidence falls into a category which is generally considered to be unreliable as it did in the present case, is a matter which the trial judge should take into account in a broad assessment of the value of the evidence. 26 The next area in which it was said that His Honour erred was his failure to take into account the fact that the applicant had given information and evidence to assist the victims of his fraud to recover their losses. I doubt that there is much significance in such a matter by way of mitigation apart from the fact that it may show contrition and remorse, factors that his Honour found were present in any event. It amounts to little more than the applicant doing what he could to redress the results of his crimes. Where that criminal activity is, as it was here, a planned and deliberate criminal fraud there is little mitigation in such conduct. It would have been a matter of aggravation had the mortgagees not been able to recover the title deeds and redress the loss: see Phelan (1993) 66 A Crim R 446 at 448. In any event his Honour specifically mentioned the fact that the applicant had given evidence in equity proceedings in the Supreme Court and there was little more that he needed to say on the subject. 27 Finally, it was submitted that the total sentence was manifestly excessive by reason of the fact that, in accumulating the sentences upon those being served, his Honour paid insufficient regard to the question of totality. Further, it was submitted that his Honour erred in the non-parole period specified notwithstanding that his Honour found that there were special circumstances applying by reason of, what his Honour described as, the need for rehabilitation. It should be noted that his Honour indicated what the terms and condition of the applicant's parole should be. In light of the fact that the applicant's sentence was more than three years and his Honour could not make a parole order, there was no point in his Honour indicating the terms of any parole order that might be made by the parole board once the applicant was eligible for parole. 28 In my view the sentencing judge erred in the manner in which he evaluated the offer of the applicant to give evidence for the prosecution. But I am not satisfied that at the end of the day the sentence imposed was not an appropriate one even taking into account a proper discount for assistance. His Honour did not indicate the discount he was giving for the assistance or the total discount given to the applicant. As I have already indicated, his Honour gave a 20 percent discount for the pleas of guilty. I believe that a total discount of one third would have been appropriate in the circumstances of this case. However, the sentence of 4 years seems to me to be an appropriate one even taking into account the discount for assistance. These offences were serious matters of fraud committed while the applicant was on bail awaiting sentence for other matters. There was little, if anything in mitigation other than some expressions of, and actions evidencing, remorse. A starting sentence of six years before discount seems to me to be an appropriate one. There was a significant element of both general and specific deterrence to be reflected in the sentence. 29 Nor am I persuaded that there was any error in the total sentence imposed. The criminality involved in these offences was quite separate and distinct from that for which he was sentenced on 5 May and the present sentences were appropriately made cumulative upon those sentences. A total sentence of 8½ years is not in my view disproportionate to the totality of the criminality involved in the offences for which he was sentenced on 5 May and the present two offences. His criminality stretched over a period of some 11 years and involved frauds of a very substantial nature having regard both to the acts of criminality involved and the money obtained. The particulars of the earlier offences are set out in the previous judgment of this Court. They reflect a number of separate and serious fraudulent schemes in which the applicant was involved. The sentences imposed for those matters were considerably discounted because of assistance the applicant had given in respect of their investigation. 30 As against that overall sentence the effect of the non-parole period fixed by his Honour was that the applicant is to serve 6½ years before being eligible for release to parole. The statutory ratio on a total sentence of 8½ years would have produced a non-parole period of 6 years 4 months. To reduce the sentence imposed by his Honour to bring about a non-parole period of that length would be merely tinkering. I can see no reason why there should be a longer parole period than two years or why a lesser non-parole period should be imposed. There were no apparent underlying problems which led to the criminality and which would need to be addressed during the parole period. The applicant is a man of 47 years who, after many years as a model citizen, turned to a life of crime. He will need assistance to re-establish himself in the community when released from custody but in my view that can be achieved by the parole period which his Honour fixed. 31 I propose that the application for leave to appeal be allowed but the appeal be dismissed.

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